UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
Sherritt International Corporation*
(Name of applicant)
*See Table of Co-Applicants below.
Bay Adelaide Centre East Tower,
22 Adelaide St. West, Suite 4220,
Toronto, ON M5H 3E4
(Address of principal executive offices)
Securities to be Issued Under the Indenture to be Qualified
Title of Class |
Amount | |
8.5% Second Lien Notes due 2027 | Approximately $319,000,000 aggregate principal amount |
Approximate date of proposed transaction:
On the Effective Date under the Plan (as defined herein).
Name and address of agent for service:
CT Corporation System
28 Liberty Street Floor 42, New York, New York, 10005
(telephone: (212) 894-8400)
With copies to:
Ward Sellers Senior Vice President, General Counsel and Corporate Secretary Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
The Applicants (as defined below) hereby amend this application for qualification on such date or dates as may be necessary to delay its effectiveness until: (i) the 20th day after the filing of an amendment that specifically states that it shall supersede this application, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), may determine upon written request.
Table of Co-Applicants
672538 Alberta Ltd.
672539 Alberta Ltd.
672540 Alberta Ltd.
1683740 Alberta Ltd.
Canada Northwest Oils (Europe) B.V.
CNWL Oil (Espana) S.A.
Dynatec Technologies Ltd.
OG Finance Inc.
Power Finance Inc.
SBCT Logistics Ltd.
Sherritt International (Bahamas) Inc.
SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited)
Sherritt International Oil and Gas Limited
Sherritt Power (Bahamas) Inc.
Sherritt Utilities Inc.
SI Finance Ltd.
SIC Marketing Services (UK) Limited
The Cobalt Refinery Holding Company Ltd.
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1. General Information
Name of Applicant |
Form of Organization |
State of Organization | ||
Sherritt International Corporation |
Corporation | Canada | ||
672538 Alberta Ltd. |
Corporation | Alberta | ||
672539 Alberta Ltd. |
Corporation | Alberta | ||
672540 Alberta Ltd. |
Corporation | Alberta | ||
1683740 Alberta Ltd. |
Corporation | Alberta | ||
Canada Northwest Oils (Europe) B.V. |
Corporation | Netherlands | ||
CNWL Oil (Espana) S.A. |
Corporation | Spain | ||
Dynatec Technologies Ltd. |
Corporation | Ontario | ||
OG Finance Inc. |
Corporation | Alberta | ||
Power Finance Inc. |
Corporation | Alberta | ||
SBCT Logistics Ltd. |
Corporation | Canada | ||
Sherritt International (Bahamas) Inc. |
Corporation | Bahamas | ||
SICOG Oil and Gas Limited SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited) |
Corporation | Barbados | ||
Sherritt International Oil and Gas Limited |
Corporation | Alberta | ||
Sherritt Power (Bahamas) Inc. |
Corporation | Bahamas | ||
Sherritt Utilities Inc. |
Corporation | Barbados | ||
SI Finance Ltd. |
Corporation | Ontario | ||
SIC Marketing Services (UK) Limited |
Corporation | United Kingdom | ||
The Cobalt Refinery Holding Company Ltd. |
Corporation | New Brunswick |
Sherritt International Corporation (the Corporation) is the issuer of the 8.5% Second Lien Notes due 2027 (the New Second Lien Notes) to be qualified herein, and is referred to herein as the Issuer or the Applicant. Each
1
of the other applicants named above are guarantors of the New Second Lien Notes and are herein referred to as the Guarantors or the Co-Applicants (and together with the Applicant, the Applicants).
2. Securities Act Exemption Applicable
Existing Notes Exchange Reliance on Section 3(a)(10) of the Securities Act
In connection with certain transactions (collectively, the Transaction) to be implemented by way of an arrangement (the Arrangement) pursuant to a plan of arrangement (the Plan) under Section 192 of the Canada Business Corporations Act, the Issuer intends to, on the implementation date of the Plan (the Effective Date), exchange all of the outstanding 8.00% senior unsecured debentures of the Issuer due November 15, 2021, 7.50% senior unsecured debentures of the Issuer due September 24, 2023, and 7.875% senior unsecured notes of the Issuer due October 11, 2025 (collectively, the Existing Notes), in the aggregate principal amount of approximately $588.1 million, together with all accrued and unpaid interested in respect of the Existing Notes (at the contractual non-default rate) up to but excluding the Effective Date (the Accrued Interest) for (a) New Second Lien Notes in the aggregate principal amount of approximately $294.05 million plus the amount of the Accrued Interest to be issued by the Issuer and guaranteed by the Guarantors, and certain early consent cash consideration (collectively, the Exchange Transaction) as follows:
(i) | each Early Consenting Noteholder shall receive, in exchange for its Existing Notes: (a) New Second Lien Notes in an aggregate principal amount equal to (1) 50% of the principal amount of Existing Notes held by such Early Consenting Noteholder on the Effective Date plus (2) the Accrued Interest owing in respect of such Early Consenting Noteholders Existing Notes, and (b) cash in an amount equal to 3% of the principal amount of Consent Notes held by such Early Consenting Noteholder as at the Effective Date; and |
(ii) | each Noteholder that is not an Early Consenting Noteholder shall receive, in exchange for its Existing Notes, New Second Lien Notes in an aggregate principal amount equal to (1) 50% of the principal amount of Existing Notes held by such Noteholder on the Effective Date plus (2) the Accrued Interest in respect of such Noteholders Existing Notes, |
all as further described in the Issuers Management Information Circular (the Information Circular), incorporated by reference herein as Exhibit T3E. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to such terms in the Information Circular. Unless otherwise stated, all monetary amounts contained herein are expressed in Canadian dollars.
The New Second Lien Notes will be issued under an indenture (the New Notes Indenture) to be qualified by this application for qualification (this Application). A form of the New Notes Indenture will be filed by amendment to this Application.
The final principal amount of New Second Lien Notes to be issued pursuant to the Transaction will depend on the aggregate amount of interest accrued in respect of the Existing Notes up to the Effective Date. Based on an Effective Date of April 30, 2020, the aggregate principal amount of New Second Lien Notes to be issued would be approximately $319 million.
The Exchange Transaction in connection with the New Second Lien Notes will be conducted in reliance on Section 3(a)(10) of the Securities Act. Registration of the distribution of the New Second Lien Notes under the Securities Act is not required by reason of the exemption from registration provided by Section 3(a)(10) of the Securities Act.
Section 3(a)(10) of the Securities Act exempts from the general requirement of registration under the Securities Act securities issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of the issuance and exchange are approved by a court or other governmental authority that is expressly authorized by law to grant such approval, after a hearing upon the fairness of such terms and conditions of such issuance and exchange at which all persons to whom the securities will be issued in such exchange have the right to appear.
2
The three main elements of the Section 3(a)(10) exemption are (a) an exchange of outstanding securities, claims or property interests, (b) a fairness hearing and (c) court approval of the issuances of securities in exchange for securities, claims or property interests. As described below and in the Information Circular incorporated by reference herein as Exhibit T3E, each of these elements will be satisfied in connection with the issuance of the New Second Lien Notes.
(a) Exchange
Pursuant to the Arrangement, the New Second Lien Notes will be issued in exchange for the Existing Notes as more fully described in the Information Circular, incorporated by reference herein as Exhibit T3E.
(b) Fairness Hearing
On February 26, 2020 the Ontario Superior Court of Justice (Commercial List) (the Court) granted the Interim Order (the Interim Order), which, among other things, authorized: (a) the Issuer to send the Information Circular to, among others, the holders of the Existing Notes and (b) the calling and holding of the Debtholders Meeting to consider and vote upon the Arrangement to implement the Transaction. The Debtholders Meeting is scheduled to take place on April 9, 2020. A hearing to seek the Courts approval of the Arrangement, including that the terms and conditions of the Arrangement are fair to those to whom securities will be issued, is scheduled to be held by the Court, which is expressly authorized by law to hold the hearing, on April 16, 2020 at 11:00 a.m. (Toronto time), or such other time and/or date as may be approved by the Court. The hearing will be open to all persons holding the Existing Notes. Such persons have the right to appear at the hearing and to present evidence or testimony with respect to the fairness of the Arrangement. Measures will be taken pursuant to the Interim Order to provide relevant information and adequate and timely notice of the right to appear to the holders of the Existing Notes, including circulation of the Information Circular, and there will be no improper impediments to appearance by those persons at the hearing.
(c) Court Approval
The Issuer anticipates that on April 16, 2020 at 11:00 a.m. (Toronto time), or such other time and/or date as may be approved by the Court, it will seek Court approval of the Arrangement and the issuance of a Final Order by the Court, among other things, approving the Arrangement as fair and reasonable. The Court has been advised in connection with seeking the Interim Order and will be advised in connection with seeking the Final Order that its ruling will be the basis for claiming an exemption from registration under the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof.
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3. Affiliates
(a) For purposes of this Application only, certain directors and executive officers of the Applicants may be deemed to be affiliates of the Applicants by virtue of their positions with the Applicants. See Item 4, Directors and Executive Officers.
(b) The diagram filed herewith under Exhibit T3G indicates the relationship of the Applicants to each of their affiliates after the Effective Date. All of the entities appearing therein are expected to exist as of the implementation of the Plan in the ownership structure shown therein. Connecting lines indicate 100% ownership of voting securities, unless otherwise stated.
(c) Certain persons may be deemed to be affiliates of the Applicants by virtue of their holdings of the voting securities of the Applicants. See Item 5, Principal Owners of Voting Securities.
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4. Directors and Executive Officers
The following table lists the name of, and offices held by, each director and executive officer of the Applicants as of the date hereof.
Sherritt International Corporation
Name |
Address |
Office | ||
David Pathe |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
President, Chief Executive Officer and Director | ||
Maryse Bélanger |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director | ||
Sir Richard Lapthorne |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director and Chairman | ||
Adrian Loader |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director | ||
Timothy Baker |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director | ||
Lisa Pankratz |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director | ||
John Warwick |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Director | ||
Stephen Wood |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Executive Vice President and Chief Operating Officer | ||
Timothy Dobson |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Senior Vice President, Metals | ||
Elvin Saruk |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Senior Vice President, Oil & Gas and Power |
5
Edward (Ward) Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Senior Vice President, General Counsel and Corporate Secretary | ||
Andrew Snowden |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Senior Vice President and Chief Financial Officer | ||
Karen Trenton |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Senior Vice President, Human Resources |
672538 Alberta Ltd.
Name |
Address |
Office | ||
Andrew Snowden |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
Ward Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
672539 Alberta Ltd.
Name |
Address |
Office | ||
Andrew Snowden |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
Ward Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
672540 Alberta Ltd.
Name |
Address |
Office | ||
Andrew Snowden |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
Ward Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
1683740 Alberta Ltd.
Name |
Address |
Office | ||
Andrew Snowden |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
President, Chief Financial Officer and Director | ||
Ward Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Secretary and Director |
6
Canada Northwest Oils (Europe) B.V.
Name |
Address |
Office | ||
Intertrust (Netherlands) B.V. |
c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Secretary and Director | ||
Elvin Saruk |
c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Director | ||
Michiel van Schijndel |
c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Director |
CNWL Oil (Espana) S.A.
Name |
Address |
Office | ||
Elvin Saruk |
Paseo de la Castellana 121, entreplanta, oficina 2, 28046 Madrid, Spain |
President, Chief Executive Officer and Director | ||
Margarita Hernando |
Paseo de la Castellana 121, entreplanta, oficina 2, 28046 Madrid, Spain |
Secretary of the Board and Director | ||
Canada Northwest Oils (Europe) B.V. |
Paseo de la Castellana 121, entreplanta, oficina 2, 28046 Madrid, Spain |
Director |
Dynatec Technologies Ltd.
Name |
Address |
Office | ||
Andrew Snowden |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
Nathan Stubina |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Vice President, Technologies and Director | ||
Ward Sellers |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Secretary |
OG Finance Inc.
7
Name |
Address |
Office | ||
Andrew Snowden | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
Elvin Saruk | 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil, Gas & Power and Director | ||
Andrée-Claude Bérubé | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary | ||
Crystal Schreiber | 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Treasurer |
Power Finance Inc.
Name |
Address |
Office | ||
Andrew Snowden | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
Elvin Saruk | 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil, Gas & Power and Director | ||
Andrée-Claude Bérubé | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary | ||
Crystal Schreiber | 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Treasurer |
SBCT Logistics Ltd.
Name |
Address |
Office | ||
Andrew Snowden | Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
Ward Sellers | Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Secretary and Director |
Sherritt International (Bahamas) Inc.
Name |
Address |
Office | ||
Andrew Snowden | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
President and Director |
8
Margo Moree | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Chief Financial Officer and Director | ||
Andrée-Claude Bérubé | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Secretary | ||
Paul D. Knowles | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Assistant Secretary and Director |
SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited)
Name |
Address |
Office | ||
Elvin Saruk | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Senior Vice President, Oil & Gas and Director | ||
Amicorp Corporate Services (Barbados) Ltd. | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Assistant Secretary | ||
Andrée-Claude Bérubé | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Secretary | ||
Crystal Schreiber | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Controller | ||
Kathy-Ann Christian | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director | ||
Careen Byfield Leyshon | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director |
Sherritt International Oil and Gas Limited
9
Name |
Address |
Office | ||
Andrew Snowden | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
Ward Sellers | 4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director | ||
Elvin Saruk | 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil & Gas |
Sherritt Power (Bahamas) Inc.
Name |
Address |
Office | ||
Elvin Saruk | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
President and Director | ||
Paul D. Knowles | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Assistant Secretary and Director | ||
Crystal Schreiber | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Controller | ||
Andrée-Claude Bérubé | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Secretary | ||
Robert Ellenwood | c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Director |
Sherritt Utilities Inc.
Name |
Address |
Office | ||
Elvin Saruk | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Senior Vice President, Oil & Gas and Director | ||
Amicorp Corporate Services (Barbados) Ltd. | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Assistant Secretary |
10
Andrée-Claude Bérubé | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Secretary | ||
Crystal Schreiber | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Treasurer | ||
Kathy-Ann Christian | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director | ||
Careen Byfield Leyshon | c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director |
SI Finance Ltd.
Name |
Address |
Office | ||
Andrew Snowden | Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
Ward Sellers | Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Secretary and Director |
SIC Marketing Services (UK) Limited
Name |
Address |
Office | ||
Intertrust (UK) Limited | 35 Great St. Helens London, United Kingdom EC3A 6AP |
Secretary | ||
Andrew Snowden | Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Director |
11
Amy LeJune | 35 Great St. Helens London, United Kingdom EC3A 6AP |
Director | ||
Michelle OFlaherty | 35 Great St. Helens London, United Kingdom EC3A 6AP |
Director |
The Cobalt Refinery Holding Company Ltd.
Name |
Address |
Office | ||
Andrew Snowden | Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
President, Chief Financial Officer and Director | ||
Ward Sellers | Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Secretary and Director |
5. Principal Owners of Voting Securities
The following sets forth information as to each person owning 10% or more of the voting securities of Applicants as of the date of this application:
Sherritt International Corporation
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
N/A |
N/A | N/A | N/A |
672538 Alberta Ltd.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 500 | 100 | % |
672539 Alberta Ltd
12
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
672538 Alberta Ltd. 10101 114 Street Fort Saskatchewan, AB T8L 2T3 |
Common Shares | 100 | 100 | % |
672540 Alberta Ltd.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
672538 Alberta Ltd. 10101 114 Street Fort Saskatchewan, AB T8L 2T3 |
Common Shares | 100 | 100 | % |
1683740 Alberta Ltd.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 1,000,000 | 100 | % |
Canada Northwest Oils (Europe) B.V.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Oil and Gas Limited 425 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Shares | 130,608 | 100 | % |
CNWL Oil (Espana) S.A.
13
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Canada Northwest Oils (Europe) B.V. c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Shares | 140,610 | 100 | % |
Dynatec Technologies Ltd.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 10 | 100 | % |
OG Finance Inc.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 100 | 100 | % |
Power Finance Inc.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 100 | 100 | % |
SBCT Logistics Ltd.
14
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 100 | 100 | % |
Sherritt International (Bahamas) Inc.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 100,000 | 100 | % |
SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited)
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 171,366,100 | 100 | % |
Sherritt International Oil and Gas Limited
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 88,218,298 | 100 | % |
Sherritt Power (Bahamas) Inc.
15
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Shares | 323,831,460 | 100 | % |
Sherritt Utilities Inc.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt Power (Bahamas) Inc. c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Shares | 37,329,132 | 100 | % |
SI Finance Ltd.
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 10 | 100 | % |
SIC Marketing Services (UK) Limited
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Ordinary Shares | 100 | 100 | % |
The Cobalt Refinery Holding Company Ltd.
16
Name and Mailing Address of Shareholder |
Title of Class Owned | Amount To Be Owned |
Percentage of Voting Securities Owned as at the Effective Date upon Completion of the Arrangement |
|||||||
Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 |
Common Shares | 100,100 | 100 | % |
17
6. Underwriters
(a) The name and complete mailing address of each person who, within three years prior to the date of filing this Application, acted as an underwriter of any securities of the Applicants which are outstanding on the date of filing this Application are listed below, along with the title of each class of securities underwritten by the underwriter.
Name and Address | Title of Class of Securities Underwritten | |
Paradigm Capital Inc. 95 Wellington Street West, Suite 2101 Toronto Ontario M5J 2N7 |
Units (consisting of common shares and cobalt linked warrants of the Company) | |
Eight Capital 100 Adelaide Street West, Suite 2900 Toronto, Ontario M5H 1A3 |
Units (consisting of common shares and cobalt linked warrants of the Company) | |
National Bank Financial Inc. The Exchange Tower 130 King West, Suite 3200 Toronto, Ontario M5X 1J9 |
Units (consisting of common shares and cobalt linked warrants of the Company) | |
TD Securities Inc. TD Bank Tower, 8th Floor 66 Wellington Street West Toronto, Ontario M5K 1A2 |
Units (consisting of common shares and cobalt linked warrants of the Company) |
(b) There is no proposed underwriter for the New Second Lien Notes that are proposed to be offered in the connection with the New Notes Indenture that is qualified under this Application.
18
7. Capitalization
(a) The authorized and outstanding securities of the Applicants as of March 6, 2020 were as follows:
Sherritt International Corporation
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares(1) |
Unlimited | 397,284,433 | ||||||
8.00% senior unsecured debentures due November 15, 2021(2) |
$ | 400,000,000 | $ | 169,597,000 |
19
7.50% senior unsecured debentures due September 24, 2023(2) |
$ | 500,000,000 | $ | 197,767,689 | ||||
7.875% senior unsecured notes due October 11, 2025(2) |
$ | 250,000,000 | $ | 220,722,000 |
(1) | Does not reflect an aggregate of 10,376,607 common share purchase warrants and 47,232,200 cobalt-linked warrants. |
(2) | Aggregate principal amount outstanding. |
On the Effective Date, the Issuers capital structure will consist of the common shares and warrants held by existing Shareholders and the New Second Lien Notes. The amounts authorized and outstanding of the foregoing securities are anticipated to be as follows on the Effective Date:
Title of Class |
Amount |
Amount | ||||
Common Shares(1) |
Unlimited | 397,284,433 | ||||
New Second Lien Notes (2) |
$294,050,000 (plus the amount of Accrued Interest, as described above) | $ | $294,050,000 (plus the amount of Accrued Interest, as described above) |
(1) | Does not reflect an aggregate of 10,376,607 common share purchase warrants and 47,232,200 cobalt-linked warrants. |
(2) | Aggregate principal amount. |
672538 Alberta Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 500 |
672539 Alberta Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100 |
20
672540 Alberta Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100 |
1683740 Alberta Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 1,000,000 | ||||||
Class A Preferred Shares |
Unlimited | 408,221,220 | ||||||
Class B Preferred Shares |
Unlimited | 21,000,000 | ||||||
Class C Preferred Shares |
Unlimited | 1 | ||||||
Class D Preferred Shares |
Unlimited | 377,093,995 |
Canada Northwest Oils (Europe) B.V.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Shares |
400,000 | 130,608 |
CNWL Oil (Espana) S.A.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Shares |
N/A | (1) | 140,610 |
(1) | There is no concept of authorized capital in Spain. |
Dynatec Technologies Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 10 |
OG Finance Inc.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100 |
21
Power Finance Inc.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100 |
SBCT Logistics Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100 |
Sherritt International (Bahamas) Inc.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
500,000,000 | 100,000 |
SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited)
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 171,366,100 |
Sherritt International Oil and Gas Limited
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 88,218,298 | ||||||
Preferred Shares |
Unlimited | 0 |
Sherritt Power (Bahamas) Inc.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Shares |
500,000,000 | 323,831,460 |
Sherritt Utilities Inc.
22
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Shares |
150,000,000 | 37,329,132 |
SI Finance Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 10 |
SIC Marketing Services (UK) Limited
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Ordinary Shares |
Unlimited | 100 |
The Cobalt Refinery Holding Company Ltd.
Title of Class |
Amount Authorized |
Amount Outstanding |
||||||
Common Shares |
Unlimited | 100,100 |
Sherritt International Corporation
Each common share issued by the Issuer entitles the holder to one vote on all matters to be voted upon by shareholders.
672538 Alberta Ltd.
Each common share issued by 672538 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
672539 Alberta Ltd.
Each common share issued by 672539 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
672540 Alberta Ltd.
Each common share issued by 672540 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
23
1683740 Alberta Ltd.
Each common share issued by 1683740 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
Each preferred share issued by 1683740 Alberta Ltd. does not entitle the holder to vote on any matters to be voted upon by shareholders, except as required by the Business Corporations Act (Alberta).
Canada Northwest Oils (Europe) B.V.
Each share issued by Canada Northwest Oils (Europe) B.V. entitles the holder to one vote on all matters to be voted upon by shareholders.
CNWL Oil (Espana) S.A.
Each share issued by CNWL Oil (Espana) S.A. entitles the holder to one vote on all matters to be voted upon by shareholders.
Dynatec Technologies Ltd.
Each common share issued by Dynatec Technologies Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
OG Finance Inc.
Each common share issued by OG Finance Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
Power Finance Inc.
Each common share issued by Power Finance Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
SBCT Logistics Ltd.
Each common share issued by SBCT Logistics Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
Sherritt International (Bahamas) Inc.
Each common share issued by Sherritt International (Bahamas) Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited)
Each common share issued by SICOG Oil and Gas Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
Sherritt International Oil and Gas Limited
24
Each common share issued by Sherritt International Oil and Gas Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
Each preferred share issued by Sherritt International Oil and Gas Limited does not entitle the holder to vote on any matters to be voted upon by shareholders, except in the event such matter to be voted upon involves altering the rights of the holders of the preferred shares.
Sherritt Power (Bahamas) Inc.
Each share issued by Sherritt Power (Bahamas) Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
Sherritt Utilities Inc.
Each share issued by Sherritt Utilities Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
SI Finance Ltd.
Each common share issued by SI Finance Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
SIC Marketing Services (UK) Limited
Each ordinary share issued by SIC Marketing Services (UK) Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
The Cobalt Refinery Holding Company Ltd.
Each common share issued by The Cobalt Refinery Holding Company Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
25
8. Analysis of Indenture Provisions.
The analysis of provisions of the New Notes Indenture will be provided in an amendment to this Form T-3.
9. Other Obligors
No person, other than the Applicants, will be an obligor of the New Second Lien Notes.
10. Contents of Application for Qualification.
26
This Application comprises
(a) | Pages numbered 1 to 26, consecutively |
(b) | The statement of eligibility and qualification of the trustee under the New Notes Indenture. |
(c) | The following exhibits in addition to those filed as part of the statement of eligibility and qualification of the trustee: |
Exhibit |
Description | |
T3A.1* | Articles of Continuance of Sherritt International Corporation. | |
T3A.2* | Articles of Incorporation of 672538 Alberta Ltd., dated as of October 31, 1995. | |
T3A.3* | Articles of Incorporation of 672539 Alberta Ltd., dated as of October 31, 1995. | |
T3A.4* | Articles of Incorporation of 672540 Alberta Ltd., dated as of October 31, 1995. | |
T3A.5* | Certificate of Amendment and Registration of Restated Articles of 1683740 Alberta Ltd., dated as of April 24, 2014. | |
T3A.6* | Articles of Association of Canada Northwest Oils (Europe) B.V., dated as of November 15, 1974. | |
T3A.7* | Amendment of Articles of Association of Canada Northwest Oils (Europe) B.V., dated as of August 27, 2008. | |
T3A.8* | Charter of CNWL Oil (Espana) S.A., dated as of December 23, 1976. | |
T3A.9** | Charter of Merger of CNWL Oil (Espana) S.A., dated as of September 28, 1990. | |
T3A.10* | Articles of Incorporation of Dynatec Technologies Ltd., dated as of September 14, 2007. | |
T3A.11* | Articles of Incorporation of OG Finance Inc., dated as of October 18, 2012. | |
T3A.12* | Articles of Incorporation of Power Finance Inc., dated as of October 18, 2012. | |
T3A.13* | Certificate of Continuance of SBCT Logistics Ltd., dated as of August 23, 2019. | |
T3A.14* | Certificate of Amendment of SBCT Logistics Ltd., dated as of September 23, 2019. | |
T3A.15* | Memorandum of Association of Sherritt International (Bahamas) Inc., dated as of November 24, 1994. | |
T3A.16* | Articles of Association of Sherritt International (Bahamas) Inc., dated as of November 24, 1994. | |
T3A.17* | Articles of Incorporation of SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), dated as of October 31, 1995. | |
T3A.18* | Articles of Continuance of SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), dated as of October 29, 2008. | |
T3A.19* | Articles of Continuance of SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), dated as of August 27, 2015. |
27
T3A.20* | Articles of Amendment of SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), dated as of October 31, 2019. | |
T3A.21* | Articles of Continuance of Sherritt International Oil and Gas Limited, dated as of January 23, 1997. | |
T3A.22* | Articles of Association of Sherritt Power (Bahamas) Inc., dated as of November 1, 2006. | |
T3A.23* | Memorandum of Association of Sherritt Power (Bahamas) Inc., dated as of November 1, 2006. | |
T3A.24* | Articles of Association of Sherritt Utilities Inc., dated as of December 15, 1997. | |
T3A.25* | Memorandum of Association of Sherritt Utilities Inc., dated as of December 15, 1997. | |
T3A.26* | Articles of Continuance of Sherritt Utilities Inc., dated as of November 14, 2016. | |
T3A.27* | Articles of Incorporation of SI Finance Ltd., dated as of May 29, 2007. | |
T3A.28* | Articles of Association of SIC Marketing Services (UK) Limited, dated as of June 25, 2013. | |
T3A.29* | Memorandum of Association of SIC Marketing Services (UK) Limited, dated as of June 25, 2013. | |
T3A.30* | Articles of Incorporation of The Cobalt Refinery Holding Company Ltd., dated as of October 31, 1995. | |
T3A.31* | Articles of Amendment of The Cobalt Refinery Holding Company Ltd., dated as of November 16, 1995. | |
T3B.1* | By-Laws of Sherritt International Corporation. | |
T3B.2* | By-Laws of 672538 Alberta Ltd., dated as of November 6, 1995. | |
T3B.3* | By-Laws of 672539 Alberta Ltd., dated as of November 6, 1995. | |
T3B.4* | By-Laws of 672540 Alberta Ltd., dated as of November 6, 1995. | |
T3B.5* | By-Laws of 1683740 Alberta Ltd., dated as of June 13, 2012. | |
T3B.6* | By-Laws of CNWL Oil (Espana) S.A., dated as of dated April 12, 2016. | |
T3B.7* | By-Laws of Dynatec Technologies Ltd., dated as of September 14, 2007. | |
T3B.8* | By-Laws of OG Finance Inc., dated as of October 18, 2012. | |
T3B.9* | By-Laws of Power Finance Inc., dated as of October 18, 2012. | |
T3B.10* | By-Laws of SBCT Logistics Ltd., dated as of August 23, 2019. | |
T3B.11* | By-Laws of SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), dated as of November 10, 1995. | |
T3B.12* | By-Laws of Sherritt International Oil and Gas Limited, dated as of January 31, 1997. |
28
T3B.13* | By-Laws of SI Finance Ltd., dated as of May 29, 2007. | |
T3B.14* | By-Laws of The Cobalt Refinery Holding Company Ltd., dated as of November 14, 1995. | |
T3C** | Form of Indenture for the New Second Lien Notes | |
T3D.1* | Interim Court Order | |
T3D.2** | Final Court Order | |
T3E* | Management Information Circular | |
T3F** | Cross reference sheet showing the location in the New Notes Indenture of the provisions inserted therein pursuant to Section 310 through 318(a), inclusive, of the Trust Indenture Act (included in Exhibit T3C). | |
T3G* | Organizational Chart of Issuer and Affiliates | |
25.1* | Statement of eligibility and qualification of the trustee on Form T-6 |
* | Filed herewith. |
** | To be filed by amendment. |
29
Pursuant to the requirements of the Trust Indenture Act of 1939, the Applicants have duly caused this application to be signed on each of their behalves by the undersigned, thereunto duly authorized, in the city of Toronto, Ontario, on the tenth day of March, 2020.
SHERRITT INTERNATIONAL CORPORATION | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Senior Vice President, General Counsel and Corporate Secretary | ||
672538 ALBERTA LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
672539 ALBERTA LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
672540 ALBERTA LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
1683740 ALBERTA LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
CANADA NORTHWEST OILS (EUROPE) B.V. | ||
By: | /s/ Elvin Saruk | |
Name: Elvin Saruk | ||
Title: Director |
30
CNWL OIL (ESPANA) S.A. | ||
By: | /s/ Elvin Saruk | |
Name: Elvin Saruk | ||
Title: President and Chief Executive Officer | ||
DYNATEC TECHNOLOGIES LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
OG FINANCE INC. | ||
By: | /s/ Andrew Snowden | |
Name: Andrew Snowden | ||
Title: President | ||
POWER FINANCE INC. | ||
By: | /s/ Andrew Snowden | |
Name: Andrew Snowden | ||
Title: President | ||
SBCT LOGISTICS LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
SHERRITT INTERNATIONAL (BAHAMAS) INC. | ||
By: | /s/ Andrée-Claude Bérubé | |
Name: Andrée-Claude Bérubé | ||
Title: Secretary |
31
SICOG OIL AND GAS LIMITED | ||
By: | /s/ Andrée-Claude Bérubé | |
Name: Andrée-Claude Bérubé | ||
Title: Secretary | ||
SHERRITT INTERNATIONAL OIL AND GAS LIMITED | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary | ||
SHERRITT POWER (BAHAMAS) INC. | ||
By: | /s/ Andrée-Claude Bérubé | |
Name: Andrée-Claude Bérubé | ||
Title: Secretary | ||
SHERRITT UTILITIES INC. | ||
By: | /s/ Andrée-Claude Bérubé | |
Name: Andrée-Claude Bérubé | ||
Title: Secretary | ||
SI FINANCE LTD. | ||
By: | /s/ Andrew Snowden | |
Name: Andrew Snowden | ||
Title: President and Chief Financial Officer | ||
SIC MARKETING SERVICES (UK) LIMITED | ||
By: | /s/ Andrew Snowden | |
Name: Andrew Snowden | ||
Title: Director |
32
THE COBALT REFINERY HOLDING COMPANY LTD. | ||
By: | /s/ Ward Sellers | |
Name: Ward Sellers | ||
Title: Secretary |
33
Exhibit T3A.1
Certificate of Continuance | Certificat de prorogation | |
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions |
Sherritt International Corporation
Corporate name / Dénomination sociale
977985-0
Corporation number / Numéro de société
I HEREBY CERTIFY that the above-named corporation, the articles of continuance of which are attached, is continued under section 187 of the Canada Business Corporations Act (CBCA). | JE CERTIFIE que la société susmentionnée, dont les clauses de prorogation sont jointes, est prorogée en vertu de larticle 187 de la Loi canadienne sur les sociétés par actions (LCSA). |
Virginie Ethier
Director / Directeur
2016-06-03
Date of Continuance (YYYY-MM-DD)
Date de prorogation (AAAA-MM-JJ)
Form 11 Articles of Continuance Canada Business Corporations Act (CBCA) (s. 187) |
Formulaire 11 Clauses de prorogation Loi canadienne sur les sociétés par actions (LCSA) (art. 187) | |||
1 |
Corporate name | |||
Dénomination sociale Sherritt International Corporation | ||||
2 |
The province or territory in Canada where the registered office is situated | |||
La province ou le territoire au Canada où est situé le siège social ON | ||||
3 |
The classes and the maximum number of shares that the corporation is authorized to issue | |||
Catégories et le nombre maximal dactions que la société est autorisée à émettre The Corporation is authorized to issue an unlimited number of common shares. | ||||
4 |
Restrictions on share transfers | |||
Restrictions sur le transfert des actions None | ||||
5 |
Minimum and maximum number of directors | |||
Nombre minimal et maximal dadministrateurs Min. 3 Max. 15 | ||||
6 |
Restrictions on the business the corporation may carry on | |||
Limites imposées à lactivité commerciale de la société None | ||||
7 |
(1) If change of name effected, previous name | |||
Sil y a changement de dénomination sociale, indiquer la dénomination sociale antérieure Not Applicable / Sans objet (2) Details of incorporation Details de la constitution Amalgamated under the Business Corporations Act (Ontario) on December 1, 2010. | ||||
8 |
Other Provisions | |||
Autres dispositions See attached schedule / Voir Iannexe ci-jointe
| ||||
9 |
Declaration: I certify that I am a director or an officer of the company continuing into the CBCA. | |||
Déclaration : Jatteste que je suis un administrateur ou un dirigeant de la société se prorogeant sous le régime de la LCSA. | ||||
Original signed by / Original signé par | ||||
Edward Sellers | ||||
Edward Sellers |
|
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250(1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procedure sommaire, est passible dune amende maximale de 5 000 $ et dun emprisonnement maximal de six mois, ou lune de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous foumissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049. |
|
IC 3247 (2008/04) |
Schedule / Annexe
Other Provisions / Autres dispositions
The directors may appoint one or more additional directors, who shall hold office for a term expiring not later than the close of the next annual meeting of the shareholders, but the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders.
Form 2 Initial Registered Office Address and First Board of Directors Canada Business Corporations Act (CBCA) (s. 19 and 106) |
Formulaire 2 Siège social initial et premier conseil dadministration Loi canadienne sur les sociétés par actions (LCSA) (art. 19 et 106) | |||
1 | Corporate name | |||
Dénomination sociale Sherritt International Corporation | ||||
2 | Address of registered office | |||
Adresse du siège social 181 Bay Street, Brookfield Place 26th Floor Toronto ON M5J 2T3 | ||||
3 | Additional address | |||
Autre adresse | ||||
4 | Members of the board of directors | |||
Membres du conseil dadministration See attached schedule / Voir Iannexe ci-jointe | ||||
5 | Declaration: I certify that I have relevant knowledge and that I am authorized to sign this form. | |||
Declaration : Jatteste que je possède une connaissance suffisante et que je suis autorisé(e) à signer le présent formulaire. | ||||
Original signed by / Original signé par Edward Sellers | ||||
Edward Sellers | ||||
416-935-2881 |
|
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250(1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible dune amende maximale de 5 000 $ et dun emprisonnement maximal de six mois, ou lune de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049. |
|
IC 2904 (2008/04) |
Schedule / Annexe
Members of the board of directors / Membres du conseil dadministration
Resident Canadian Résident Canadien | ||||
Lisa Pankratz | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui | ||
Harold Stephen | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui | ||
David V. Pathe | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui | ||
Sir Richard Lapthorne | Mill Barn, Mill Lane West Turville, Aylesbury, Bucks HP22 5RG, United Kingdom |
No / Non | ||
Peter Gillin | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui | ||
Timothy Baker | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui | ||
Adrian Loader | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
No / Non | ||
Edythe A. Marcoux | 181 Bay Street, Brookfield Place, 26th Floor, Toronto ON M5J 2T3, Canada |
Yes / Oui |
Exhibit T3A.2
CORPORATE ACCESS NUMBER 20672538 BUSINESS CORPORATIONS ACT CERTIFICATE OF INCORPORATION 672538 ALBERTA LTD. WAS INCORPORATED IN ALBERTA ON OCTOBER 31, 1995 Registrar of Corporations REG 3066 (95/09)
20672538
ARTICLES OF INCORPORATION
1. | NAME OF CORPORATION: 672538 ALBERTA LTD. |
2. | THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS AUTHORIZED TO ISSUE: |
Capital |
The Corporation is authorized to issue one (1) class of shares, namely an unlimited number of Common Shares without nominal or par value (herein referred to as the Common Shares).
Common Shares
The holders of the Common Shares shall be entitled:
(a) | to vote at all meetings of shareholders, and on every poll taken at every such meeting, or adjourned meeting, every holder of Common Shares shall be entitled to one vote in respect of each such share held; |
(b) | the holders Common Shares shall be entitled to receive such dividends as and when the Directors in their discretion may declare thereon. |
3. | RESTRICTIONS IF ANY ON SHARE TRANSFERS: |
The right of shareholders to transfer or dispose of their shares in the Corporation shall be subject to the following restrictions:
(a) | Except where a transfer is made pursuant to the provisions of sub-clause 3(b) below, any transfer of shares in the Corporation shall require a resolution of the Board of Directors of the Corporation approving such transfer. |
(b) | Any share of a deceased shareholder may be transferred by his executors or administrators to any child or other issue, son-in-law, daughter-in-law, father, mother, brother, sister, nephew, niece, widow or widower of such deceased shareholder or to any other beneficiary named in the Will of such deceased shareholder and any shares of the Corporation standing in the name of the trustees of the Will of any deceased shareholder may be transferred upon any change of trustees to the trustees for the time being of such Will. |
4. | NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS: |
The Corporation shall have not less than one (1) director nor more than ten (10) directors. Subject to the provisions of the Business Corporations Act of Alberta, the directors may, between annual general meetings, appoint one or more additional directors of the Corporation to serve until the next annual general meeting of the Corporation provided that the total number of directors shall not at any time exceed the maximum hereinbefore prescribed.
5. | RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON: |
There shall be no restrictions as to the businesses which the Corporation may carry on.
6. | OTHER PROVISIONS IF ANY: |
(a) | The number of shareholders of the Corporation shall be limited to not more than fifty (50) persons (exclusive of persons who are in the employment of the Corporation or that of an affiliate within the meaning of the Business Corporations Act of Alberta and also exclusive of persons who, having been formerly in the Corporations employment or that of an affiliate, were, while in that employment, shareholders of the Corporation and have continued to be shareholders of the Corporation after termination of that employment); provided that where two (2) or more persons hold one or more shares in the Corporation jointly they shall, for the purpose of this sub-clause 6(a), be treated as a single shareholder. |
(b) | No invitation shall be made to the public to subscribe for securities of the Corporation. |
(c) | The Corporation shall have a lien on shares registered in the name of any shareholder who is indebted to the Corporation for any amount. |
7. INCORPORATORS |
DATE: October 30, 1995 |
NAMES |
ADDRESS |
SIGNATURE | ||
DONALD R. LEITCH | 1500, 407 - 2nd Street S.W. Calgary, Alberta, T2P 2Y3. |
/s/ Donald R. Leitch
|
FOR DEPARTMENTAL USE ONLY
CORPORATE ACCESS NO. _______________ | INCORPORATION DATE:_____________ |
- 2 -
Exhibit T3A.3
CORPORATE ACCESS NUMBER 20672539 BUSINESS CORPORATIONS ACT CERTIFICATE OF INCORPORATION 672539 ALBERTA LTD. WAS INCORPORATED IN ALBERTA ON OCTOBER 31, 1995 Registrar of Corporations REG 3066 (95/09)
20672539
ARTICLES OF INCORPORATION
1. | NAME OF CORPORATION: 672539 ALBERTA LTD. |
2. | THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS AUTHORIZED TO ISSUE: |
Capital
The Corporation is authorized to issue one (1) class of shares, namely an unlimited number of Common Shares without nominal or par value (herein referred to as the Common Shares).
Common Shares
The holders of the Common Shares shall be entitled:
(a) | to vote at all meetings of shareholders, and on every poll taken at every such meeting, or adjourned meeting, every holder of Common Shares shall be entitled to one vote in respect of each such share held; |
(b) | the holders Common Shares shall be entitled to receive such dividends as and when the Directors in their discretion may declare thereon. |
3. | RESTRICTIONS IF ANY ON SHARE TRANSFERS: |
The right of shareholders to transfer or dispose of their shares in the Corporation shall be subject to the following restrictions:
(a) | Except where a transfer is made pursuant to the provisions of sub-clause 3(b) below, any transfer of shares in the Corporation shall require a resolution of the Board of Directors of the Corporation approving such transfer. |
(b) | Any share of a deceased shareholder may be transferred by his executors or administrators to any child or other issue, son-in-law, daughter-in-law, father, mother, brother, sister, nephew, niece, widow or widower of such deceased shareholder or to any other beneficiary named in the Will of such deceased shareholder and any shares of the Corporation standing in the name of the trustees of the Will of any deceased shareholder may be transferred upon any change of trustees to the trustees for the time being of such Will. |
4. | NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS: |
The Corporation shall have not less than one (1) director nor more than ten (10) directors. Subject to the provisions of the Business Corporations Act of Alberta, the directors may, between annual general meetings, appoint one or more additional directors of the Corporation to serve until the next annual general meeting of the Corporation provided that the total number of directors shall not at any time exceed the maximum hereinbefore prescribed.
5. | RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON: |
There shall be no restrictions as to the businesses which the Corporation may carry on.
6. | OTHER PROVISIONS IF ANY: |
(a) | The number of shareholders of the Corporation shall be limited to not more than fifty (50) persons (exclusive of persons who are in the employment of the Corporation or that of an affiliate within the meaning of the Business Corporations Act of Alberta and also exclusive of persons who, having been formerly in the Corporations employment or that of an affiliate, were, while in that employment, shareholders of the Corporation and have continued to be shareholders of the Corporation after termination of that employment); provided that where two (2) or more persons hold one or more shares in the Corporation jointly they shall, for the purpose of this sub-clause 6(a), be treated as a single shareholder. |
(b) | No invitation shall be made to the public to subscribe for securities of the Corporation. |
(c) | The Corporation shall have a lien on shares registered in the name of any shareholder who is indebted to the Corporation for any amount. |
7. INCORPORATORS |
DATE: October 30, 1995 |
NAMES |
ADDRESS |
SIGNATURE | ||
DONALD R. LEITCH |
1500, 407 - 2nd Street S.W. Calgary, Alberta, T2P 2Y3 |
/s/ Donald R. Leitch
|
FOR DEPARTMENTAL USE ONLY
|
||
CORPORATE ACCESS NO. | INCORPORATION DATE: |
- 2 -
Exhibit T3A.4
CORPORATE ACCESS NUMBER 20672540 BUSINESS CORPORATIONS ACT CERTIFICATE OF INCORPORATION 672540 ALBERTA LTD. WAS INCORPORATED IN ALBERTA ON OCTOBER 31, 1995 Registrar of Corporations REG 3066 (95/09)
20672540
ARTICLES OF INCORPORATION
1. | NAME OF CORPORATION: 672540 ALBERTA LTD. |
2. | THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS AUTHORIZED TO ISSUE: |
Capital
The Corporation is authorized to issue one (1) class of shares, namely an unlimited number of Common Shares without nominal or par value (herein referred to as the Common Shares).
Common Shares
The holders of the Common Shares shall be entitled:
(a) | to vote at all meetings of shareholders, and on every poll taken at every such meeting, or adjourned meeting, every holder of Common Shares shall be entitled to one vote in respect of each such share held; |
(b) | the holders Common Shares shall be entitled to receive such dividends as and when the Directors in their discretion may declare thereon. |
3. | RESTRICTIONS IF ANY ON SHARE TRANSFERS: |
The right of shareholders to transfer or dispose of their shares in the Corporation shall be subject to the following restrictions:
(a) | Except where a transfer is made pursuant to the provisions of sub-clause 3(b) below, any transfer of shares in the Corporation shall require a resolution of the Board of Directors of the Corporation approving such transfer. |
(b) | Any share of a deceased shareholder may be transferred by his executors or administrators to any child or other issue, son-in-law, daughter-in-law, father, mother, brother, sister, nephew, niece, widow or widower of such deceased shareholder or to any other beneficiary named in the Will of such deceased shareholder and any shares of the Corporation standing in the name of the trustees of the Will of any deceased shareholder may be transferred upon any change of trustees to the trustees for the time being of such Will. |
4. | NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS: |
The Corporation shall have not less than one (1) director nor more than ten (10) directors. Subject to the provisions of the Business Corporations Act of Alberta, the directors may, between annual general meetings, appoint one or more additional directors of the Corporation to serve until the next annual general meeting of the Corporation provided that the total number of directors shall not at any time exceed the maximum hereinbefore prescribed.
5. | RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON: |
There shall be no restrictions as to the businesses which the Corporation may carry on.
6. | OTHER PROVISIONS IF ANY: |
(a) | The number of shareholders of the Corporation shall be limited to not more than fifty (50) persons (exclusive of persons who are in the employment of the Corporation or that of an affiliate within the meaning of the Business Corporations Act of Alberta and also exclusive of persons who, having been formerly in the Corporations employment or that of an affiliate, were, while in that employment, shareholders of the Corporation and have continued to be shareholders of the Corporation after termination of that employment); provided that where two (2) or more persons hold one or more shares in the Corporation jointly they shall, for the purpose of this sub-clause 6(a), be treated as a single shareholder. |
(b) | No invitation shall be made to the public to subscribe for securities of the Corporation. |
(c) | The Corporation shall have a lien on shares registered in the name of any shareholder who is indebted to the Corporation for any amount. |
7. INCORPORATORS | DATE: October 30, 1995 |
NAMES |
ADDRESS |
SIGNATURE | ||
DONALD R. LEITCH | 1500, 407 - 2nd Street S.W. Calgary, Alberta, T2P 2Y3 |
/s/ Donald R. Leitch
|
FOR DEPARTMENTAL USE ONLY
CORPORATE ACCESS NO. | INCORPORATION DATE:_______________________ |
- 2 -
Exhibit T3A.5
CORPORATE ACCESS NUMBER: 2016837409
Government
of Alberta ⬛
BUSINESS CORPORATIONS ACT
CERTIFICATE
OF
AMENDMENT AND REGISTRATION
OF RESTATED ARTICLES
1683740 ALBERTA LTD.
AMENDED ITS ARTICLES ON 2014/04/24.
7.00 a.m. MDT
Name/Structure Change Alberta CorporationRegistration Statement
Alberta Amendment Date: 2014/04/24
Service Request Number: 21337902 | ||
Corporate Access Number: 2016837409 | ||
Legal Entity Name: | 1683740 ALBERTA LTD. | |
French Equivalent Name: | ||
Legal Entity Status: | Active | |
Alberta Corporation Type: | Numbered Alberta Corporation | |
New Legal Entity Name: | 1683740 ALBERTA LTD. | |
New French Equivalent Name: | ||
Nuans Number: | ||
Nuans Date: | ||
French Nuans Number: | ||
French Nuans Date: | ||
Share Structure: | SEE ELECTRONIC ATTACHMENT | |
Share Transfers Restrictions: | SEE SCHEDULE ATTACHED. | |
Number of Directors: | ||
Min Number Of Directors: | 1 | |
Max Number Of Directors: | 9 | |
Business Restricted To: | NONE | |
Business Restricted From: | NONE | |
Other Provisions: | SEE SCHEDULE ATTACHED. | |
BCA Section/Subsection: | 173(1)(D) & (E) | |
Professional Endorsement Provided: | ||
Future Dating Required: |
Annual Return
File Year |
Date Filed |
|||
2013 |
2013/11/13 |
Attachment
Attachment Type |
Microfilm Bar Code |
Date Recorded | ||
Other Rules or Provisions |
ELECTRONIC | 2012/06/13 | ||
Share Structure |
ELECTRONIC | 2012/06/13 | ||
Restrictions on Share Transfers |
ELECTRONIC | 2012/06/13 | ||
Share Structure |
ELECTRONIC | 2014/04/24 |
Registration Authorized By: | LEANNE C. KRAWCHUK | |
SOLICITOR |
AUTHORIZED CAPITAL
of 1683740 Alberta Ltd. (the Corporation)
The Corporation is authorized to issue an unlimited number of shares designated as Common Shares, an unlimited number of shares designated as Class A Preferred Shares, an unlimited number of shares designated as Class B Preferred Shares, an unlimited number of shares designated as Class C Preferred Shares and an unlimited number of shares designated as Class D Preferred Shares. The Class A Preferred Shares, the Class B Preferred Shares, the Class C Preferred Shares and the Class D Preferred Shares are collectively referred to below as the Preferred Shares.
The respective rights, privileges, restrictions and conditions attached to the Common Shares and each class of Preferred Shares are set out below.
For greater certainty, each class of Preferred Shares described below is separate and distinct from the other classes of Preferred Shares described below, notwithstanding that the rights, privileges, restrictions and conditions attaching to the Preferred Shares of a particular class may be the same as the rights, privileges, restrictions and conditions attaching to the Preferred Shares of another class.
Where a word or term is defined below in a description of the rights, privileges, restrictions and conditions of a particular class of shares, the definition applies for the purpose of that description of that class of shares, but not for the purpose of the description of any other class of shares.
A. | COMMON SHARES |
1. Subject to any preference as to dividends provided to the holders of any other class of shares ranking senior to the Common Shares with respect to priority in the payment of dividends, the holders of the Common Shares shall be entitled to receive dividends and the Corporation shall pay dividends thereon, as and when declared by the directors of the Corporation out of monies properly applicable to the payment of dividends, in such amount and in such form as the directors may from time to time determine.
2. In the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of assets or property of the Corporation among its shareholders for the purpose of winding up its affairs, subject to the prior rights of the holders of any other class of shares ranking senior to the Common Shares with respect to priority in the distribution of assets or property of the Corporation, upon such liquidation, dissolution, winding-up or other distribution the holders of the Common Shares shall be entitled to receive equally share for share the remaining property or assets of the Corporation.
3. The holders of the Common Shares shall be entitled to receive notice of and to attend all meetings of the shareholders of the Corporation and shall have one vote for each Common Share held at all meetings of the shareholders of the Corporation, except for meetings at which only holders of another specified class or series of shares of the Corporation are entitled to vote separately as a class or series.
B. | CLASS A PREFERRED SHARES |
1. Except as stated herein, the Class A Preferred Shares rank senior to the Common Shares, such that the rights and privileges of the Class A Preferred Shares rank in priority to the rights and privileges of the Common Shares (except in the case of voting). The Class A preferred Shares rank equally with the Class B Preferred Shares, the Class C Preferred Shares and the Class D Preferred Shares, such that the rights and privileges of the Class A Preferred Shares rank ratably and on a parity with the rights and privileges of the other classes of Preferred Shares.
2. The Class A Preferred Shares may be issued from time to time, when and as determined by the directors of the Corporation, at an issue price of $1 per Class A Preferred Share.
3. Each Class A Preferred Share shall be redeemable at a redemption price of $1 per Class A Preferred Share (the Redemption Price). When redeeming a Class A Preferred Share, the Corporation shall pay, in addition to the Redemption Price of that Class A Preferred Share, an amount equal to any unpaid cumulative dividends on that
Class A Preferred Share.
4. The Corporation may redeem the Class A Preferred Shares on its demand. To so redeem some or all of the Class A Preferred Shares, the Corporation shall give at least thirty (30) days written notice of the redemption by mailing the notice to the registered holders of the Class A Preferred Shares to be redeemed, specifying the date and place of redemption and the number of Class A Preferred Shares to be redeemed. The notice may be given by prepaid post addressed to each holder at that holders address as it appears in the records of the Corporation. If the notice is given by the Corporation and if an amount (as indicated in section B.3) sufficient to redeem the specified Class A Preferred Shares is paid to the applicable holder or is deposited with a chartered bank or trust company in Canada, as specified in the notice, on or before the date fixed for redemption, those Class A Preferred Shares are redeemed as of the date fixed for redemption and thereafter a holder of Class A Preferred Shares specified in the notice, as such, has no rights against the Corporation except, upon surrendering the certificate for those Class A Preferred Shares, to receive payment of the Redemption Price of each specified Class A Preferred Share held by that holder, plus any unpaid cumulative dividends on each specified Class A Preferred Share held by that holder.
5. The Corporation is required to redeem Class A Preferred Shares on the demand of the holder thereof. To require the Corporation to redeem some or all of the holders Class A Preferred Shares, the holder shall deliver a written notice (a Retraction Notice) specifying the number of Class A Preferred Shares to be redeemed, together with the share certificate representing those Class A Preferred Shares, to the Corporation at its registered office, whereupon the Corporation shall redeem those Class A Preferred Shares within thirty (30) days after the date on which the Retraction Notice and the share certificate are so delivered, for an amount equal to the total of the Redemption Prices of the Class A Preferred Shares specified in the Retraction Notice, plus any unpaid cumulative dividends on those Class A Preferred Shares. The Corporation is not obligated to comply with this provision if, and so long as, the redemption would be contrary to any applicable law. If at any time an applicable law prohibits the Corporation from redeeming Class A Preferred Shares held by a holder who has delivered a Retraction Notice and the requisite share certificate to the Corporation, the Corporation shall thereafter, without further notice or demand by the holder, redeem those Class A Preferred Shares as soon as the redemption is permitted by the applicable law, or, if the redemption of some but not all of the Class A Preferred Shares is then permitted by the applicable law, the Corporation shall redeem such number of the Class A Preferred Shares as is then permitted and shall subsequently redeem, in one or more stages, the remaining Class A Preferred Shares that are the subject of the Retraction Notice as soon as such further redemption is permitted by the applicable law. If more than one holder has delivered a Retraction Notice and the requisite share certificate to the Corporation and the Corporation is permitted to redeem some but not all of the holders Class A Preferred Shares, the number of each holders Class A Preferred Shares to be redeemed shall be determined on a proportionate basis.
6. A holder of a Class A Preferred Share shall, in each financial period of the Corporation, until the Class A Preferred Share is redeemed, be entitled, out of any or all profits or surplus available for dividends, to receive, as and when declared by the directors of the Corporation, fixed cumulative preferential dividends at the rate of 9.025% per year on the Redemption Price of each Class A Preferred Share held by the holder, payable annually, in one or more instalments (as determined by the directors), on or before the last day of each financial period, provided that comparable dividends are declared and paid at the same rate, at the same times and in the same manner on each of the other classes of Preferred Shares. If, on any cumulative dividend payment date, the Corporation does not have sufficient profits or surplus available to pay in full the cumulative dividends payable on that date on all Class A Preferred Shares and all other Preferred Shares, such profits or surplus as are available shall be paid on a proportionate
basis as a dividend on the Class A Preferred Shares and as dividends on the other Preferred Shares. If, on any cumulative dividend payment date, the cumulative dividend payable on that date is not paid in full on all Class A Preferred Shares, the cumulative dividend, or the unpaid part thereof, shall be paid at a subsequent date, as and when declared by the directors. No dividend shall at any time be declared or paid on any other shares of the Corporation unless all accrued cumulative dividends on the Class A Preferred Shares and the other Preferred Shares shall have been declared and paid before that time or are declared or paid (as the case may be) concurrently at that time. For greater certainty:
6.1 no dividend shall be declared or paid on the Class A Preferred Shares unless concurrently therewith a comparable dividend is declared or paid (as the case may be) at the same rate and in the same manner on each of the other classes of Preferred Shares;
6.2 dividends may be declared and paid on the Class A Preferred Shares to the complete exclusion of the other classes of shares of the Corporation (except the other Preferred Shares); and
6.3 no dividend shall at any time be declared or paid on any other shares of the Corporation if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities, the stated capital of the Common Shares, the total of the Redemption Prices of the Class A Preferred Shares then issued and outstanding and the total of the redemption prices of the other Preferred shares then issued and outstanding, plus any unpaid cumulative dividends on the Preferred Shares of any class.
7. In the event of the liquidation, dissolution or winding- up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, each holder of a Class A Preferred Share shall be entitled to receive, before any distribution of any property of the Corporation among the holders of any other shares of the Corporation (except the Preferred Shares of any class), an amount equal to, but not greater than, the total of the Redemption Prices of the Class A Preferred Shares held by the holder, plus any unpaid cumulative dividends on those Class A Preferred Shares. If, on the liquidation, dissolution or winding-up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, the Corporation does not have sufficient property to distribute an amount equal to the total of the Redemption Prices of the Class A Preferred Shares and the total of the redemption prices of the other Preferred Shares among all the holders of all the Class A Preferred Shares and all the holders of all the other Preferred Shares, the property available for distribution shall be distributed on a proportionate basis among the holders of the Class A Preferred Shares and the holders of the other Preferred Shares.
8. Except where specifically provided by the Business Corporations Act (Alberta), the holders of the Class A Preferred Shares shall not be entitled as such to receive notice of or to attend any meeting of the shareholders of the Corporation and shall not be entitled to vote at any such meeting.
C. | CLASS B PREFERRED SHARES |
1. Except as stated herein, the Class B Preferred Shares rank senior to the Common Shares, such that the rights and privileges of the Class B Preferred Shares rank in priority to the rights and privileges of the Common Shares (except in the case of voting). The Class B Preferred Shares rank equally with the Class A Preferred Shares, the Class C Preferred Shares and the Class D Preferred Shares, such that the rights and privileges of the Class B Preferred Shares rank ratably and on a parity with the rights and privileges of the other classes of Preferred Shares.
2. The Class B Preferred Shares may be issued from time to time, when and as determined by the directors of the Corporation, at an issue price of $1 per Class B Preferred Share.
3. Each Class B Preferred Share shall be redeemable at a redemption price of $1 per Class B Preferred Share (the Redemption Price). When redeeming a Class B Preferred Share, the Corporation
shall pay, in addition to the Redemption Price of that Class B Preferred Share, an amount equal to any unpaid cumulative dividends on that Class B Preferred Share.
4. The Corporation may redeem the Class B Preferred Shares on its demand. To so redeem some or all of the Class B Preferred Shares, the Corporation shall give at least thirty (30) days written notice of the redemption by mailing the notice to the registered holders of the Class B Preferred Shares to be redeemed, specifying the date and place of redemption and the number of Class B Preferred Shares to be redeemed. The notice may be given by prepaid post addressed to each holder at that holders address as it appears in the records of the Corporation. If the notice is given by the Corporation and if an amount (as indicated in section C.3) sufficient to redeem the specified Class B Preferred Shares is paid to the applicable holder or is deposited with a chartered bank or trust company in Canada, as specified in the notice, on or before the date fixed for redemption, those Class B Preferred Shares are redeemed as of the date fixed for redemption and thereafter a holder of Class B Preferred Shares specified in the notice, as such, has no rights against the Corporation except, upon surrendering the certificate for those Class B Preferred Shares, to receive payment of the Redemption Price of each specified Class B Preferred Share held by that holder, plus any unpaid cumulative dividends on each specified Class B Preferred Share held by that holder.
5. The Corporation is required to redeem Class B Preferred Shares on the demand of the holder thereof. To require the Corporation to redeem some or all of the holders Class B Preferred Shares, the holder shall deliver a written notice (a Retraction Notice) specifying the number of Class B Preferred Shares to be redeemed, together with the share certificate representing those Class B Preferred Shares, to the Corporation at its registered office, whereupon the Corporation shall redeem those Class B Preferred Shares within thirty (30) days after the date on which the Retraction Notice and the share certificate are so delivered, for an amount equal to the total of the Redemption Prices of the Class B Preferred Shares specified in the Retraction Notice, plus any unpaid cumulative dividends on those Class B Preferred Shares. The Corporation is not obligated to comply with this provision if, and so long as, the redemption would be contrary to any applicable law. If at any time an applicable law prohibits the Corporation from redeeming Class B Preferred Shares held by a holder who has delivered a Retraction Notice and the requisite share certificate to the Corporation, the Corporation shall thereafter, without further notice or demand by the holder, redeem those Class B Preferred Shares as soon as the redemption is permitted by the applicable law, or, if the redemption of some but not all of the Class B Preferred Shares is then permitted by the applicable law, the Corporation shall redeem such number of the Class B Preferred Shares as is then permitted and shall subsequently redeem, in one or more stages, the remaining Class B Preferred Shares that are the subject of the Retraction Notice as soon as such further redemption is permitted by the applicable law. If more than one holder has delivered a Retraction Notice and the requisite share certificate to the Corporation and the Corporation is permitted to redeem some but not all of the holders Class B Preferred Shares, the number of each holders Class B Preferred Shares to be redeemed shall be determined on a proportionate basis.
6. A holder of a Class B Preferred Share shall, in each financial period of the Corporation, until the Class B Preferred Share is redeemed, be entitled, out of any or all profits or surplus available for dividends, to receive, as and when declared by the directors of the Corporation, fixed cumulative preferential dividends at the rate of 9.025% per year on the Redemption Price of each Class B Preferred Share held by the holder, payable annually, in one or more instalments (as determined by the directors), on or before the last day of each financial period, provided that comparable dividends are declared and paid at the same rate, at the same times and in the same manner on each of the other classes of Preferred Shares. If, on any cumulative dividend payment date, the Corporation does not have sufficient profits or surplus available to pay in full the cumulative dividends payable on
that date on all Class B Preferred Shares and all other Preferred Shares, such profits or surplus as are available shall be paid on a proportionate basis as a dividend on the Class B Preferred Shares and as dividends on the other Preferred Shares. If, on any cumulative dividend payment date, the cumulative dividend payable on that date is not paid in full on all Class B Preferred Shares, the cumulative dividend, or the unpaid part thereof, shall be paid at a subsequent date, as and when declared by the directors. No dividend shall at any time be declared or paid on any other shares of the Corporation unless all accrued cumulative dividends on the Class B Preferred Shares and the other Preferred Shares shall have been declared and paid before that time or are declared or paid (as the case may be) concurrently at that time. For greater certainty:
6.1 no dividend shall be declared or paid on the Class B Preferred Shares unless concurrently therewith a comparable dividend is declared or paid (as the case may be) at the same rate and in the same manner on each of the other classes of Preferred Shares;
6.2 dividends may be declared and paid on the Class B Preferred Shares to the complete exclusion of the other classes of shares of the Corporation (except the other Preferred Shares); and
6.3 no dividend shall at any time be declared or paid on any other shares of the Corporation if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities, the stated capital of the Common Shares, the total of the Redemption Prices of the Class B Preferred Shares then issued and outstanding and the total of the redemption prices of the other Preferred Shares then issued and outstanding, plus any unpaid cumulative dividends on the Preferred Shares of any class.
7. In the event of the liquidation, dissolution or winding- up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, each holder of a Class B Preferred Share shall be entitled to receive, before any distribution of any property of the Corporation among the holders of any other shares of the Corporation (except the Preferred Shares of any class), an amount equal to, but not greater than, the total of the Redemption Prices of the Class B Preferred Shares held by the holder, plus any unpaid cumulative dividends on those Class B Preferred Shares. If, on the liquidation, dissolution or winding-up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, the Corporation does not have sufficient property to distribute an amount equal to the total of the Redemption Prices of the Class B Preferred Shares and the total of the redemption prices of the other Preferred Shares among all the holders of all the Class B Preferred Shares and all the holders of all the other Preferred Shares, the property available for distribution shall be distributed on a proportionate basis among the holders of the Class B Preferred Shares and the holders of the other Preferred Shares.
8. Except where specifically provided by the Business corporations Act (Alberta), the holders of the Class B Preferred Shares shall not be entitled as such to receive notice of or to attend any meeting of the shareholders of the Corporation and shall not be entitled to vote at any such meeting.
9. It is the Corporations intention to issue the Class B Preferred Shares pursuant to an Agreement of Purchase and Sale (the Agreement) between another party (as vendor) and the Corporation (as purchaser). If the price adjustment clause (the PAC) in the Agreement becomes operative and requires that the Redemption Price of each Class B Preferred Share be adjusted, that Redemption Price shall be adjusted in accordance with the PAC. If the PAC becomes operative and requires the issuance or cancellation of Class B Preferred Shares, the Redemption Price of each Class B Preferred Share shall continue to be $1, but the number of Class B Preferred Shares issued pursuant to the Agreement shall be adjusted in accordance with the PAC.
10. On issuing the Class B Preferred Shares, as required by the Agreement, the Corporation may, as permitted by section 28(3) of the Business Corporations Act (Alberta), add, to the stated capital
account maintained for the Class B Preferred Shares, the whole or any part of the amount of the consideration that the Corporation received pursuant to the Agreement.
D. | CLASS C PREFERRED SHARES |
1. Except as stated herein, the Class C Preferred Shares rank senior to the Common Shares, such that the rights and privileges of the Class C Preferred Shares rank in priority to the rights and privileges of the Common Shares (except in the case of voting). The Class C Preferred Shares rank equally with the Class A Preferred Shares, the Class B Preferred Shares and the Class D Preferred Shares, such that the rights and privileges of the Class C Preferred Shares rank ratably and on a parity with the rights and privileges of the other classes of Preferred Shares.
2. The Class C Preferred Shares may be issued from time to time, when and as determined by the directors of the Corporation, at an issue price of $1 per Class C Preferred Share.
3. Each Class C Preferred Share shall be redeemable at a redemption price of $1 per Class C Preferred Share (the Redemption Price). When redeeming a Class C Preferred Share, the Corporation shall pay, in addition to the Redemption Price of that Class C Preferred Share, an amount equal to any unpaid cumulative dividends on that Class C Preferred Share.
4. The Corporation may redeem the Class C Preferred Shares on its demand. To so redeem some or all of the Class C Preferred Shares, the Corporation shall give at least thirty (30) days written notice of the redemption by mailing the notice to the registered holders of the Class C Preferred Shares to be redeemed, specifying the date and place of redemption and the number of Class C Preferred Shares to be redeemed. The notice may be given by prepaid post addressed to each holder at that holders address as it appears in the records of the Corporation. If the notice is given by the Corporation and if an amount (as indicated in section D.3) sufficient to redeem the specified Class c Preferred Shares is paid to the applicable holder or is deposited with a chartered bank or trust company in Canada, as specified in the notice, on or before the date fixed for redemption, those Class C Preferred Shares are redeemed as of the date fixed for redemption and thereafter a holder of Class C Preferred Shares specified in the notice, as such, has no rights against the Corporation except, upon surrendering the certificate for those Class C Preferred Shares, to receive payment of the Redemption Price of each specified Class C Preferred Share held by that holder, plus any unpaid cumulative dividends on each specified Class C Preferred Share held by that holder.
5. The Corporation is required to redeem Class C Preferred shares on the demand of the holder thereof. To require the Corporation to redeem some or all of the holders Class C Preferred Shares, the holder shall deliver a written notice (a Retraction Notice) specifying the number of Class C Preferred Shares to be redeemed, together with the share certificate representing those Class C Preferred Shares, to the Corporation at its registered office, whereupon the Corporation shall redeem those Class C Preferred Shares within thirty (30) days after the date on which the Retraction Notice and the share certificate are so delivered, for an amount equal to the total of the Redemption Prices of the Class C Preferred Shares specified in the Retraction Notice, plus any unpaid cumulative dividends on those Class C Preferred Shares. The Corporation is not obligated to comply with this provision if, and so long as, the redemption would be contrary to any applicable law. If at any time an applicable law prohibits the Corporation from redeeming Class C Preferred Shares held by a holder who has delivered a Retraction Notice and the requisite share certificate to the Corporation, the Corporation shall thereafter, without further notice or demand by the holder, redeem those Class C Preferred Shares as soon as the redemption is permitted by the applicable law, or, if the redemption of some but not all of the Class C Preferred Shares is then permitted by the applicable law, the Corporation shall redeem such number of the Class C Preferred Shares as is then permitted and shall subsequently redeem, in one or more stages, the remaining Class C Preferred Shares that are the subject of the Retraction Notice as soon as
such further redemption is permitted by the applicable law. If more than one holder has delivered a Retraction Notice and the requisite share certificate to the Corporation and the Corporation is permitted to redeem some but not all of the holders Class C Preferred Shares, the number of each holders Class C Preferred Shares to be redeemed shall be determined on a proportionate basis.
6. A holder of a Class C Preferred Share shall, in each financial period of the Corporation, until the Class C Preferred Share is redeemed, be entitled, out of any or all profits or surplus available for dividends, to receive, as and when declared by the directors of the Corporation, fixed cumulative preferential dividends at the rate of 9.025% per year on the Redemption Price of each Class C Preferred Share held by the holder, payable annually, in one or more instalments (as determined by the directors), on or before the last day of each financial period, provided that comparable dividends are declared and paid at the same rate, at the same times and in the same manner on each of the other classes of Preferred Shares. If, on any cumulative dividend payment date, the Corporation does not have sufficient profits or surplus available to pay in full the cumulative dividends payable on that date on all Class C Preferred Shares and all other Preferred Shares, such profits or surplus as are available shall be paid on a proportionate basis as a dividend on the Class C Preferred Shares and as dividends on the other Preferred Shares. If, on any cumulative dividend payment date, the cumulative dividend payable on that date is not paid in full on all Class C Preferred Shares, the cumulative dividend, or the unpaid part thereof, shall be paid at a subsequent date, as and when declared by the directors. No dividend shall at any time be declared or paid on any other shares of the Corporation unless all accrued cumulative dividends on the Class C Preferred Shares and the other Preferred Shares shall have been declared and paid before that time or are declared or paid (as the case may be) concurrently at that time. For greater certainty:
6.1 no dividend shall be declared or paid on the Class C Preferred Shares unless concurrently therewith a comparable dividend is declared or paid (as the case may be) at the same rate and in the same manner on each of the other classes of Preferred Shares;
6.2 dividends may be declared and paid on the Class C Preferred Shares to the complete exclusion of the other classes of shares of the Corporation (except the other Preferred Shares); and
6.3 no dividend shall at any time be declared or paid on any other shares of the Corporation if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities, the stated capital of the Common Shares, the total of the Redemption Prices of the Class C Preferred Shares then issued and outstanding and the total of the redemption prices of the other Preferred Shares then issued and outstanding, plus any unpaid cumulative dividends on the Preferred Shares of any class.
7. In the event of the liquidation, dissolution or winding- up of the Corporation or other distribution of property of the corporation among its shareholders for the purpose of winding up its affairs, each holder of a Class C Preferred Share shall be entitled to receive, before any distribution of any property of the Corporation among the holders of any other shares of the Corporation (except the Preferred Shares of any class), an amount equal to, but not greater than, the total of the Redemption Prices of the Class C Preferred Shares held by the holder, plus any unpaid cumulative dividends on those Class C Preferred Shares. If, on the liquidation, dissolution or winding-up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, the Corporation does not have sufficient property to distribute an amount equal to the total of the Redemption Prices of the Class C Preferred Shares and the total of the redemption prices of the other Preferred Shares among all the holders of all the Class C Preferred Shares and all the holders of all the other Preferred Shares, the property available for distribution shall be distributed on a proportionate basis among the holders of the Class C Preferred Shares and the holders of the other Preferred Shares.
8. Except where specifically provided by the Business Corporations Act (Alberta), the holders of the Class C Preferred Shares shall not be entitled as such to receive notice of or to attend any meeting of the shareholders of the Corporation and shall not be entitled to vote at any such meeting.
9. It is the Corporations intention to issue the Class C Preferred Shares pursuant to a Share Rollover Agreement (the Agreement) between another party (as vendor) and the Corporation (as purchaser). If the price and election amount adjustment clause (the Primary Clause) in the Agreement becomes operative, the Redemption Price of each Class C Preferred Share shall be adjusted in accordance with the Primary Clause. If the alternate price adjustment clause (the Alternate Clause) in the Agreement becomes operative, the Redemption Price of each Class C Preferred Share shall continue to be $1, but the number of Class C Preferred Shares issued pursuant to the Agreement shall be adjusted in accordance with the Alternate Clause.
10. On issuing the Class C Preferred Shares, as required by the Agreement, the Corporation may, as permitted by section 28(3) of the Business Corporations Act (Alberta), add, to the stated capital account maintained for the Class C Preferred Shares, the whole or any part of the amount of the consideration that the Corporation received pursuant to the Agreement.
E. | CLASS D PREFERRED SHARES |
1. Except as stated herein, the Class D Preferred Shares rank senior to the Common Shares, such that the rights and privileges of the Class D Preferred Shares rank in priority to the rights and privileges of the Common Shares (except in the case of voting). The Class D Preferred Shares rank equally with the Class A Preferred Shares, the Class B Preferred Shares and the Class C Preferred Shares, such that the rights and privileges of the Class D Preferred Shares rank ratably and on a parity with the rights and privileges of the other classes of Preferred Shares.
2. The Class D Preferred Shares may be issued from time to time, when and as determined by the directors of the Corporation, at an issue price of $1 per Class D Preferred Share.
3. Each Class D Preferred Share shall be redeemable at a redemption price of $1 per Class D Preferred Share (the Redemption Price). When redeeming a Class D Preferred Share, the Corporation shall pay, in addition to the Redemption Price of that Class D Preferred Share, an amount equal to any unpaid cumulative dividends on that Class D Preferred Share.
4. The Corporation may redeem the Class D Preferred Shares on its demand. To so redeem some or all of the Class D Preferred Shares, the Corporation shall give at least thirty (30) days written notice of the redemption by mailing the notice to the registered holders of the Class D Preferred Shares to be redeemed, specifying the date and place of redemption and the number of Class D Preferred Shares to be redeemed. The notice may be given by prepaid post addressed to each holder at that holders address as it appears in the records of the Corporation. If the notice is given by the Corporation and if an amount (as indicated in section E.3) sufficient to redeem the specified Class D Preferred Shares is paid to the applicable holder or is deposited with a chartered bank or trust company in Canada, as specified in the notice, on or before the date fixed for redemption, those Class D Preferred Shares are redeemed as of the date fixed for redemption and thereafter a holder of Class D Preferred Shares specified in the notice, as such, has no rights against the Corporation except, upon surrendering the certificate for those Class D Preferred Shares, to receive payment of the Redemption Price of each specified Class D Preferred Share held by that holder, plus any unpaid cumulative dividends on each specified Class D Preferred Share held by that holder.
5. The Corporation is required to redeem Class D Preferred Shares on the demand of the holder thereof. To require the Corporation to redeem some or all of the holders Class D Preferred Shares, the holder shall deliver a written notice (a Retraction Notice) specifying the number of Class D Preferred Shares to be redeemed,
together with the share certificate representing those Class D Preferred Shares, to the Corporation at its registered office, whereupon the Corporation shall redeem those Class D Preferred Shares within thirty (30) days after the date on which the Retraction Notice and the share certificate are so delivered, for an amount equal to the total of the Redemption Prices of the Class D Preferred Shares specified in the Retraction Notice, plus any unpaid cumulative dividends on those Class D Preferred Shares. The Corporation is not obligated to comply with this provision if, and so long as, the redemption would be contrary to any applicable law. If at any time an applicable law prohibits the Corporation from redeeming Class D Preferred Shares held by a holder who has delivered a Retraction Notice and the requisite share certificate to the Corporation, the Corporation shall thereafter, without further notice or demand by the holder, redeem those Class D Preferred Shares as soon as the redemption is permitted by the applicable law, or, if the redemption of some but not all of the Class D Preferred Shares is then permitted by the applicable law, the Corporation shall redeem such number of the Class D Preferred Shares as is then permitted and shall subsequently redeem, in one or more stages, the remaining Class D Preferred Shares that are the subject of the Retraction Notice as soon as such further redemption is permitted by the applicable law. If more than one holder has delivered a Retraction Notice and the requisite share certificate to the Corporation and the Corporation is permitted to redeem some but not all of the holders Class D Preferred Shares, the number of each holders Class D Preferred Shares to be redeemed shall be determined on a proportionate basis.
6. A holder of a Class D Preferred Share shall, in each financial period of the Corporation, until the Class D Preferred Share is redeemed, be entitled, out of any or all profits or surplus available for dividends, to receive, as and when declared by the directors of the Corporation, fixed cumulative preferential dividends at the rate of 9.025% per year on the Redemption Price of each Class D Preferred Share held by the holder, payable annually, in one or more instalments (as determined by the directors), on or before the last day of each financial period, provided that comparable dividends are declared and paid at the same rate, at the same times and in the same manner on each of the other classes of Preferred Shares. If, on any cumulative dividend payment date, the Corporation does not have sufficient profits or surplus available to pay in full the cumulative dividends payable on that date on all Class D Preferred Shares and all other Preferred Shares, such profits or surplus as are available shall be paid on a proportionate basis as a dividend on the Class D Preferred Shares and as dividends on the other Preferred Shares. If, on any cumulative dividend payment date, the cumulative dividend payable on that date is not paid in full on all Class D Preferred Shares, the cumulative dividend, or the unpaid part thereof, shall be paid at a subsequent date, as and when declared by the directors. No dividend shall at any time be declared or paid on any other shares of the Corporation unless all accrued cumulative dividends on the Class D Preferred Shares and the other Preferred Shares shall have been declared and paid before that time or are declared or paid (as the case may be) concurrently at that time. For greater certainty:
6.1 no dividend shall be declared or paid on the Class D Preferred Shares unless concurrently therewith a comparable dividend is declared or paid (as the case may be) at the same rate and in the same manner on each of the other classes of Preferred Shares;
6.2 dividends may be declared and paid on the Class D Preferred Shares to the complete exclusion of the other classes of shares of the Corporation (except the other Preferred Shares); and
6.3 no dividend shall at any time be declared or paid on any other shares of the Corporation if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities, the stated capital of the Common Shares, the total of the Redemption Prices of the Class D Preferred Shares then issued and outstanding and the total of the redemption prices of the other Preferred Shares then issued and outstanding, plus any unpaid cumulative dividends on the Preferred Shares of any class.
7. In the event of the liquidation, dissolution or winding- up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, each holder of a Class D Preferred Share shall be entitled to receive, before any distribution of any property of the Corporation among the holders of any other shares of the Corporation (except the Preferred Shares of any class), an amount equal to, but not greater than, the total of the Redemption Prices of the Class D Preferred Shares held by the holder, plus any unpaid cumulative dividends on those Class D Preferred Shares. If, on the liquidation, dissolution or winding-up of the Corporation or other distribution of property of the Corporation among its shareholders for the purpose of winding up its affairs, the Corporation does not have sufficient property to distribute an amount equal to the total of the Redemption Prices of the Class D Preferred Shares and the total of the redemption prices of the other Preferred Shares among all the holders of all the Class D Preferred Shares and all the holders of all the other Preferred Shares, the property available for distribution shall be distributed on a proportionate basis among the holders of the Class D Preferred Shares and the holders of the other Preferred Shares.
8. Except where specifically provided by the Business Corporations Act (Alberta), the holders of the Class D Preferred Shares shall not be entitled as such to receive notice of or to attend any meeting of the shareholders of the Corporation and shall not be entitled to vote at any such meeting.
9. It is the Corporations intention to issue the Class D Preferred Shares pursuant to a Share Rollover Agreement (the Agreement) between another party (as vendor) and the Corporation (as purchaser). If the price and election amount adjustment clause (the Primary Clause) in the Agreement becomes operative, the Redemption Price of each Class D Preferred Share shall be adjusted in accordance with the Primary Clause. If the alternate price adjustment clause (the Alternate Clause) in the Agreement becomes operative, the Redemption Price of each Class D Preferred Share shall continue to be $1, but the number of Class D Preferred Shares issued pursuant to the Agreement shall be adjusted in accordance with the Alternate Clause.
10. On issuing the Class D Preferred Shares, as required by the Agreement, the Corporation may, as permitted by section 28(3) of the Business Corporations Act (Alberta), add, to the stated capital account maintained for the Class D Preferred Shares, the whole or any part of the amount of the consideration that the Corporation received pursuant to the Agreement.
6644368_3 | NATDOCS
Exhibit T3A.6
20020285/IS/Iba
STATUTEN
Naam en zetel
Artikel 1
1. | De vennootschap draagt de naam: |
Canada Northwest Oils (Europe) B.V.
2. | Zij is gevestigd te Amsterdam. |
Doel
Artikel 2
De vennootschap heeft ten doel:
In het bijzonder het exploiteren, exploreren en verwerken (waaronder raffinage) van olie, gas en andere mineralen, de handel in genoemde goederen, daarvan afgeleide of daaraan verwante producten,
- | in het algemeen de fabrikage van en handel in alle soorten goederen, |
- | alle handelingen, welke met het vorenstaande verband houden als het aanvragen van concessies, het verkrijgen en financieren van kapitaalsgoederen, het deelnemen in en besturen van andere veinnootschappen, alles in de ruimste zin, |
- | de vennootschap is bevoegd tot het lenen en uitlenen van gelden van en aan derden en het zich borg stellen of op andere wijze sterk maken voor derden, |
Kapitaal en aandelen
Artikel 3
Het maatschappelijk, kapitaal bedraagt éénhonderd twilntig miljoen zeshonderd zestienduizend euro (EUR 120.616.000.00), verdeeld in vierhonderdduizend (400.000) aandelen met een nominale waarde van driehonderd één euro en vierenvijfitg eurocent (EUR 301,54) elk.
Artikel 4
1. | De aandelen luiden op naam. Zij zijn genummerd op de wijze als de directie bepaalt. |
2. | Er worden geen aandeelbewijzen afgegeven. |
3. | De directie houdt een register, waarin de namen en adressen van alle aandeelhouders zijn opgenomen, met vermelding van het op elk aandeel gestorte bedrag. |
Artikel 5
1. | De vennootschap is bevoegd voor eigen rekening onder bezwarende titel volgestorte aandelen in haar maatschappelijk kapitaal te verkrijgen tot ten hoogste de helft in haar geplaatste kapitaal. |
2. | Op eigen aandelen in de vennootschap kunnen de aan die aandelen verbonden rechten niet worden uitgeoefend. |
Artikel 6
1. | De levering van aandelen geschiedt door middel van een akte van levering en betekening van die akte aan de vennootschap of door schriftelijke erkenning van de levering door de vennootschap op grond van overlegging van die akte aan de vennootschap. Indien het betreft niet volgestorte aandelen, kan de erkenning slechts geschieden, wanneer er is een akte van overdracht met vaste dagtekening. |
2. | In geval van levering van niet volgestorte aandelen wordt in het register, bedoeld bij artikel 4 lid 3, mede de dag der levering aangetekend. |
3. | Het bepaalde in de voorgaande leden is van overeenkomstige toepassing op de toedeling van aandelen bij scheiding. |
Artikel 7
1. | De aandeelhouder, die één of meer aandelen wil vervreemden, moet deze eerst aanbieden aan zijn mede-aandeelhouders. |
2. | De prijs, waarvoor de aandelen door de andere aandeelhouders kunnen worden overgenomen, wordt vastgesteld door de aanbieder en zijn mede-aandeelhouders. Indien zij niet tot overeenstemming komen, wordt de prijs vastgesteld door een onafhankelijke deskundige, op verzoek van de meest gerede partij te benoemen door de Kantonrechter, binnen wiens kanton de vennootschap statutair is gevestigd, tenzij partijen onderling overeenstemming over de deskundige bereiken. |
3. | De aanbieder blijft bevoegd zijn aanbod in te trekken, mits dit geschiedt binnen een maand, nadat hem bekend is aan welke gegadigden hij al die aandelen, waarop het aanbod betrekking heeft, kan verkopen en tegen welke prijs. |
4. | Indien vaststaat, dat de mede-aandeelhouders het aanbod niet aanvaarden of dat niet al de aandelen, waarop het aanbod betrekking heeft, tegen contante betaling wordt gekocht, zal de aanbieder de aandelen binnen drie maanden na die vaststelling vrijelijk mogen overdragen. |
Bestuur
Artikel 8
1. | De vennootschap heeft een directie, bestaande uit één of meer directeuren A en één of meer directeuren B. |
Een rechtspersoon kan tot directeur worden benoemd.
2. | De algemene vergadering benoemt de directeuren en is bevoegd hen te allen tijde te ontslaan. |
Artikel 9
De directie is belast met het besturen van de zaken van de vennootschap en met het beheer van haar vermogen.
Artikel 10
De directie is bevoegd de vennootschap te vertegenwoordigen. De vennootschap kan ook worden vertegenwoordigd door een directeur A en een directeur B gezamenlijk handelend.
Artikel 11
Ingeval van ontstentenis of belet van één of meer directeuren zijn de overige directeuren of is de overige directeur tijdelijk met het gehele bestuur en beheer van de vennootschap belast, terwijl ingeval van ontstentenis of belet van alle directeuren of van de enige directeur tijdelijk met het beheer is belast de persoon, die daartoe jaarlijks door de algemene vergadering wordt aangewezen.
Boekjaar en jaarrekening
Artikel 12
1. | Het boekjaar valt samen met het kalenderjaar. |
2. | Jaarlijks wordt door de directie een jaarrekening opgemaakt, bestaande uit een balans, een winst- en verliesrekening en een toelichting. |
3. | De algemene vergadering stelt de jaarrekening vast. |
4. | De algemene vergadering kan volledige of beperkte decharge verlenen aan de directeuren voor het gevoerde bestuur. |
Winstbestemming
Artikel 13
De winst is ter beschikking van de algemene vergadering.
Algemene vergaderingen van aandeelhouders
Artikel 14
1. | De algemene vergaderingen worden gehouden te Amsterdam. |
2. | Jaarlijks, uiterlijk in de maand maart, wordt een algemene vergadering gehouden, waarin ondermeer de jaarrekening en de winstbestemming worden vastgesteld. |
Artikel 15
De oproeping tot de algemene vergadering geschiedt door de directie niet later dan op de Vijftiende dag vóór die van de vergadering.
Artikel 16
Zolang in een algemene vergadering het gehele geplaatste kapitaal is vertegenwoordigd, kunnen geldige besluiten worden genomen over alle aan de orde komende onderwerpen, mits met algemene stemmen, ook al zijn de door de wet of statuten gegeven voorschriften voor het oproepen en houden van vergaderingen niet in acht genomen.
Artikel 17
De algemene vergaderingen voorzien zelf in haar voorzitterschap.
Artikel 18
1. | De algemene vergadering besluit met volstrekte meerderheid der geldig uitgebrachte stemmen. |
2. | Elk aandeel geeft recht tot het uitbrengen van één stem. |
3. | Voor de aandelen van hen, wie uit anderen hoofde dan als aandeelhouder van de vennootschap door het te nemen besluit enig recht jegens de vennootschap zou worden toegekend of die daardoor van enige verplichting jegens haar zouden worden ontslagen, kunnen geldige stemmen worden uitgebracht. |
Artikel l9
Tenzij met medewerking van de vennootschap certificaten van aandelen zijn uitgegeven, kunnen besluiten van aandeelhouders in plaats van in algemene vergaderingen ook schriftelijk (waaronder begrepen telegram- en telexbericht) worden genomen, mits met algemene stemmen van alle tot stemmen bevoegde aandeelhouders.
* * *
1/1
|
STATEMENT on fair office translation
The undersigned:
Joannes Franciscus Verlinden, civil law notary at Eindhoven, the Netherlands,
declares:
that the attached document is a fair office translation of, to the best of my knowledge, the consecutive wording in the Dutch language of the articles of association of Canada Northwest Oils (Europe) B.V., a private limited liability company under Dutch law, having its official seat in Amsterdam, the Netherlands.
In preparing this document, an attempt has been made to translate as literally as possible without jeopardizing the overall continuity of the text. Inevitably, however, differences may occur in translation and if they do, the Dutch text will govern by law.
In this translation, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to concepts described by the English terms as such terms may be understood under the laws of other jurisdictions.
Eindhoven, June 5th 2009.
|
| |||
/s/ J.F. Verlinden | ||||
J.F. Verlinden |
In this translation an attempt has been made to be as literal as possible without jeopardising the overall continuity. Inevitably, differences may occur in translation, and if so the Dutch text will by law govern.
ARTICLES OF ASSOCIATION
Name and seat
Article 1
1. | The name of the company is: |
Canada Northwest Oils (Europe) B.V.
2. | The official seat of the company is in Amsterdam. |
Objects
Article 2
The objects of the company are:
In particular the exploitation, exploration and processing (under which refining) of oil, gas and other minerals, the trade in the mentioned goods, derivatives of these goods or related products,
- | in particular the production of and the trade in all kinds of goods, |
- | all transactions, which are connected therewith, such as the application of franchises, the acquisition and financing of capital goods, the participation in and management of other companies, all in the broadest sense, |
- | the company is authorised to borrow and lend monies to and from third parties and to provide security or otherwise [sterk maken] to third parties, |
Capital and shares
Article 3
The authorized capital of the company equals one hundred forty six million three hundred seventy two thousand euro (EUR 146,372,000,00), and is divided into four hundred thousand (400,000) shares with a nominal value of three hundred sixty five euro and ninety three eurocent (EUR 365.93) each.
Article 4
1. | All shares are to be registered shares. They are numbered in the manner as determined by the management board. |
2. | No share certificates shall be issued. |
3. | The management board shall keep a register in which the names and addresses of all shareholders are recorded, showing the amount paid on each share. |
Article 5
1. | The company may acquire for its own account for valuable consideration fully paid in shares in its own authorised capital for at most half of its issued capital. |
2. | On own shares in the company, no rights which are connected to these shares can be exercised. |
Article 6
1. | The transfer of shares requires a deed of transfer and service of this deed to the company or by written acknowledgement of the transfer by the company on the grounds of submission of this deed to the company. |
If the shares are not paid in, acknowledgement can only take place with a deed of transfer with fixed date.
2. | If shares that are not paid in are being transferred, in the register as mentioned in article 4 paragraph 3, the date of transfer will also be recorded. |
3. | The provisions of the preceding paragraphs are applicable to the division of shares at divorce. |
Article 7
1. | Any shareholder, wishing to transfer one or more shares, shall first offer those shares to his co-shareholders. |
2. | The price, at which the shares can be purchased by the other shareholders, shall be agreed between the offeror and his co-shareholders. Failing agreement between the parties, the price shall be set by an independent expert on request of the most willing party to be appointed by the cantonal judge, in whose district the company has its official seat, unless the expert is appointed by the parties by mutual consent. |
3. | The offeror remains entitled to withdraw his offer, provided he does so within one month after he is informed to which interested parties he can sell all the shares included in the offer and at what price. |
4. | If it is established that the co-shareholders do not accept the offer or that not all shares included in the offer shall be purchased against payment in cash, the offeror shall be free to transfer the shares within three months thereafter to whomsoever he wishes. |
Management board
Article 8
1. | The company has a managing board, consisting of one or more managing directors A and one or more managing directors B. |
A legal entity may be appointed as a managing director.
2. | The general meeting appoints the managing directors and is entitled to dismiss them at any time. |
Article 9
The management board shall be entrusted with the management of the businesses of the company and with its asset management.
Article 10
The managing board shall have power to represent the company. The company can also be represented by a managing director A and a managing director B acting jointly.
Article 11
If one or more managing directors are absent or prevented from performing their duties, the remaining managing director or managing directors shall be temporarily entrusted with the entire management of the company and its asset management, while if all managing directors or the sole managing director are absent or prevented from performing their duties, the management of the company shall be temporarily entrusted to the person designated for this purpose by the general meeting.
Financial year and annual accounts
Article 12
1. | The financial year shall be the calendar year. |
2. | Annually, the management board shall draw up the annual accounts, consisting of a balance sheet, a profit-and-loss account and an explanation. |
3. | Unconditional adoption of the annual accounts by the general meeting shall serve to constitute a discharge of the managing directors for their management, insofar as such management is apparent from the annual accounts. |
Allocation of profits
Article 13
The profits are at the disposal of the general meeting.
General meetings of shareholders
Article 14
1. | The general meetings will be held in Amsterdam. |
2. | Annually, ultimately in the month March, a general meeting will be held, in which interalia the annual accounts and the allocation of profits will be determined. |
Article 15
The convocation of a general meeting shall take place by the management board not later than on the fifteenth day prior to the date of the general meeting.
Article 16
As long as the entire issued capital is represented at a general meeting, valid resolutions can be adopted on all subjects brought up for discussion, provided such resolutions are adopted unanimously, even if the formalities prescribed by law or by the articles of association for the convocation and holding of meetings have not been complied with.
Article 17
The general meeting shall itself choose its chairman.
Article 18
1. | The general meeting adopts all resolutions by a majority of the votes validly cast. |
2. | Each share confers the right to cast one vote. |
3. | On the shares of those, who, other than by virtue of being shareholder of the company, by adoption of the resolution shall be granted any right against the company or who shall be relieved of any obligation to the company, can be adopted valid resolutions. |
Article 19
Unless depository receipts of shares are issued with the co-operation of the company, resolutions of shareholders may also be adopted in writing without recourse to a general meeting (included telegram and telex messages), provided they are adopted by unanimous vote of all shareholders entitled to vote.
* * *
Exhibit T3A.7 | ||
1
| ||
HEESR/ZUTJ/5123524 40034656 | ||
STATUTENWIJZIGING Canada Northwest Oils (Europe) B.V. | ||
Op zeven en twintig augustus tweeduizend acht is voor mij, mr. Joannes Franciscus
Verlinden, notaris met plaats van vestiging Eindhoven,
verschenen: | ||
mevrouw Ravina Supriana Constancia, geboren te Rotterdam op tweeëntwintig
april negentienhonderd éénentachtig, met kantooradres Parklaan 54a, 5613 BH
Eindhoven. | ||
De comparant heeft het volgende
verklaard: | ||
De algemene vergadering van aandeelhouders van Canada Northwest Oils besloten vennootschap met beperkte aansprakelijkheid, gevestigd te Amsterdam en kantoorhoudende te 1097 JB Amsterdam, Prins Bernhardplein 200 (de vennootschap) heeft besloten de statuten van de vennootschap partieel te wijzigen, alsmede om de comparant te machtigen deze akte te
doen passeren. Van deze besluitvorming blijkt uit een aandeelhoudersbesluit
dat in kopie aan deze akte is gehecht
(Bijlage). | ||
De statuten van de vennootschap zijn laatstelijk gewijzigd bij akte op bij akte op acht
augustus tweeduizend zes verleden voor mr, J.A.M. ten Berg, notaris te
Eindhoven, - terzake waarvan een ministeriële verklaring van geen bezwaar werd
verleend op vijftien januari tweeduizend vijf, onder nummer B.V.
147112. | ||
Ter uitvoering van voormeld besluit tot statutenwijziging worden de statuten van de
vennootschap hierbij gewijzigd als
volgt. | ||
Wijziging
A. | ||
Artikel 3 wordt gewijzigd en komt te luiden als
volgt: | ||
Kapitaal en
aandelen | ||
Artikel
3 | ||
Het maatschappelijk kapitaal bedraagt éénhonderd twintig miljoen zeshonderd zestienduizend
euro (EUR 120.616.000,00), verdeeld in vierhonderdduizend (400.000) aandelen met een nominale
waarde van driehonderd één euro en vierenvijftig eurocent (EUR 301,54)
elk. | ||
Wijziging
B. | ||
Artikel 12 lid 3 wordt gewijzigd en komt te luiden ais
volgt: | ||
3. De algemene vergadering stelt de jaarrekening
vast. | ||
Wijziging
C. | ||
Na artikel 12 lid 3 wordt een nieuw lid ingevoegd, luidende als
volgt: | ||
4. De algemene vergadering kan volledige of beperkte decharge verlenen aan
de directeuren voor het gevoerde
bestuur. | ||
Slotverklaring. | ||
Per het moment waarop deze statutenwijziging van kracht wordt, wordt het
nominale |
2 | ||
bedrag van elk aandeel in het geplaatste kapitaal van de vennootschap verminderd met
vierenzestig euro en negenendertig eurocent (EUR 64,39) per aandeel en derhalve van driehonderd
vijfenzestig euro en drieënnegentig eurocent (EUR 365,93) tot driehonderd één euro en
vierenvijftig eurocent (EUR
301,54). | ||
Ten slotte heeft de comparant
verklaard: | ||
a. Vorenbedoelde kapitaalvermindering geschiedt met inachtneming van het
bepaalde in de artikelen 2:208 en 2:209 van het Burgerlijk Wetboek, waarvan blijkt uit een aan deze
akte gehechte verklaring de dato dertig Juli tweeduizend acht van de griffie van de
rechtbank te Amsterdam
(Bijlage). | ||
b. Per het moment waarop bovenstaande statutenwijziging van kracht wordt, bedraagt
het geplaatste kapitaal van de vennootschap negenendertig miljoen
driehonderd drieëntachtigduizend vijfhonderd zesendertig euro en tweeëndertig eurocent
(EUR 39.383.536,32), verdeeld in éénhonderd dertigduizend zeshonderd acht
(130.608) aandelen met een nominaal bedrag van
driehonderd één euro en vierenvijftig eurocent (EUR 301,54) elk. | ||
Verklaring van geen
bezwaar. | ||
Terzake van bovenstaande statutenwijziging is een ministeriële verkfaring van geen
bezwaar verleend op vijftien augustus tweeduizend
acht, onder nummer B.V. 147112, waarvan blijkt uit een schriftelijke verklaring van het Ministerie van Justitie die aan deze
akte is gehecht (Bijlage). | ||
Slot | ||
De comparant is mij, notaris,
bekend. | ||
Deze akte is verleden te Eindhoven op de datum aan het begin van deze akte
vermeld. | ||
De zakelijke inhoud van deze akte is aan de comparant opgegeven en toegelicht. | ||
De comparant heeft verklaard op volledige voorlezing van de akte geen prijs te stellen, tijdig voor het verlijden van de inhoud daarvan te hebben kennisgenomen en met de inhoud in te
stemmen. | ||
Onmiddellijk na beperkte voorlezing is deze akte eerst door de comparant en daarna door
mij, notaris,
ondertekend. | ||
(Volgt ondertekening) | ||
UlTGEGEVEN VOOR AFSCHRIFT | ||
/s/ J.F. Verlinden |
1/1
| ||
STATEMENT on fair office translation | ||
The undersigned: | ||
Joannes Franciscus Verlinden, civil law notary at Eindhoven, the Netherlands, | ||
declares: | ||
that the attached document is a fair office translation of, to the best of my knowledge, the consecutive wording in the Dutch language of the amendment of the articles of association of Canada Northwest Oils (Europe) B.V., a private limited liability company under Dutch law, having its official seat in Amsterdam, the Netherlands, including the amendment of the articles, effected by notarial deed, executed on the 27th Day of August 2088 before me, civil law notary. | ||
In preparing this document, an attempt has been made to translate as literally as possible without jeopardizing the overall continuity of the text. Inevitably, however, differences may occur in translation and if they do, the Dutch text will govern by law. | ||
In this translation, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to concepts described by the English terms as such terms may be understood under the laws of other jurisdictions. | ||
Eindhoven, June 5th 2009. | ||
/s/ J.F. Verlinden | ||
J.F. Verlinden | ||
|
1 |
HEESR/ZUTJ/5123524 40034656 | ||
NOTE ABOUT TRANSLATION: | ||
This document is an English translation of a document prepared in Dutch. In preparing this document, an attempt has been made to translate as literally as possible without jeopardizing the overall continuity of the text. Inevitably, however, differences may occur in translation and if they do, the Dutch text will govern by law. | ||
In this translation, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to concepts described by the English terms as such terms may be understood under the laws of other jurisdictions. | ||
Amendment of the articles of association | ||
Canada Northwest Oils (Europe) B.V. | ||
This twenty-seventh day of August two thousand eight, there appeared before me, Joannes Franciscus Verlinden, civil law notary at Eindhoven: | ||
Ravina Supriana Constancia, born in Rotterdam on the twenty-second day of April nineteen hundred and eighty-one, employed at Parklaan 54a, 5613 BH Eindhoven, the Netherlands. | ||
The person appearing declared the following: | ||
The general meeting of shareholders of Canada Northwest Oils (Europe) B.V., a private limited liability company under Dutch law (besloten vennootschap met beperkte aansprakelijkheid), having its official seat in Amsterdam and its office address at 1097 JB Amsterdam, Prins Bernhardplein 200 (the Company), resolved to partially amend the Articles of Association of the Company, as well as to authorize the person appearing to have this deed executed. The adoption of such resolutions is evidenced by a copy of the shareholders resolution attached to this deed (Annex). | ||
The Articles of Association of the Company were last amended by a deed, executed on the eight day of August two thousand six, before J.A.M. ten Berg, civil law notary officiating in Eindhoven, with respect to which a ministerial Statement of No Objections was granted on the fifteenth day of January two thousand five, under number B.V. 147112. | ||
In implementing the aforementioned resolution, the Articles of Association of the Company are hereby amended as follows. | ||
Amendment A. | ||
Article 3 is amended and shall read as follows: |
2 | ||
Capital and shares | ||
Article 3 | ||
The authorized capital of the company equals one hundred twenty million six hundred sixteen thousand euro (EUR 120,616,000.00), divided into four hundred thousand (400,000) shares with a nominal value of three hundred euro and eighty eurocent (EUR 301.54) each. | ||
Amendment B. | ||
Article 12, paragraph 3 is amended and shall read as follows: | ||
3. The general meeting of shareholders shall adopt the annual accounts. | ||
Amendment C. | ||
After Article 12, paragraph 3, a new paragraph is inserted, reading as follows: | ||
4. The general meeting of shareholders may grant full or limited discharge to the Management Board members for the management pursued. | ||
Final Statement. | ||
At the time this amendment of the Articles of Association takes effect, the nominal value of each issued share of the Company is reduced with an amount of sixty-four euro and thirty-nine eurocent (EUR 64.39) per share, from three hundred sixty-five euro and ninety-three eurocent (EUR 365.93) to three hundred one euro and fifty-four eurocent (EUR 301.54). | ||
Finally, the person appearing has declared: | ||
a. The aforementioned capital reduction is effectuated with due observance of the provisions of Sections 2:208 and 2:209 of the Dutch Civil Code which is evidenced by a statement dated on the thirtieth day of July two thousand eight of the clerk of the court of Amsterdam attached to this deed (Annex). | ||
b. At the time the foregoing amendment of the Articles of Association takes effect, the issued capital of the Company equals thirty-nine million three hundred eighty-three thousand five hundred thirty-six euro and thirty-two eurocent (EUR 39,383,536.32), divided into one hundred and thirty thousand six hundred eight (130,608) shares with a nominal value of three hundred one euro and fifty-four eurocent (EUR 301.54) each. | ||
Statement Of No Objections. | ||
With respect to the foregoing amendment of the Articles of Association, a ministerial Statement of No Objections of the Dutch Ministry of Justice was granted on the fifteenth day of August two thousand eight, under number B.V. 147112, which is evidenced by a written statement from the Dutch Ministry of Justice attached to this deed (Annex). | ||
End | ||
The person appearing is known to me, civil law notary. | ||
This deed was executed in Eindhoven on the date stated in the first paragraph of this deed. | ||
The contents of the deed have been stated and clarified to the person appearing. | ||
The person appearing has declared not to wish the deed to be fully read out, to have noted the contents of the deed timely before its execution and to agree with the contents. | ||
After limited reading, this deed was signed first by the person appearing and |
3 | ||
thereafter by me, civil law notary. |
Exhibit T3A.8
Exhibit T3A.10
ARTICLES OF INCORPORATION STATUTS CONSTITUTIFS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Form 1 Business Corporations Act |
1. The name of the corporation is: (Set out in BLOCK CAPITAL LETTERS) Dénomination sociale de la société: (Écrire en LETTRES MAJUSCULES SEULEMENT) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
D | Y | N | A | T | E | C | T | E | C | H | N | O | L | O | G | I | E | S | L | T | D | . | ||||||||||||||||||||||||||||||||||||||||
Formule 1 Loi sur les sociétés par actions |
2. The address of the registered office is: Adresse du siège social : | |||||
1133 Yonge Street, 5th Floor | ||||||
(Street & Number or R.R. Number & if Multi-Office Building give Room No.) | ||||||
(Rue et numéro ou numéro de la R.R. et, sil sagit dun édifice à bureaux, numéro du bureau)
|
Toronto |
ONTARIO | M | 4 | T | 2 | Y | 7 | |||||||||||||
(Name of Municipality or Post Office) |
(Postal Code) | |||||||||||||||||||
(Nom de la municipalité ou du bureau de poste) |
(Code Postal) |
3. Number (or minimum and maximum number) of directors is/are: |
minimum/minimal |
maximum/maximal | ||||
Nombre (ou nombres minimal et maximal) dadministrateurs : |
1 | 10 |
4. The first director(s) is/are: Premier(s) administrateur(s) :
First name, middle names and surname Prénom, autres Prénoms et nom de famille |
Address for service, giving Street & No. or R.R. No., Municipality, Province, Country and Postal Code Domicile élu, y compris la rue et le numéro, le numéro de la R.R. ou le nom de la municipalite, la province, le pays et le code postal |
Resident Canadian? Yes or No Résident canadien? Oui/Non | ||||
Jowdat Waheed |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 |
Yes | ||||
Guy I. Bentinck |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 |
Yes | ||||
Julie Lee Harrs |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 |
Yes | ||||
07116 (01/2002) |
1
5. Restrictions, if any, on business the corporation may carry on or on powers the corporation may exercise. Limites, sil y a lieu, imposées aux activités commerciales ou aux pouvoirs de la société. | ||
None | ||
6. The classes and any maximum number of shares that the corporation is authorized to issue: Catégories et nombre maximal, sil y a lieu, dactions que la société est autorisee à émettre : | ||
an unlimited number of common shares | ||
07116 (01/2002) |
2
7. Rights, privileges, restrictions and conditions (if any) attaching to each class of shares and directors authority with respect to any class of shares which may be issued in series: | ||
Droits, privilèges, restrictions et conditions, sil y a lieu, rattachés à chaque catégorie dactions et pouvoirs des administrateurs relatifs à chaque catégorie dactions qui peut être émise en série: | ||
N/A | ||
07116 (01/2002) |
3
8. The issue, transfer or ownership of shares is/is not restricted and the restrictions (if any) are as follows: Lémission, le transfert ou la propriété dactions est/nest pas restreint. Les restrictions, sil y a lieu, sont les suivantes :
The transfer of securities (other than non-convertible debt securities) of the Corporation shall be restricted in that no securityholder shall be entitled to transfer any such security or securities without either:
(a) the approval of the directors of the Corporation expressed by a resolution passed at a meeting of the board of directors or by an instrument or instruments in writing signed by a majority of the directors; or
(b) the approval of the holders of at least a majority of the shares of the Corporation entitling the holders thereof to vote in all circumstances (other than holders of shares who are entitled to vote separately as a class) for the time being outstanding expressed by a resolution passed at a meeting of the holders of such shares or by an instrument or instruments in writing signed by the holders of a majority of such shares. | ||
07116 (01/2002) |
4
9. Other provisions if any: Autres dispositions, sil y a lieu : | ||
None | ||
07116 (01/2002) |
5
10. The names and addresses of the incorporators are: Noms et adresses des fondateurs : |
||||||
First name, middle names and surname or corporate name Prénom, autres prénoms et nom de famille ou dénomination sociale |
Full address for service or address of registered office or of principal place of business giving street & No. or R.R. No., municipality and postal code Domicile élu au complet, adresse du siége social ou adresse de Iétablissement principal, y compris la rue et le numéro ou le numero de la R.R., le nom de la municipalité et le code postal | |||||
Jowdat Waheed |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 | |||||
Guy I. Bentinck |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 | |||||
Julie Lee Harrs |
1133 Yonge Street, 5th Floor Toronto, Ontario M4T 2Y7 | |||||
These articles are signed in duplicate. Les présents statuts sont signés en double exemplaire. | ||||||
Signatures of incorporator(s) / Signatures des fondateurs |
/s/ Jowdat Waheed |
/s/ Guy I. Bentinck | |||||||
Jowdat Waheed |
Guy I. Bentinck | |||||||
/s/ Julie Lee Harrs |
||||||||
Julie Lee Harrs |
||||||||
07116 (01/2002) |
6
Exhibit T3A.11
Incorporate Alberta Corporation - Registration Statement
Alberta Registration Date: 2012/10/18
Corporate Access Number: 2017075314
Service Request Number: | 18705695 | |
Alberta Corporation Type: | Named Alberta Corporation | |
Legal Entity Name: | OG FINANCE INC. | |
French Equivalent Name: | ||
Nuans Number: | 107001349 | |
Nuans Date: | 2012/09/20 | |
French Nuans Number: | ||
French Nuans Date: | ||
REGISTERED ADDRESS | ||
Street: | 2900, 10180 - 101 STREET | |
Legal Description: | ||
City: | EDMONTON | |
Province: | ALBERTA | |
Postal Code: | T5J 3V5 | |
RECORDS ADDRESS | ||
Street: | 2900, 10180 - 101 STREET | |
Legal Description: | ||
City: | EDMONTON | |
Province: | ALBERTA | |
Postal Code: | T5J 3V5 | |
ADDRESS FOR SERVICE BY MAIL | ||
Post Office Box: | ||
City: | ||
Province: | ||
Postal Code: | ||
Internet Mail ID: | ||
Share Structure: | SEE SCHEDULE ATTACHED | |
Share Transfers Restrictions: | SEE SCHEDULE ATTACHED | |
Number of Directors: | ||
Min Number Of Directors: | 1 | |
Max Number Of Directors: | 9 | |
Business Restricted To: | NONE | |
Business Restricted From: | NONE |
Other Provisions: | SEE SCHEDULE ATTACHED | |
Professional Endorsement Provided: | ||
Future Dating Required: | ||
Registration Date: | 2012/10/18 |
Director
Last Name: | ROBINS | |
First Name: | MICHAEL | |
Middle Name: | ||
Street/Box Number: | 5TH FLOOR, 1133 YONGE STREET | |
City: | TORONTO | |
Province: | ONTARIO | |
Postal Code: | M4T 2Y7 | |
Country: | ||
Resident Canadian: | Y | |
Last Name: | BODLEY | |
First Name: | STEPHEN | |
Middle Name: | ||
Street/Box Number: | 5TH FLOOR, 1133 YONGE STREET | |
City: | TORONTO | |
Province: | ONTARIO | |
Postal Code: | M4T 2Y7 | |
Country: | ||
Resident Canadian: | Y | |
Last Name: | SARUK | |
First Name: | ELVIN | |
Middle Name: | ||
Street/Box Number: | SUITE 2000, 425 - 1 STREET SW | |
City: | CALGARY | |
Province: | ALBERTA | |
Postal Code: | T2P 3L8 | |
Country: | ||
Resident Canadian: | Y |
Attachment
Attachment Type | Microfilm Bar Code | Date Recorded | ||
Other Rules or Provisions | ELECTRONIC | 2012/10/18 |
Share Structure | ELECTRONIC | 2012/10/18 | ||
Restrictions on Share Transfers | ELECTRONIC | 2012/10/18 |
Registration Authorized By: | LEANNE C. KRAWCHUK |
Articles of Incorporation
For
OG FINANCE INC.
Share Structure: | SEE SCHEDULE ATTACHED | |
Share Transfers Restrictions: | SEE SCHEDULE ATTACHED | |
Number of Directors: | ||
Min Number of Directors: | 1 | |
Max Number of Directors: | 9 | |
Business Restricted To: | NONE | |
Business Restricted From: | NONE | |
Other Provisions: | SEE SCHEDULE ATTACHED |
Registration Authorized By: | LEANNE C. KRAWCHUK SOLICITOR |
AUTHORIZED CAPITAL
The Corporation is authorized to issue an unlimited number of Common Shares, which, as a class, have and are subject to the following rights, privileges, restrictions and conditions:
1. | Voting Right |
Each holder of a Common Share shall be entitled to receive notice of, to attend and to vote at all meetings of the shareholders of the Corporation. Each holder of a Common Share shall be entitled to one (1) vote for each Common Share held.
2. | Dividends |
Each holder of a Common Share shall be entitled to receive dividends as and when declared and payable, provided that no dividend shall at any time be declared or paid on the Common Shares if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities and the stated capital of all classes.
3. | Liquidation, Dissolution or Winding-Up |
Each holder of a Common Share shall be entitled to participate, on a proportionate basis, in a distribution of the remaining property of the Corporation in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary.
4. | Ranking |
The rights, privileges and entitlements of a Common Share rank ratably and on a parity with those of all other Common Shares.
SHARE TRANSFER RESTRICTIONS
So long as the corporation is a private issuer as defined in securities law, no securities of the corporation, other than non-convertible debt securities, shall be transferred without the consent of the directors, expressed by a resolution.
StandB.ans
OTHER PROVISIONS
1. | Lien On Shares |
The corporation shall have a first and paramount lien on a share registered in the name of a shareholder or his legal representative, whether registered solely or jointly with any other person, for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by the corporation on the date it was incorporated under The Business Corporations Act (Alberta), whether the period for payment, fulfillment or discharge of that debt shall have actually arrived or not. The lien shall extend to all dividends and distributions of capital declared or otherwise payable on such shares.
2. | Appointment of Directors |
The directors may, between annual general meetings, appoint one (1) or more additional directors of the corporation to serve until the next annual general meeting, provided that the number of additional directors shall not at any time exceed one-third (1/3) of the number of directors who held office at the expiration of the last annual meeting of the corporation.
3. | Borrowing |
The directors may
(a) | borrow money on the credit of the corporation, |
(b) | issue, reissue, sell or pledge debt obligations of the corporation, |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person, and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
4. | Meetings of Shareholders |
Meetings of shareholders of the corporation may be held inside or outside the Province of Alberta.
StandC.ans
Exhibit T3A.12
Incorporate Alberta Corporation - Registration Statement
Alberta Registration Date: 2012/10/18
Corporate Access Number: 2017075272
Service Request Number: |
18705609 | |
Alberta Corporation Type: |
Named Alberta Corporation | |
Legal Entity Name: |
POWER FINANCE INC. | |
French Equivalent Name: |
||
Nuans Number: |
107001352 | |
Nuans Date: |
2012/09/20 | |
French Nuans Number: |
||
French Nuans Date: |
||
REGISTERED ADDRESS |
||
Street: |
2900, 10180 - 101 STREET | |
Legal Description: |
||
City: |
EDMONTON | |
Province: |
ALBERTA | |
Postal Code: |
T5J 3V5 | |
RECORDS ADDRESS |
||
Street: |
2900, 10180 - 101 STREET | |
Legal Description: |
||
City: |
EDMONTON | |
Province: |
ALBERTA | |
Postal Code: |
T5J 3V5 | |
ADDRESS FOR SERVICE BY MAIL | ||
Post Office Box: |
||
City: |
||
Province: |
||
Postal Code: |
||
Internet Mail ID: |
||
Share Structure: |
SEE SCHEDULE ATTACHED | |
Share Transfers Restrictions: |
SEE SCHEDULE ATTACHED | |
Number of Directors: |
||
Min Number Of Directors: |
1 | |
Max Number Of Directors: |
9 | |
Business Restricted To: |
NONE | |
Business Restricted From: |
NONE |
Other Provisions: | SEE SCHEDULE ATTACHED | |
Professional Endorsement Provided: | ||
Future Dating Required: | ||
Registration Date: | 2012/10/18 |
Director | ||
Last Name: | ROBINS | |
First Name: | MICHAEL | |
Middle Name: | ||
Street/Box Number: | 5TH FLOOR, 1133 YONGE STREET | |
City: | TORONTO | |
Province: | ONTARIO | |
Postal Code: | M4T 2Y7 | |
Country: | ||
Resident Canadian: | Y | |
Last Name: | BODLEY | |
First Name: | STEPHEN | |
Middle Name: | ||
Street/Box Number: | 5TH FLOOR, 1133 YONGE STREET | |
City: | TORONTO | |
Province: | ONTARIO | |
Postal Code: | M4T 2Y7 | |
Country: | ||
Resident Canadian: | Y | |
Last Name: | SARUK | |
First Name: | ELVIN | |
Middle Name: | ||
Street/Box Number: | SUITE 2000, 425 - 1 STREET SW | |
City: | CALGARY | |
Province: | ALBERTA | |
Postal Code: | T2P 3L8 | |
Country: | ||
Resident Canadian: | Y |
Attachment
Attachment Type |
Microfilm Bar Code | Date Recorded | ||||
Share Structure |
ELECTRONIC | 2012/10/18 |
Restrictions on Share Transfers |
ELECTRONIC | 2012/10/18 | ||||
Other Rules or Provisions |
ELECTRONIC | 2012/10/18 |
Registration Authorized By: | LEANNE C. KRAWCHUK | |
SOLICITOR |
Articles of Incorporation
For
POWER FINANCE INC.
Share Structure: |
SEE SCHEDULE ATTACHED | |
Share Transfers Restrictions: |
SEE SCHEDULE ATTACHED | |
Number of Directors: |
||
Min Number of Directors: |
1 | |
Max Number of Directors: |
9 | |
Business Restricted To: |
NONE | |
Business Restricted From: |
NONE | |
Other Provisions: |
SEE SCHEDULE ATTACHED |
Registration Authorized By: |
LEANNE C. KRAWCHUK SOLICITOR |
AUTHORIZED CAPITAL
The Corporation is authorized to issue an unlimited number of Common Shares, which, as a class, have and are subject to the following rights, privileges, restrictions and conditions:
1. | Voting Right |
Each holder of a Common Share shall be entitled to receive notice of, to attend and to vote at all meetings of the shareholders of the Corporation. Each holder of a Common Share shall be entitled to one (1) vote for each Common Share held.
2. | Dividends |
Each holder of a Common Share shall be entitled to receive dividends as and when declared and payable, provided that no dividend shall at any time be declared or paid on the Common Shares if there are reasonable grounds for believing that, after the payment of the dividend, the realizable value of the Corporations assets would be less than the aggregate of the Corporations liabilities and the stated capital of all classes.
3. | Liquidation, Dissolution or Winding-Up |
Each holder of a Common Share shall be entitled to participate, on a proportionate basis, in a distribution of the remaining property of the Corporation in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary.
4. | Ranking |
The rights, privileges and entitlements of a Common Share rank ratably and on a parity with those of all other Common Shares.
SHARE TRANSFER RESTRICTIONS
So long as the corporation is a private issuer as defined in securities law, no securities of the corporation, other than non-convertible debt securities, shall be transferred without the consent of the directors, expressed by a resolution.
StandB.ans
OTHER PROVISIONS
1. | Lien On Shares |
The corporation shall have a first and paramount lien on a share registered in the name of a shareholder or his legal representative, whether registered solely or jointly with any other person, for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by the corporation on the date it was incorporated under The Business Corporations Act (Alberta), whether the period for payment, fulfillment or discharge of that debt shall have actually arrived or not. The lien shall extend to all dividends and distributions of capital declared or otherwise payable on such shares.
2. | Appointment of Directors |
The directors may, between annual general meetings, appoint one (1) or more additional directors of the corporation to serve until the next annual general meeting, provided that the number of additional directors shall not at any time exceed one-third (1/3) of the number of directors who held office at the expiration of the last annual meeting of the corporation.
3. | Borrowing |
The directors may
(a) | borrow money on the credit of the corporation, |
(b) | issue, reissue, sell or pledge debt obligations of the corporation, |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person, and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
4. | Meetings of Shareholders |
Meetings of shareholders of the corporation may be held inside or outside the Province of Alberta.
StandC.ans
Exhibit T3A. 13
Innovation, Science and | Innovation, Sciences et | |||
Economic Development Canada | Développement économique Canada | |||
Corporations Canada | Corporations Canada |
Certificate of Continuance
Canada Business Corporations Act |
Certificat de prorogation
Loi canadienne sur les sociétés par actions | |
Sherritt Bulk Commodities and Transportation Ltd. | ||
Corporate name / Dénomination sociale | ||
1158610-6 | ||
Corporation number / Numéro de société | ||
I HEREBY CERTIFY that the above-named corporation, the articles of continuance of which are attached, is continued under section 187 of the Canada Business Corporations Act (CBCA). | JE CERTIFIE que la société susmentionnée, dont les clauses de prorogation sont jointes, est prorogée en vertu de larticle 187 de la Loi canadienne sur les sociétés par actions (LCSA). | |
/s/ Raymond Edwards | ||
Raymond Edwards | ||
Director / Directeur | ||
2019-08-23 | ||
Date of Continuance (YYYY-MM-DD) | ||
Date de prorogation (AAAA-MM-JJ)
|
Innovation, Science and | Innovation, Sciences et | |||
Economic Development Canada | Développement économique Canada | |||
Corporations Canada | Corporations Canada |
Form 11 | Formulaire 11 | |||
Articles of Continuance | Clauses de prorogation | |||
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions | |||
(CBCA) (s. 187) | (LCSA) (art. 187) |
1 |
Corporate name Dénomination sociale Sherritt Bulk Commodities and Transportation Ltd.
| |
2 | The province or territory in Canada where the registered office is situated La province ou le territoire au Canada où est situé le siège social ON
| |
3 | The classes and the maximum number of shares that the corporation is authorized to issue Catégories et le nombre maximal dactions que la société est autorisée à émettre Unlimited number of Common Shares
| |
4 | Restrictions on share transfers Restrictions sur le transfert des actions See attached schedule / Voir lannexe ci-jointe
| |
5 | Minimum and maximum number of directors Nombre minimal et maximal dadministrateurs Min. 1 Max. 9
| |
6 | Restrictions on the business the corporation may carry on Limites imposées à lactivité commerciale de la société None
| |
7 | (1) If change of name effected, previous name Sil y a changement de dénomination sociale, indiquer la dénomination sociale antérieure Not Applicable / Sans objet
(2) Details of incorporation Détails de la constitution Incorporated under the Alberta Business Corporations Act on May 9, 2017
| |
8 | Other Provisions Autres dispositions See attached schedule / Voir lannexe ci-jointe
| |
9 | Declaration: I certify that I am a director or an officer of the company continuing into the CBCA. Déclaration : Jatteste que je suis un administrateur ou un dirigeant de la société se prorogeant sous le régime de la LCSA. |
Original signed by / Original signé par |
Ward Sellers |
Ward Sellers |
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250(1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible dune amende maximale de 5 000 $ et dun emprisonnement maximal de six mois, ou lune de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049.
IC 3247 (2008/04) |
SHARE TRANSFER RESTRICTIONS
So long as the corporation is a private issuer as defined in securities law, no securities of the corporation, other than non-convertible debt securities, shall be transferred without the consent of the directors, expressed by a resolution.
41107813_1|NATDOCS
OTHER PROVISIONS
1. | Lien On Shares |
The corporation shall have a first and paramount lien on a share registered in the name of a shareholder or his legal representative, whether registered solely or jointly with any other person, for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by the corporation on the date it was incorporated under the Canada Business Corporations Act, whether the period for payment, fulfilment or discharge of that debt shall have actually arrived or not. The lien shall extend to all dividends and distributions of capital declared or otherwise payable on such shares.
2. | Appointment of Directors |
The directors may, between annual general meetings, appoint one (1) or more additional directors of the corporation to serve until the next annual general meeting, provided that the number of additional directors shall not at any time exceed one-third (1/3) of the number of directors who held office at the expiration of the last annual meeting of the corporation.
3. | Borrowing |
The directors may
(a) | borrow money on the credit of the corporation, |
(b) | issue, reissue, sell or pledge debt obligations of the corporation, |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person, and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
4. | Meetings of Shareholders |
Meetings of shareholders of the corporation may be held inside or outside the Canada.
41107796_1|NATDOCS
Innovation, Science and | Innovation, Sciences et | |||
Economic Development Canada | Développement économique Canada | |||
Corporations Canada | Corporations Canada |
Form 2 | Formulaire 2 | |||
Initial Registered Office Address | Siège social initial et premier | |||
and First Board of Directors | conseil dadministration | |||
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions | |||
(CBCA) (s. 19 and 106) | (LCSA) (art. 19 et 106) |
1 |
Corporate name Dénomination sociale Sherritt Bulk Commodities and Transportation Ltd.
| |
2 | Address of registered office Adresse du siège social 4220-22 Adelaide Street West Toronto ON M5H 4E3
| |
3 | Additional address Autre adresse
| |
4 | Members of the board of directors Membres du conseil dadministration |
Resident Canadian | ||||||
Résident Canadien | ||||||
Andrew Snowden | 4220-22 Adelaide Street West, Toronto ON | Yes / Oui | ||||
M5H 4E3, Canada | ||||||
Ward Sellers | 4220-22 Adelaide Street West, Toronto ON | Yes / Oui | ||||
M5H 4E3, Canada |
5 |
Declaration: I certify that I have relevant knowledge and that I am authorized to sign this form. Déclaration : Jatteste que je possède une connaissance suffisante et que je suis autorisé(e) à signer le présent formulaire. |
Original signed by / Original signé par Ward Sellers |
|
Ward Sellers |
416-935-2411 |
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250(1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible dune amende maximale de 5 000 $ et dun emprisonnement maximal de six mois, ou lune de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049.
IC 2904 (2008/04) |
Exhibit T3A. 14
Innovation, Science and | Innovation, Sciences et | |||
Economic Development Canada | Développement économique Canada | |||
Corporations Canada | Corporations Canada |
Certificate of Amendment
Canada Business Corporations Act |
Certificat de modification
Loi canadienne sur les sociétés par actions | |
SBCT Logistics Ltd. | ||
Corporate name / Dénomination sociale | ||
1158610-6 | ||
Corporation number / Numéro de société | ||
I HEREBY CERTIFY that the articles of the above-named corporation are amended under section 178 of the Canada Business Corporations Act as set out in the attached articles of amendment. | JE CERTIFIE que les statuts de la société susmentionnée sont modifiés aux termes de larticle 178 de la Loi canadienne sur les sociétés par actions, tel quil est indiqué dans les clauses modificatrices ci-jointes. | |
/s/ Raymond Edwards | ||
Raymond Edwards | ||
Director / Directeur | ||
2019-09-23 | ||
Date of amendment (YYYY-MM-DD) | ||
Date de modification (AAAA-MM-JJ)
|
Innovation, Science and | Innovation, Sciences et | |||
Economic Development Canada | Développement économique Canada | |||
Corporations Canada | Corporations Canada |
Form 4 | Formulaire 4 | |
Articles of Amendment | Clauses modificatrices | |
Canada Business Corporations Act | Loi canadienne sur les sociétés par | |
(CBCA) (s. 27 or 177) | actions (LCSA) (art. 27 ou 177) |
1 |
Corporate name Dénomination sociale Sherritt Bulk Commodities and Transportation Ltd.
| |
2 | Corporation number Numéro de la société 1158610-6
| |
3 | The articles are amended as follows Les statuts sont modifiés de la façon suivante
The corporation changes its name to: La dénomination sociale est modifiée pour : SBCT Logistics Ltd.
| |
4 | Declaration: I certify that I am a director or an officer of the corporation. Déclaration : Jatteste que je suis un administrateur ou un dirigeant de la société. | |
Original signed by / Original signé par |
Leanne C. Krawchuk |
Leanne C. Krawchuk |
780-423-7100 |
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250 (1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible dune amende maximale de 5 000 $ et dun emprisonnement maximal de six mois, ou lune de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049.
IC 3069 (2008/04) |
Exhibit T3A. 15
No. 27,996 B
SHERRITT INTERNATIONAL (BAHAMAS) INC.
Certificate of Resolution
RESOLVED that the Memorandum of Association of the Company be hereby amended by deleting Clauses 2. and 3. and substituting therefor the following:
2. | The registered office of the Company is situate at the offices of M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas. |
3. | The registered agent of the Company is M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas. |
I, Paul D. Knowles, Assistant Secretary of SHERRITT INTERNATIONAL (BAHAMAS) INC., hereby certify that the foregoing is a true and correct copy of the Resolution passed by the Directors of the Company on the 4th day of December, 2006.
AS WITNESS my hand and the Seal of the Company this 4th day of December, 2006. | ||
|
/s/ Paul D. Knowles | |
Assistant Secretary | ||
No. 27,996B SHERRITT INTERNATIONAL (BAHAMAS) INC. IBC01 I, kelphene CUNNINGHAM Registrar general of the Commonwealth of The Bahamas Do Hereby Certify pursuant to the International Business Companies Act (No.2 of 1990) that all the requirements of the said Act in respect of incorporation have been satisfied and that SHERRITT INTERNATIONAL (BAHAMAS) INC. is incorporated in the Commonwealth of The Bahamas as an International Business Company this 24TH day of NOVEMBER 1994 COMMONWEALTH OF THE BAHAMAS given under my hand and seal at Nassau in the Common-wealth of The Bahamas Registrar Generals Department I certify the foregoing to be a true copy of the original document. Asst. Registrar General Registrar general Commonwealth of The Bahamas The International Business Companies Act (No. 2 of 1990) Certificate of Incorporation (Section 11 and 12)
The International Business Companies Act
Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
SHERRITT INTERNATIONAL (BAHAMAS) INC.
1. The name of the Company is SHERRITT INTERNATIONAL (BAHAMAS) INC.
2. The registered office of the Company will be situate in the Chambers of Messrs. McKinney, Bancroft & Hughes, Mareva House, 4 George Street, Nassau, Bahamas.
3. The registered agent of the Company will be Messrs. McKinney, Bancroft & Hughes, Mareva House, 4 George Street, Nassau, Bahamas.
4. The object or purpose for which the Company is established is to engage in any act or activity that is not prohibited under any law for the time being in force in The Commonwealth of the Bahamas.
5. (1) The Company may not
(a) | carry on business with persons resident in in the Commonwealth of the Bahamas; |
(b) | own an interest in real property situate in the Commonwealth of the Bahamas, other than a lease referred to in paragraph (e) of subclause (2) of this clause; |
(c) | carry on banking or trust business as defined by the Banks and Trust Companies Regulation Act; |
(d) | carry on business as an insurance or a reinsurance company; or |
(e) | carry on the business of providing the registered office for companies. |
(2) | For the purposes of paragraph (a) of subclause (1) of this clause, the Company shall not be treated as carrying on business with persons resident in the Commonwealth of the Bahamas if: |
(a) | it makes or maintains deposits with a person carrying on business within the Commonwealth of the Bahamas; |
(b) | it makes or maintains professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or other similar persons carrying on business within the Commonwealth of the Bahamas;. |
(c) | it prepares or maintains books and records within the Commonwealth of the Bahamas;. |
(d) | it holds, within the Commonwealth of the Bahamas, meetings of its directors or members; |
- 2 -
(e) | it holds a lease of property for use as an office from which to communicate with members or where books and records of the company are prepared or maintained; |
(f) | it holds shares, debt obligations or other securities in a company incorporated under this Act or under the Companies Act; or |
(g) | shares, debt obligations or other securities in the company are owned by any person resident in the Commonwealth of the Bahamas or by any company incorporated under this Act or under the Companies Act. |
6. The liability of the members is limited.
7. Shares in the Company shall be issued in the currency of the United States of America.
8. The authorised capital of the Company is made up of one class of common shares divided into Five hundred million (500,000,000) shares without par value with one vote for each share.
9. The designations, powers, preferences, rights, qualifications, limitations and restrictions of each class and series of shares that the Company is authorised to issue shall be fixed by resolution of directors, but the directors shall not allocate different rights as to voting, dividends, redemption or distributions on liquidation unless the Memorandum of Association shall have been amended to create separate classes of shares and all the aforesaid rights as to voting, dividends, redemption and distributions shall be identified in each separate class.
- 3 -
10. The directors of the Company are to be granted authority to issue shares as registered shares.
11. Registered Shares in the Company may be transferred subject to the prior or subsequent approval of the Company as evidenced by a resolution of directors or by a resolution of members.
12. The Company may amend its Memorandum of Association and Articles of Asssociation by a resolution of members or by resolution of directors.
WE, McKINNEY NOMINEES LIMITED and HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas, for the purpose of incorporating an International Business Company under the laws of the Commonwealth of the Bahamas, hereby subscribe our names to this Memorandum of Association the 24th day of November, 1994 in the presence of:
Subscribers
| ||
PAUL D. KNOWLES (sgd.)
|
M. A. TAYLOR (sgd.)
| |
Paul D. Knowles Vice-President |
M. A. Taylor Secretary | |
McKINNEY NOMINEES LIMITED
| ||
PAUL D. KNOWLES (sgd.)
|
M. A. TAYLOR (sgd.)
| |
Paul D. Knowles Vice-President |
M. A. Taylor Secretary |
HUGHES COMPANY LIMITED
| ||
COMMONWEALTH OF THE BAHAMAS | ||
Witness: |
Registrar Generals Department I certify the foregoing to be a true copy of the | |
M. M. KNOWLES (sgd.) |
original document. |
- 4 -
COMMONWEALTH OF THE BAHAMAS
New Providence.
Dated the 24th day of November, 1994.
MEMORANDUM OF ASSOCIATION
OF
SHERRITT INTERNATIONAL (BAHAMAS) INC.
McKinney, Bancroft & Hughes
Attorneys-at-Law
Chambers
Nassau, Bahamas
Exhibit T3A. 16
The International Business Companies Act
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
SHERRITT INTERNATIONAL (BAHAMAS) INC.
Preliminary
1. In these Articles, if not inconsistent with the subject or context, the words and expressions standing in the first column of the following table shall bear the meanings set opposite them respectively in the second column thereof.
Words |
Meanings | |
capital |
The sum of: | |
(a) the aggregate of the amounts designated as capital of all outstanding shares without par value of the Company and shares without par value held by the Company as treasury shares, and | ||
(b) the amounts as are from time to time transferred from surplus to capital by a resolution of directors. | ||
member |
A person who holds shares in the Company. | |
person |
An individual, a corporation, a trust, the estate of a deceased individual, a partnership or an unincorporated association of persons. | |
resolution of directors |
(a) a Resolution approved at a duly constituted meeting of directors of the Company or of a committee of directors of the Company by the affirmative vote of a simple majority of the directors present who voted and did not abstain where the |
resolution of members |
(a) A resolution approved at a duly constituted meeting of the members of the Company by the affirmative vote of | |
(i) a simple majority of the votes of the shares which were present at the meeting and were voted and not abstained, or | ||
(ii) a simple majority of the votes of each class or series of shares which were present at the meeting and entitled to vote thereon as a class or series and were voted and not abstained and of a simple majority of the votes of the remaining shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or | ||
(b) a resolution consented to in writing by | ||
(i) an absolute majority of the votes of shares entitled to vote thereon, or | ||
(ii) an absolute majority of the votes of each class or series of shares entitled to vote thereon as a class or series and of an absolute majority of the votes of the remaining shares entitled to vote thereon; | ||
securities |
Shares and debt obligations of every kind, and options, warrants and rights to acquire shares, or debt obligations. | |
surplus |
The excess, if any, at the time of the determination of the total assets of the Company over the aggregate of its total liabilities, as shown in its books of account, plus the Companys capital. | |
the Memorandum |
The Memorandum of Association of the Company as originally framed or as from time to time amended. | |
the Act |
The International Business Companies Act 1989 (No.2 of 1990). | |
the Seal |
The Common Seal of the Company. | |
these Articles |
These Articles of Association as originally framed or as from time to time amended. | |
treasury shares |
Shares in the Company that were previously issued but were repurchased, redeemed or otherwise acquired by the Company and not cancelled. |
- 2 -
Written or any term of like import includes words typewritten, printed, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in a visible form, including telex, telegram, cable or other form of writing produced by electronic communication.
Save as aforesaid any words or expressions defined in the Act shall bear the same meaning in these Articles.
Whenever the singular or plural number, or the masculine, feminine or neuter gender is used in these Articles, it shall equally, where the context admits, include the others.
A reference in these Articles to voting in relation to shares shall be construed as a reference to voting by members holding the shares except that it is the votes allocated to the shares that shall be counted and not the number of members who actually voted and a reference to shares being present at a meeting shall be given a corresponding construction.
A reference to money in these Articles is a reference to the currency of the United States of America unless otherwise stated.
SHARES, AUTHORISED CAPITAL AND CAPITAL
2. The Company shall issue to every member holding shares in the Company a certificate either (a) under the signatures of two directors or officers or (b) under the seal and the signature of one director or officer specifying the share or shares held by him and the signature of the director or officer and the seal may be facsimiles.
3. Any member receiving a share certificate for shares shall indemnify and hold the Company and its directors and officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession thereof. If a share certificate for shares is worn out or lost it may be renewed on production of the worn out certificate or on satisfactory proof of its loss together with such indemnity as may be required by a resolution of directors.
4. If several persons are registered as joint holders of any shares, any one of such persons may give an effectual receipt for any dividend payable in respect of such shares.
5. Subject to the provisions of these Articles and any resolution of members the unissued shares of the Company shall be at the disposal of the directors who may without prejudice to any rights previously conferred on the holders of any existing shares or class or series of shares, offer, allot, grant options over or otherwise dispose of the shares to such persons, at such times and upon such terms and conditions as the Company may by resolution of directors determine.
6. Shares in the Company shall be issued for money, services rendered, personal property, an estate in real property, a
- 3 -
promissory note or other binding obligation to contribute money or property or any combination of the foregoing as shall be determined by a resolution of directors.
7. Shares in the Company may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine, and in the absence of fraud the decision of the directors as to the value of the consideration received by the Company in respect of the issue is conclusive unless a question of law is involved.
8. A share issued by the Company upon conversion of, or in exchange for, another share or a debt obligation or other security in the Company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the Company in respect of the other share, debt obligation or security.
9. Treasury shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with these Articles) as the Company may by resolution of directors determine.
10. The Company may issue fractions of a share and a fractional share shall have the same corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class or series of shares.
11. Upon the issue by the Company of a share without par value, the consideration in respect of the share constitutes capital to the extent designated by the directors and the excess constitutes surplus, except that the directors must designate as capital an amount of the consideration that is at least equal to the amount that the share is entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
12. The Company may purchase, redeem or otherwise acquire and hold its own shares but no purchase, redemption or other acquisition which shall constitute a reduction in capital shall be made otherwise than in compliance with Articles 27 and 28.
13. Shares that the Company purchases, redeems or otherwise acquires pursuant to Article 12 may be cancelled or held as treasury shares unless the shares are purchased, redeemed or otherwise acquired out of capital and would otherwise infringe upon the requirements of Articles 28 and 29, or to the extent that such shares are in excess of 80 percent of the issued shares of the Company in which case they shall be cancelled but they shall be available for reissue. Upon the cancellation of a share, the amount included as capital of the Company with respect to that share shall be deducted from the capital of the Company.
14. Where shares in the Company are held by the Company as treasury shares or are held by another company of which the Company holds, directly or indirectly, shares having more than 50 percent of the votes in the election of directors of the other company, such shares of the Company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for
- 4 -
any purpose except for purposes of determining the capital of the Company.
15. No invitation shall be issued to the public by the Company or the directors for the time being thereof to subscribe for any shares or debentures of the Company.
16. No notice of a trust, whether expressed, implied or constructive, shall be entered in the share register.
TRANSFER OF SHARES
17. Subject to any limitations in the Memorandum, registered shares in the Company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, but in the absence of such written instrument of transfer the directors may accept such evidence of a transfer of shares as they consider appropriate.
18. The Company shall not be required to treat a transferee of a registered share in the Company as a member until the transferees name has been entered in the share register.
19. Subject to the approval of the Directors, not to be unreasonably withheld, the Company must on the application of the transferor or transferee of a registered share in the Company enter in the share register the name of the transferee of the share save that the registration of transfers may be suspended and the share register closed at such times and for such periods as the Company may from time to time by resolution of Directors determine provided always that such registration shall not be suspended and the share register closed for more than 60 days in any period of 12 months.
TRANSMISSION OF REGISTERED SHARES
20. The executor or administrator of a deceased member, the guardian of an incompetent member or the trustee of a bankrupt member shall be the only person recognized by the Company as having any title to his share but they shall not be entitled to exercise any rights as a member of the Company until they have proceeded as set forth in the next following two Articles.
21. Any person becoming entitled by operation of law or otherwise to a share or shares in consequence of the death, incompetence or bankruptcy of any member may be registered as a member upon such evidence being produced as may reasonably be required by the directors. An application by any such person to be registered as a member shall for all purposes be deemed to be a transfer of shares of the deceased, incompetent or bankrupt member and the directors shall treat it as such.
22. Any person who has become entitled to a share or shares in consequence of the death, incompetence or bankruptcy of any member may, instead of being registered himself, request in writing that some person to be named by him be registered as the transferee of
- 5 -
such share or shares and such request shall likewise be treated as if it were a transfer.
23. What amounts to incompetence on the part of a person is a matter to be determined by the court having regard to all the relevant evidence and the circumstances of the case.
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
24. The Company may by a resolution of directors amend the Memorandum to increase or reduce its authorised capital and in connection therewith the Company may in respect of any unissued shares increase or reduce the number of such shares, or effect any combination of the foregoing.
25. The Company may amend the Memorandum to
(a) | divide the shares, including issued shares of a class or series into a larger number of shares of the same class or series; or |
(b) | combine the shares, including issued shares, of a class or series into a smaller number of shares of the same class or series. |
26. The capital of the Company may by a resolution of directors be increased by transferring an amount of the surplus of the Company to capital, and, subject to the provisions of Articles 28 and 29 the capital of the Company may be reduced by transferring an amount of the capital of the Company to surplus.
27. No reduction of capital shall be effected that reduces the capital of the Company to an amount that immediately after the reduction is less than the aggregate of the amounts designated as capital of all outstanding shares without par value and all shares without par value held by the Company as treasury shares that are entitled to a preference, if any, in the assets of the Company upon liquidation of the Company.
28. No reduction of capital shall be effected unless the directors determine that immediately after the reduction the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and that the realizable assets of the Company will not be less than its total liabilities, other than deferred taxes, as shown in the books of the Company and its remaining capital, and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
29. Where the Company reduces its capital under Article 25 the Company may
(a) | return to its members any amount received by the Company upon the issue of any of its shares; |
(b) | purchase, redeem or otherwise acquire its shares out of capital; or |
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(c) | cancel any capital that is lost or not represented by assets having a realizable value. |
BORROWING POWERS
30. The Directors may from time to time, at their discretion, raise or borrow or secure the payment of any sum or sums of money for the purposes of the Company.
31. The Directors may raise or secure the payment or repayment of such money in such manner and upon such terms and conditions in all respects as they think fit and in particular by the issue of bonds, mortgages, debentures or debenture stock perpetual or otherwise, notes or other obligations of the Company charged upon all or any part of the property of the Company (both present and future).
32. Debentures, debenture stock and other securities may be made assignable, free from any equities, between the Company and the person to whom the same may be issued.
MEETINGS AND CONSENTS OF MEMBERS
33. The directors of the Company may convene meetings of the members of the Company at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors consider necessary or desirable.
34. Upon the written request of members holding 50 percent or more of the outstanding voting shares in the Company the directors shall convene a meeting of members.
35. The directors shall give not less than 7 days notice of meetings of members to those persons whose names on the date the notice is given appear as members in the share register of the Company.
36. A meeting of members held in contravention of the requirement in Article 35 is valid
(a) | if members holding greater than 50 percent of the total number of shares entitled to vote on all matters to be considered at the meeting, or 90 percent of the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with not less than a 90 percent majority of the remaining votes, have agreed to shorter notice of the meeting, or |
(b) | if all members holding shares entitled to vote on all or any matters to be considered at the meeting have waived notice of the meeting and for this purpose presence at the meeting shall be deemed to constitute waiver. |
37. The inadvertent failure of the directors to give notice of a meeting to a member, or the fact that a member has not received notice, does not invalidate the meeting.
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38. A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
39. The instrument appointing a proxy shall be produced at the place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
40. An instrument appointing a proxy shall be in substantially the following form or such other form as the Chairman of the meeting shall accept as properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above Company with shares HEREBY APPOINT of or failing him of to be my/our proxy to vote for me/us at the meeting of members to be held on the day of and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of |
||
|
| |
Member |
41. The following shall apply in respect of joint ownership of shares:
(a) | if two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may speak as a member; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners, and |
(c) | if two or more of the joint owners are present in person or by proxy they must vote as one. |
42. A member shall be deemed to be present at a meeting of members if he participates by telephone or other electronic means and all members participating in the meeting are able to hear each other and recognise each others voice. A resolution in writing, in one or more parts, signed by all the members for the time being shall be as valid and effectual as if it had been passed at a General Meeting duly called and constituted.
43. A meeting of members is duly constituted if, at the commencement of the meeting, there are present in person or by proxy greater than 50 percent of the votes of the shares or class or series of shares entitled to vote on resolutions of members to be considered at the meeting. If a quorum be present, notwithstanding the fact that such quorum may be represented by only one person then such person may resolve any matter and a
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certificate signed by such person accompanied where such person be a proxy by a copy of the proxy form shall constitute a valid resolution of members.
44. If within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the next business day at the same time and place or to such other time and place as the directors may determine, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the resolutions to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
45. At every meeting of members, the President shall preside as Chairman of the meeting. If there is no President or if the President is not present at the meeting, the members present shall choose some one of their number to be the Chairman. If the members are unable to choose a chairman for any reason, then the person representing the greatest number of voting shares present in person or by prescribed form of proxy at the meeting shall preside as chairman failing which the oldest individual member or representative of a member present shall take the chair.
46. The Chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, 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.
47. At any meeting of the members the Chairman shall be responsible for deciding in such manner as he shall consider appropriate whether any resolution has been carried or not and the result of his decision shall be announced to the meeting and recorded in the minutes thereof. If the Chairman shall have any doubt as to the outcome of any resolution put to vote, he shall cause a poll to be taken of all votes cast upon such resolution, but if the Chairman shall fail to take a poll then any member present in person or by proxy who disputes the announcement by the Chairman of the result of any vote may immediately following such announcement demand that a poll be taken and the Chairman shall thereupon cause a poll to be taken. If a poll is taken at any meeting, the result thereof shall be duly recorded in the minutes of that meeting by the Chairman.
48. Any person other than an individual shall be regarded as one member and subject to Article 50 the right of any individual to speak for or represent such member shall be determined by the law of the jurisdiction where, and by the documents by which, the person is constituted or derives its existence. In case of doubt, the directors may in good faith seek legal advice from any qualified person and unless and until a court of competent jurisdiction shall otherwise rule the directors may rely and act upon such advice without incurring any liability to any member.
49. Any person other than an individual which is a member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of
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members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the person which he represents as that person could exercise if it were an individual member of the Company.
50. The chairman of any meeting at which a vote is cast by proxy or on behalf of any person other than an individual may call for a notarially certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes cast by such proxy or on behalf of such person shall be disregarded.
51. Directors of the Company may attend and speak at any meeting of members of the Company and at any separate meeting of the holders of any class or series of shares in the Company.
DIRECTORS
52. The first directors of the Company shall be elected by the subscribers to the Memorandum; and thereafter, subject to Article 58, the directors shall be elected by the members for such term as the members determine.
53. The minimum number of directors shall be one and the maximum number shall be seven.
54. Each director shall hold office until his successor takes office or until his earlier death, resignation or removal.
55. A director may be removed from office, with or without cause, by a resolution of members.
56. A director may resign his office by giving written notice of his resignation to the Company and the resignation shall have effect from the date the notice is received by the Company or from such later date as may be specified in the notice.
57. The Directors shall have power at any time, and from time to time, to appoint any other qualified person as a director, either to fill a casual vacancy or as an addition to the Board, so that the total number of Directors shall not at any time exceed the maximum number fixed by these Articles.
58. With the prior or subsequent approval by a resolution of members, the directors may, by a resolution of directors, fix the emoluments of directors with respect to services to be rendered in any capacity to the Company.
59. A director shall not require a share qualification, and may be an individual or a company.
POWERS OF DIRECTORS
60. The business and affairs of the Company shall be managed by the directors who may pay all expenses incurred preliminary to and in connection with the formation and registration of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or these
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Articles required to be exercised by the members of the Company, subject to any delegation of such powers as may be authorised by these Articles and to such requirements as may be prescribed by a resolution of members; but no requirement made by a resolution of members shall prevail if it be inconsistent with these Articles nor shall such requirement invalidate any prior act of the directors which would have been valid if such requirement had not been made.
61. The directors may, by a resolution of directors, appoint any person, including a person who is a director, to be an officer or agent of the Company.
62. Every officer or agent of the Company has such powers and authority of the directors, including the power and authority to affix the Seal, as are set forth in these Articles or in the resolution of directors appointing the officer or agent, except that no officer or agent has any power or authority with respect to fixing the emoluments of directors.
63. Any director which is a body corporate may appoint any person its duly authorised representative for the purpose of representing it at meetings of the Board of Directors or with respect to unanimous written consents.
64. The continuing directors may act notwithstanding any vacancy in their body, save that if their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum for a meeting of directors, the continuing directors or director may act only for the purpose of appointing directors to fill any vacancy that has arisen or summoning a meeting of members.
65. All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company, shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by resolution of directors.
PROCEEDINGS OF DIRECTORS
66. The directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors may determine to be necessary or desirable.
67. A director shall be deemed to be present at a meeting of directors if he participates by telephone or other electronic means and all directors participating in the meeting are able to hear each other and recognise each others voice. A resolution in writing, in one or more parts, Signed by all the Directors, shall be as valid and effectual as if it had been passed at a Meeting of the Directors duly called and constituted.
68. A director shall be given not less than 7 days notice of meetings of directors, but a meeting of directors held without 7 days notice having been given to all directors shall be valid if all the directors entitled to vote at the meeting who do not attend, waive notice of the meeting. The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, does not invalidate the meeting.
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69. A meeting of directors is duly constituted for all purposes if at the commencement of the meeting there are present in person or by alternate two directors.
70. If the Company shall have only one director the provisions herein contained for meetings of the directors shall not apply but such sole director shall have full power to represent and act for the Company in all matters as are not by the Act or the Memorandum or these Articles required to be exercised by the members of the Company and in lieu of minutes of a meeting shall record in writing and sign a note or memorandum of all matters requiring a resolution of directors. Such a note or memorandum shall constitute sufficient evidence of such resolution for all purposes.
71. At every meeting of the directors the President shall preside as chairman of the meeting. If there is no President or if the President is not present at the meeting the Vice President shall preside. If there is no Vice President or if the Vice President is not present at the meeting the directors present shall choose some one of their number to be chairman of the meeting.
72. The directors shall cause the following corporate records to be kept:
(a) | minutes of all meetings of directors, members, committees of directors, committees of officers and committees of members; |
(b) | copies of all resolutions consented to by directors, members, committees of directors, committees of officers and committees of members; and |
(c) | such other accounts and records as the directors by resolution of directors consider necessary or desirable in order to reflect the financial position of the Company. |
73. The books, records and minutes shall be kept at the registered office of the Company.
74. The directors may, by a resolution of directors, designate one or more committees, each consisting of one or more directors.
75. The Directors may delegate any of their powers to committees each consisting of two or more members of their body as they think fit. Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may from time to time be made or imposed upon it by the Directors.
76. The meetings and proceedings of each committee of directors consisting of 2 or more directors shall be governed mutatis mutandis by the provisions of these Articles regulating the proceedings of directors so far as the same are not superseded by any provisions in the resolution establishing the committee.
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ALTERNATE DIRECTORS
77. Any Director may at any time appoint any person to be an alternate Director of the Company and may at any time remove any alternate Director so appointed by him. An alternate Director so appointed shall not be entitled to receive any remuneration from the Company but shall otherwise be subject to the provisions of these presents with regard to Directors. An alternate Director shall (subject to his giving to the Company an address at which notices may be served upon him) be entitled to receive notices of all meetings of the Board and to attend and vote as a Director at any such meeting at which the Director appointing him is not personally present and generally to perform all the functions of his appointor as a Director in the absence of such appointor. An alternate Director shall ipso facto cease to be an alternate Director if his appointor ceases for any reason to be a Director. All appointments and removals of alternate Directors shall be effected in writing under the hand of the Director making or revoking such appointment and lodged with the Secretary at the companys office.
MANAGING DIRECTOR
78. The members in general meeting or the Directors may from time to time appoint one or more of the Directors to be a Managing Director or Managing Directors of the Company either for a fixed term or without any limitation as to the period for which he or they is or are to hold such office and may from time to time remove or dismiss him or them from office and appoint another or others in his or their place or places.
79. The remuneration of a Managing Director shall from time to time be fixed by the Directors and may be by way of salary or commission or participation in profits or by any or all of those modes.
80. The Directors may from time to time entrust to and confer upon a Managing Director for the time being such of the powers exercisable under these presents by the Directors as they think fit and may confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they think expedient; and they may confer such powers either collaterally with, or to the exclusion of, and in substitution for all or any of the powers of the Directors in that behalf; and may from time to time revoke, withdraw or vary all or any of such powers.
OFFICERS
81. The Company may by resolution of directors appoint officers of the Company at such times as shall be considered necessary or expedient. Such officers may consist of a President and one or more Vice-Presidents, Secretary and one or more Assistant Secretaries and Treasurer and such other officers as may from time to time be deemed desirable. Any number of offices may be held by the same person.
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82. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by resolution of directors or resolution of members, but in the absence of any specific allocation of duties it shall be the responsibility of the President to preside at meetings of directors and members and to manage the day to day affairs of the Company, the Vice Presidents to act in order of seniority in the absence of the President but otherwise to perform such duties as may be delegated to them by the President, the Secretary to maintain the share register, minutes books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the Treasurer to be responsible for the financial affairs of the Company.
83. The emoluments of all officers shall be fixed by resolution of directors.
84. The officers of the Company shall hold office until their successors are duly elected and qualified, but any officer elected or appointed by the directors may be removed at any time, with or without cause, by resolution of directors. Any vacancy occurring in any office of the Company may be filled by resolution of directors.
CONFLICT OF INTERESTS
85. If the requirements of Articles 87 or 88 are satisfied, no agreement or transaction between the Company and one or more of its directors or liquidators, or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related, including as a director or liquidator of that other person, is void or voidable for this reason only or by reason only that the director or liquidator is present at the meeting of directors or liquidators or at the meeting of the committee of directors or liquidators that approves the agreement or transaction or that the vote or consent of the director or liquidator is counted for that purpose.
86. An agreement or transaction referred to in Article 86 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the other directors or liquidators; and |
(b) | the agreement or transaction is approved or ratified by a resolution of directors or liquidators that has been approved without counting the vote or consent of any interested director or liquidator or by the unanimous vote or consent of all disinterested directors or liquidators if the votes or consents of all disinterested directors or liquidators are |
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insufficient to approve a resolution of directors or liquidators. |
87. An agreement or transaction referred to in Article 86 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the members entitled to vote at a meeting of members; and |
(b) | the agreement or transaction is approved or ratified by a resolution of members. |
88. A director or liquidator who has an interest in any particular business to be considered at a meeting of directors, liquidators or members may be counted for purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
89. Subject to Article 91 the Company may indemnify against all expenses including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who
(a) | is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, an officer or liquidator of the Company; or |
(b) | is or was, at the request of the Company, serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise. |
90. Article 90 only applies to a person referred to in that Article if the person acted honestly and in good faith with a view to the best interests of the Company and, in the case of criminal proceedings, the person had no reasonable cause to believe that his conduct was unlawful.
91. The decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests of the Company and as to whether the person had no reasonable cause to believe that his conduct was unlawful, is in the absence of fraud, sufficient for the purposes of these Articles, unless a question of law is involved.
92. The termination of any proceedings by any judgement, order, settlement, convictions or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not
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act honestly and in good faith and with a view to the best interests of the Company or that the person had reasonable cause to believe that his conduct was unlawful.
93. If a person referred to in Article 90 has been successful in defence of any proceedings referred to in that Article the person is entitled to be indemnified against all expenses, including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred by the person in connection with the proceedings.
94. The Company may purchase and maintain insurance in relation to any person who is or was a director, an officer or a liquidator of the Company, or who at the request of the Company is or was serving as a director, an officer or a liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise, against any liability asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had the power to indemnify the person against the liability under Article 90.
SEAL
95. The directors shall provide for the safe custody of the Seal. The Seal when affixed to any written instrument shall be witnessed by a director or any other person so authorised from time to time by resolution of directors. The directors may provide for a facsimile of the Seal and of the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been signed as hereinbefore described. The Company may by resolution of directors authorise the adoption and use of one or more corporate seals for use outside the Commonwealth of the Bahamas.
DIVIDENDS
96. The Company may by a resolution of directors declare and pay dividends in money, shares, or other property but dividends shall only be declared and paid out of surplus. In the event that dividends are paid in specie the directors shall have responsibility for establishing and recording in the resolution of directors authorising the dividends, a fair and proper value for the assets to be so distributed.
97. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the Company.
98. The directors may, before declaring any dividend, set aside out of the profits of the Company such sum as they think proper as a reserve fund, and may invest the sum so set apart as a reserve fund upon such securities as they may select.
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99. No dividend shall be declared and paid unless the directors determine that immediately after the payment of the dividend the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in its books of account, and its capital. In the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
100. Notice of any dividend that may have been declared shall be given to each member in manner hereinafter mentioned and all dividends unclaimed for 3 years after having been declared may be forfeited by resolution of directors for the benefit of the Company.
101. No dividend shall bear interest as against the Company and no dividend shall be paid on shares described in Article 14.
102. A share issued as a dividend by the Company shall be treated for all purposes as having been issued for money equal to the surplus that is transferred to capital upon the issue of the share.
103. In the case of a dividend of authorised but unissued shares without par value, the amount designated by the directors shall be transferred from surplus to capital at the time of the distribution, except that the directors must designate as capital an amount that is at least equal to the amount that the shares are entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
104. A division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class or series does not constitute a dividend of shares.
RESERVES
105. The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve fund to meet contingencies or for equalising dividends or for special dividends or bonuses or the redemption of preference shares or for repairing, improving and maintaining any of the property of the Company and for such other purposes as the Directors shall in their absolute discretion think conducive to the interests of the Company and may invest the several sums so set aside upon such investments as they may think fit and from time to time deal with and vary such investments and dispose of all or any part thereof for the benefit of the Company and may divide the reserve fund into such special funds as they think fit and employ the reserve fund or any part thereof in the business of the Company and that without being bound to keep the same separate from the other assets.
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NOTICES
106. Any notice, information or written statement to be given by the Company to members must be served by mail addressed to each member at the address shown in the share register.
107. Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company.
108. Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was mailed in such time as to admit to its being delivered in the normal course of delivery within the period prescribed for service and was correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
109. The directors may establish and maintain or procure the establishment and maintenance of any non-contributors or contributory pension or superannuation funds for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments to any persons who are or were at any time in the employment or service of the Company or any company which is a subsidiary of the Company or is allied to or associated with the Company or with any such subsidiary, or who are or were at any time as aforesaid or who hold or held any salaried employment or office in the Company or such other company, or any persons in whose welfare the Company or any such other company as aforesaid is or has been at any time interested, and to the wives, widows, families and dependents of any such person and may make payments for or towards the insurance of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in conjunction with any such other company as aforesaid. Subject always to the proposal being approved by resolution of members, a director holding any such employment, or office shall be entitled to participate in and retain for his own benefit any such donation, gratuity, pension allowance or emolument.
ARBITRATION
110. Whenever any difference arises between the Company on the one hand and any of the members or their executors administrators or assigns on the other hand, touching the true intent and construction or the incidence or consequences of these Articles .or of the Act, touching anything done or executed, omitted or suffered in pursuance of the Act or touching any breach or alleged breach or otherwise relating to the premises or to these Articles, or to any Act effecting the Company or to any of the affairs of the Company such difference shall, unless the parties agree to refer the same to a single arbitrator, be referred to two arbitrators one to be chosen by each of the parties to the difference and the arbitrators shall before entering on the reference appoint an umpire.
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111. If either party to the reference makes default in appointing an arbitrator either originally or by way of substitution (in the event that an appointed arbitrator shall die, be incapable of acting or refuse to act) for 10 days after the other party has given him notice to appoint the same, such other party may appoint an arbitrator to act in the place of the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
112. The Company may voluntarily commence to wind up and dissolve by a resolution of members but if the Company has never issued shares it may voluntarily commence to wind up and dissolve by resolution of directors.
CONTINUATION
113. The Company may by resolution of members or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the Commonwealth of the Bahamas in the manner provided under those laws.
WE, McKINNEY NOMINEES LIMITED and HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas for the purpose of incorporating an International Business Company under the laws of the Commonwealth of The Bahamas, hereby subscribe our nmes to these Articles of Association the 24th day of November, 1994 in the presence of:
Subscribers
PAUL D. KNOWLES (sgd.) |
M. A. TAYLOR (sgd.) |
|||||
Paul D. Knowles | M. A. Taylor | |||||
Vice-President | Secretary |
McKINNEY NOMINEES LIMITED
PAUL D. KNOWLES (sgd.) |
M. A. TAYLOR (sgd.) |
|||||
Paul D. Knowles | M. A. Taylor | |||||
Vice-President | Secretary |
HUGHES COMPANY LIMITED
Witness: |
| |||
M. M. KNOWLES (sgd.) |
||||
|
||||
M. M. Knowles Mareva House 4 George Street Nassau, Bahamas |
||||
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COMMONWEALTH OF THE BAHAMAS
New Providence.
Dated the 24th day of November, 1994.
ARTICLES OF ASSOCIATION
OF
SHERRITT INTERNATIONAL (BAHAMAS) INC.
McKinney, Bancroft & Hughes
Attorneys-at-Law
Chambers
Nassau, Bahamas
Exhibit T3A.17
FORM 3
11308 |
||||||||
Company No. |
COMPANIES ACT OF BARBADOS
CERTIFICATE OF INCORPORATION
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
||||
Name of Company |
I hereby certify that the above-mentioned Company, the Articles of Incorporation of which are attached, was incorporated under the Companies Act of Barbados.
| ||||
#08847 $750.00 95/10/31 |
FORM 1
COMPANIES ACT OF BARBADOS
(Section 5)
ARTICLES OF INCORPORATION
| ||||
Name of Company |
Company No: 11308 |
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
2. |
The classes and any maximum number of shares that the Company is authorized to issue |
The share capital of the Company shall consist of an unlimited number of shares of one class without nominal or par value to be designated Common shares.
3. |
Restriction if any on share transfers |
The annexed Schedule A is incorporated in this form.
4. |
Number (or minimum and maximum number) of Directors |
There shall be a minimum of 2 and a maximum of 10 Directors.
5. |
Restrictions if any on business the Company may carry on |
The Company shall not engage in any business other than international business as defined in the International Business Companies Act, 1991-24 of the laws of Barbados.
6. |
Other provisions if any |
The annexed Schedule B is incorporated in this form.
7. Incorporators |
Date October 31, 1995 |
|||
Names |
Address |
Signature | ||
Theodore David Gittens |
The Rock, St. Peter, Barbados. |
/s/ Theodore David Gittens | ||
For Ministry use only Company No. 11308 |
Filed 95-10-31 |
THE COMPANIES ACT OF BARBADOS (Section 5)
SCHEDULE TO
ARTICLES OF INCORPORATION |
| ||||
1. Name of Company: |
Company No: 11308 |
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
SCHEDULE A
3. |
Restrictions if any on share transfers: |
The right to transfer shares of the Company shall be restricted in that no shareholder shall be entitled to transfer any share or shares of the Company without the previous express sanction of the holders of more than 50% of the Common shares of the Company for the time being outstanding expressed by a resolution passed at a meeting of the shareholders or by an instrument or instruments in writing signed by the holders of more than 50% of such shares.
SCHEDULE B
6. |
Other provisions if any: |
(a) |
No more than one-tenth of the sums that on a liquidation of the Company would, whether directly or indirectly, be recoverable by or for the benefit of persons resident in the Caricom region who are holders of its share or loan capital and who do not carry on an international business. |
(b) |
No more than one-tenth of the assets that on a liquidation of the Company, would be available, after the payment of its creditors, whether directly or indirectly, for distribution to or for the benefit of individuals resident in the Caricom region. |
(c) |
No more than one-tenth |
(i) |
of the interest payable on any loans and loan capital of the Company, |
(ii) |
of the dividends payable on any preference shares of the Company, and |
(iii) |
of the dividends payable on any ordinary shares of the Company, |
would be paid directly or indirectly by or for the benefit of individuals resident in the Caricom region.
(d) |
An invitation to the public to subscribe for shares or security interest is prohibited. |
(e) |
In the case of an equality of votes on any question submitted to any meeting of the shareholders of the Company, the Chairman of the meeting shall on a ballot have a casting vote in addition to any votes to which he may otherwise be entitled. |
7. Incorporators |
Date October 31, 1995 |
|||||
Name |
Address: |
Signature | ||||
Theodore David Gittens |
The Rock, St. Peter, Barbados. |
/s/ Theodore David Gittens |
REGISTERED |
CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE |
FORM 9
|
|
|||
COMPANIES ACT OF BARBADOS
(Sections 66 & 74)
NOTICE OF DIRECTORS
OR
NOTICE OF CHANGE OF DIRECTORS |
1. Name of Company
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. Company No.
11308 | |||
3. Notice is given that on the 1st day of March 1996, the following person(s) was/were appointed director(s): |
Name |
Mailing Address |
Occupation | ||
Frederic J. Wellhauser |
70 Lonsdale Road, Toronto, Ontario M4V 1W5, Canada. |
Company Executive |
4. |
Notice is given that on the 1st day of March 1996, the following person(s) ceased to hold office as director(s): |
Name |
Mailing Address | |||
Michael G. McKibbin | 555 Southborough Drive, West Vancouver, British Columbia, Canada. | |||
Douglas H. Murray | 36 Haythorne Crescent, Sherwood Park, Alberta, Canada. |
5. |
The directors of the company as of this date are: |
Name |
Mailing Address |
Occupation | ||
Frederic J. Wellhauser |
70 Lonsdale Road, Toronto, Ontario M4V 1W5, Canada. |
Company Executive | ||
Samuel W. Ingram |
824 Emerald Lake Place S.E., Calgary, Alberta T2J 2K1, Canada. |
Company Executive | ||
6. Date
November 18th, 1999 |
Signature
/s/ Samuel W. Ingram
Samuel W. Ingram |
Title
Director |
FORM 9
|
|
|||
COMPANIES ACT OF BARBADOS
(Sections 66 & 74)
NOTICE OF DIRECTORS
OR
NOTICE OF CHANGE OF DIRECTORS |
1. Name of Company
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. Company No.
11308 | |||
3. Notice is given that on the 23rd day of November 1995, the following person(s) was/were appointed director(s): |
Name |
Mailing Address |
Occupation | ||
Michael G. McKibbin | 555 Southborough Drive, West Vancouver, British Columbia V7S 1M5, Canada. |
Company Executive | ||
Samuel W. Ingram | 824 Emerald Lake Place S.E., Calgary, Alberta T2J 2K1, Canada. |
Company Executive | ||
Douglas H. Murray | 36 Haythorne Crescent, Sherwood Park, Alberta T8A 3Z8, Canada. |
Company Executive |
4. |
Notice is given that on the 23rd day of November 1995, the following person(s) ceased to hold office as director(s): |
Name |
Mailing Address | |||
Theodore David Gittens | The Rock, St. Peter, Barbados. | |||
Peter R.P. Evelyn | Hothersal House, St. John, Barbados. |
5. |
The directors of the company as of this date are: |
Name |
Mailing Address |
Occupation | ||
Michael G. McKibbin | 555 Southborough Drive, West Vancouver, British Columbia V7S 1M5, Canada. |
Company Executive | ||
Samuel W. Ingram | 824 Emerald Lake Place S.E., Calgary, Alberta T2J 2K1, Canada. |
Company Executive | ||
Douglas H. Murray | 36 Haythorne Crescent, Sherwood Park, Alberta T8A 3Z8, Canada. |
Company Executive | ||
6. Date
November 18th, 1999 |
Signature
/s/ Samuel W. Ingram
Samuel W. Ingram |
Title
Director |
|
||||
COMPANIES ACT OF BARBADOS
(Sections 66 & 74)
NOTICE OF DIRECTORS
OR
NOTICE OF CHANGE OF DIRECTORS |
FORM 9 |
1. Name of Company
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. Company No. 11308 | |||
3. Notice is given that on the day of 19 , the following person(s) was/were appointed director(s): Not applicable. |
Name |
Mailing Address |
Occupation | ||
4. |
Notice is given that on the day of 19 , the following person(s) ceased to hold office as director(s): Not applicable. |
Name |
Mailing Address | |||
5. |
The directors of the company as of this date are: |
Name |
Mailing Address |
Occupation | ||
Theodore David Gittens | The Rock, St. Peter, Barbados. |
Attorney-at-Law | ||
Peter R.P. Evelyn |
Southlite, 114 Atlantic Shores, Christ Church, Barbados. |
Attorney-at-Law |
||
6. Date
October 31, 1995 |
Signature
/s/ Theodore David Gittens
Theodore David Gittens |
Title
Incorporator |
REGISTERED |
CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE |
|
FORM 4 | |||
COMPANIES ACT OF BARBADOS
(Section 169(1) and (2))
NOTICE OF ADDRESS OR NOTICE OF CHANGE OF ADDRESS OF REGISTERED OFFICE |
1. Name of Company |
2. Company No. 11308 | |||||
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
3. Address of Registered Office
Heritage House, Pinfold Street, Bridgetown, Barbados.
4. Mailing Address
Same as 3 above.
5. If change of address, give previous address of Registered Office.
Not applicable. | ||||||
6. |
Date |
Signature |
Title | |||
October 31, 1995 |
/s/ Theodore David Gittens
Theodore David Gittens |
Incorporator | ||||
For Ministry use only |
REGISTERED | CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE | ||||
Company No. 11308 |
Filed 95-10-31 |
|
95/10/27 $ 30 # 08780 |
FORM 33
COMPANIES ACT OF BARBADOS
REQUEST FOR NAME SEARCH AND NAME RESERVATION
1. Name, Address and telephone number of person making request: Mr. Peter Evelyn Evelyn, Gittens & Farmer Heritage House Pinfold Street Bridgetown |
Telephone No. 426-5354 |
2. Proposed name or names in order of preference:
(a) SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED (b)
(c)
3. Main types of business the company carries on or proposes to carry on:
(a) International business property investment
(b) Dealing in Oil & Gas Investments in Cuba
(c)
4. Derivation of Name: Will be a subsidiary of Sherritt Inc. of Canada From the type of Business to be carried on
5. First available name to be reserved: Yes ☒ No ☐
6. Name is for: Incorporation
7. If for a change of name, state present name of company:
Not applicable.
|
8. If for an amalgamation, state names of amalgamating companies:
Not applicable.
|
Exhibit T3A.18
INTERNATIONAL BUSINESS COMPANIES ACT (No. 45 of 2000 Sections 83, 84, 85, 86 & 87) NO. 155501 (B)SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED EURIKA S. CHARLTON, Acting Assistant Registrar General of the Commonwealth of The Bahamas, do hereby certify, pursuant to the International Business Companies Act, (No. 45 of 2000) that all the requirements of the said Act in respect of continuation have been satisfied, and that SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED Is deemed to be continued in the Commonwealth of The Bahamas as an International Business Company this 29th day of October, 2008, A.D. Given under my hand and seal at Nassau In the Commonwealth of The Bahamas Acting Assistant Registrar General
The International Business Companies Act
Company Limited by Shares
ARTICLES OF CONTINUATION
OF
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
(A) The name of the Company is SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED. The name under which the Company is being continued is SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED.
(B) The jurisdiction under which the Company is incorporated is Barbados.
(C) The Company was incorporated on the 31st day of October 1995.
(D) The registered office of the Company is situate at the offices of M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas.
(E) The registered agent of the Company will be M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas.
(F) The Articles of Incorporation of the Company be amended by deleting clause 5 titled Restrictions if any on business the Company may carry on and inserting the following:
The object or purpose for which the Company is established is to engage in any act or activity that is not prohibited under any law for the time being in force in The Commonwealth of the Bahamas.
and by inserting in clause 6 titled Other provisions if any the following:
1. | In the absence of appropriate authorisation the Company may not: |
(a) | carry on banking or trust business as defined by the Banks and Trust Companies Regulation Act 2000; |
(b) | carry on business as an insurance or a reinsurance company; or |
(c) | carry on the business of providing corporate or financial services as defined by the Financial and Corporate Service Providers Act 2000. |
2. | The liability of the members is limited. |
3. | Shares in the Company shall be issued in the currency of the United States of America. |
4. | The authorized capital of the Company is $500,000,000.00 comprising of 500,000,000 shares of no par value with one vote for each share. |
5. | The designations, powers, preferences, rights, qualifications, limitations and restrictions of each class and series of shares that the company is authorised to issue shall be fixed by resolution of directors, but the directors shall not allocate different rights as to voting, dividends, redemption or distributions on liquidation unless the Articles of Incorporation shall have been amended to create separate classes of shares and all the aforesaid rights as to voting, dividends, redemption and distributions shall be identified in each separate class. |
6. | The shares of the company are to be issued as registered shares. |
7. | The Registered Shares in the Company may be transferred subject to the prior or subsequent approval of the Company as evidenced by a resolution of directors or by a resolution of members. |
8. | The Company may amend its Articles of Incorporation by a resolution of members or by a resolution of directors. |
(G) The By-Laws of the Company are to be amended by deleting all the provisions contained therein and the provisions set out below are to be effective on registration of these Articles of Continuation:
Preliminary
1. In these Articles, if not inconsistent with the subject or context, the words and expressions standing in the first column of the following table shall bear the meanings set opposite them respectively in the second column thereof.
Words |
Meanings | |
capital | The sum of the aggregate par value of all outstanding shares with par value of the Company and shares with par value held by the Company as treasury shares plus |
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register of members | The share register. | |
resolution of directors | (a) A Resolution approved at a duly constituted meeting of directors of the Company or of a committee of directors of the Company by the affirmative vote of a simple majority of the directors present who voted and did not abstain where the meeting was called on proper notice or, if on short notice, if those directors not present have waived notice; or | |
(b) a resolution consented to in writing by all directors or of all members of the committee, as the case may be. | ||
resolution of members | (a) A resolution approved at a duly constituted meeting of the members of the Company by the affirmative vote of | |
(i) a simple majority of the votes of the shares which were present at the meeting and entitled to vote thereon and were voted and not abstained, or | ||
(ii) a simple majority of the votes of each class or series of shares which were present at the meeting and entitled to vote thereon as a class or series and were voted and not abstained and of a simple majority of the votes of the remaining shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or | ||
(b) a resolution consented to in writing by | ||
(i) all of the votes of shares entitled to vote thereon, or | ||
(ii) all of the votes of each class or series of shares entitled to vote thereon as a class or series and of all of the votes of the remaining shares entitled to vote thereon; | ||
securities | Shares and debt obligations of every kind, and options, warrants and rights to acquire shares, or debt obligations. | |
surplus | The excess, if any, at the time of the determination of the total assets of the Company over the aggregate of its total liabilities, as shown in its books of account, plus its issued and outstanding share capital and surplus may be computed having regard to the net unrealized appreciation of assets of the company in accordance with section 36 of the Act. | |
the Act | The International Business Companies Act 2000 (No. 45 of 2000). | |
the Memorandum | The Memorandum of Association of the Company as originally framed or as from time to time amended. |
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the Seal | Any seal which has been duly adopted as the Common Seal of the Company. | |
these Articles | These Articles of Association as originally framed or as from time to time amended. | |
treasury shares | Shares in the Company that were previously issued but were repurchased, redeemed or otherwise acquired by the Company and not cancelled. |
2. Written or any term of like import includes words typewritten, printed, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in a visible form, including telex, telegram, cable or other form of writing produced by electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or neuter gender is used in these Articles, it shall equally, where the context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be construed as a reference to voting by members holding the shares except that it is the votes allocated to the shares that shall be counted and not the number of members who actually voted and a reference to shares being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles, unless otherwise stated, is a reference to the currency in which shares in the Company shall be issued according to the provisions of the Memorandum.
SHARES, AUTHORISED CAPITAL AND CAPITAL
7. Every person whose name is entered as a member in the share register shall, without payment, be entitled to a certificate either (a) under the signatures of two directors or officers or (b) signed by one director or one officer of the Company and under the common Seal of the Company specifying the share or shares held and the par value where applicable thereto and the signatures of the director or officer and the Seal may be facsimiles, provided that in respect of a share, or shares, held jointly by several persons the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all.
8. Any member receiving a share certificate for shares shall indemnify and hold the Company and its directors and officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession thereof. If a share certificate for shares is worn out or lost it may be renewed on production of the worn out certificate or on satisfactory proof of its loss together with such indemnity as may be reasonably required by the directors.
9. If several persons are registered as joint holders of any shares, any one of such persons may give an effectual receipt for any dividend payable in respect of such shares.
10. Subject to the provisions of these Articles and any resolution of members the unissued shares of the
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Company shall be at the disposal of the directors who may without prejudice to any rights previously conferred on the holders of any existing shares or class or series of shares, offer, allot, grant options over or otherwise dispose of the shares to such persons, at such times and upon such terms and conditions as the Company may by resolution of directors determine.
11. Shares in the Company shall be issued for money, services rendered, personal property (including other shares, debt obligations or other securities in the company), any estate in real property, a promissory note or other binding obligation to contribute money or property or any combination of the foregoing as shall be determined by a resolution of directors.
12. Shares in the Company may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine, except that in the case of shares with par value, the amount shall not be less than the par value, and in the absence of fraud the decision of the directors as to the value of the consideration received by the Company in respect of the issue is conclusive unless a question of law is involved. The consideration in respect of the shares constitutes capital to the extent of the par value and the excess constitutes surplus.
13. A share issued by the Company upon conversion of, or in exchange for, another share or a debt obligation or other security in the Company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the Company in respect of the other share, debt obligation or security.
14. Treasury shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with these Articles) as the Company may by resolution of directors determine.
15. The Company may issue fractions of a share and a fractional share shall have the same corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class or series of shares.
16. Upon the issue by the Company of a share with par value, the consideration in respect of the share constitutes capital to the extent of the par value and the excess constitutes surplus.
17. Upon the issue by the Company of a share without par value, the consideration in respect of the share constitutes capital to the extent designated by the directors and the excess constitutes surplus, except that the directors must designate as capital an amount of the consideration that is at least equal to the amount that the share is entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
18. The Company may purchase, redeem or otherwise acquire and hold its own shares but only out of surplus or in exchange for newly issued shares of equal value provided that no purchase redemption or acquisition which has the effect of reducing the capital of the Company shall be effected unless in compliance with Articles 37 and 38 but no purchase, redemption or other acquisition shall be made unless the directors determine that immediately after the purchase, redemption or other acquisition:
(a) | the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business; and |
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(b) | the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in the books of accounts; and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the company is conclusive unless a question of law is involved. |
19. A determination by the directors under the preceding Article is not required where shares are purchased, redeemed or otherwise acquired
(a) | pursuant to a right of a member to have his shares redeemed or to have his shares exchanged for money or other property of the Company; |
(b) | in exchange for newly issued shares in the Company; |
(c) | by virtue of the provisions of Section 80 of the Act; and |
(d) | pursuant to an order of the court. |
20. Shares that the Company purchases, redeems or otherwise acquires pursuant to Articles 18 or 19 may be cancelled or held as treasury shares unless the shares are purchased, redeemed or otherwise acquired out of capital pursuant to section 25 of the Act in which case they shall be cancelled. Upon the cancellation of a share, the amount included as capital of the Company with respect to that share shall be deducted from the capital of the Company.
21. Where shares in the Company are held by the Company as treasury shares or are held by another company of which the Company holds, directly or indirectly, shares having more than 50 percent of the votes in the election of directors of the other company, such shares of the Company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for any purpose except for purposes of determining the capital of the Company.
22. No invitation shall be issued to the public by the Company or the directors for the time being thereof to subscribe for any shares or debentures of the Company.
23. No notice of a trust, whether expressed, implied or constructive, shall be entered in the share register.
LIEN ON SHARES
24. The Company shall have a first and paramount lien on every share issued for a promissory note or for any other binding obligation to contribute money or property or any combination thereof to the Company, and the Company shall also have a first and paramount lien on every share standing registered in the name of a member, whether singly or jointly with any other person or persons, for all the debts and liabilities of such member or his estate to the Company, whether the same shall have been incurred before or after notice to the Company of any interest of any person other than such member, and whether the time for the payment or discharge of the same shall have actually arrived or not, and notwithstanding that the same are joint debts or
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liabilities of such member or his estate and any other person, whether a member of the Company or not. The Companys lien on a share shall extend to all dividends payable thereon. The directors may at any time either generally, or in any particular case, waive any lien that has arisen or declare any share to be wholly or in part exempt from the provisions of this Article.
25. In the absence of express provisions regarding sale in the promissory note or other binding obligation to contribute money or property, the Company may sell, in such manner as it may by resolution of directors determine, any share on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of twenty one days after a notice in writing, stating and demanding payment of the sum presently payable and giving notice of the intention to sell in default of such payment, has been served on the holder for the time being of the share.
26. The net proceeds of the sale by the Company of any shares on which it has a lien shall be applied in or towards payment or discharge of the binding obligation in respect of which the lien exists so far as the same is presently payable and any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon the share prior to the sale) be paid to the holder of the share immediately before such sale. For giving effect to any such sale the directors may authorise some person to transfer the share sold to the purchaser thereof. The purchaser shall be registered as the holder of the share and he shall not be bound to see to the application of the purchase money, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the sale.
TRANSFER OF SHARES
27. Subject to any limitations in the Memorandum, shares in the Company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, but in the absence of such written instrument of transfer the directors may accept such evidence of a transfer of shares as they consider appropriate. The Directors may decline to register any transfer of shares without assigning any reason therefore.
28. The Company shall not be required to treat a transferee of a registered share in the Company as a member until the transferees name has been entered in the share register.
29. Subject to the approval of the Directors, the Company must on the application of the transferor or transferee of a registered share in the Company enter in the share register the name of the transferee of the share save that the registration of transfers may be suspended and the share register closed at such times and for such periods as the Company may from time to time by resolution of Directors determine provided always that such registration shall not be suspended and the share register closed for more than 60 days in any period of 12 months.
TRANSMISSION OF SHARES
30. The executor or administrator of a deceased member, the guardian of an incompetent member or the trustee of a bankrupt member shall be the only person recognized by the Company as having any title to his share but they shall not be entitled to exercise any rights as a member of the Company until they have proceeded as set forth in the next following two Articles.
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31. Any person becoming entitled by operation of law or otherwise to a share or shares in consequence of the death, incompetence or bankruptcy of any member may be registered as a member upon such evidence being produced as may reasonably be required by the directors. An application by any such person to be registered as a member shall for all purposes be deemed to be a transfer of shares of the deceased, incompetent or bankrupt member and the directors shall treat it as such.
32. Any person who has become entitled to a share or shares in consequence of the death, incompetence or bankruptcy of any member may, instead of being registered himself, request in writing that some person to be named by him be registered as the transferee of such share or shares and such request shall likewise be treated as if it were a transfer.
33. What amounts to incompetence on the part of a person is a matter to be determined by the court having regard to all the relevant evidence and the circumstances of the case.
REDUCTION OR INCREASE IN CAPITAL OR AUTHORISED CAPITAL
34. The Company may by a resolution of directors amend the Memorandum to increase or reduce its authorised capital and in connection therewith the Company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any such shares or effect any combination of the foregoing.
35. The Company may amend the Memorandum to
(a) | divide the shares, including issued shares of a class or series into a larger number of shares of the same class or series; or |
(b) | combine the shares, including issued shares, of a class or series into a smaller number of shares of the same class or series, provided, however, that where shares are divided or combined under (a) or (b) of this Article, the aggregate par value of the new shares must be equal to the aggregate par value of the original shares. |
36. The capital of the Company may by a resolution of directors, be increased by transferring an amount of the surplus of the Company to capital and, subject to the provisions of Articles 37 and 38, the capital may by resolution of directors be reduced by:
(a) | returning to members any amount received by the Company upon the issue of any of its shares, the amount being surplus to the requirements of the Company, |
(b) | canceling any capital that is lost or not represented by assets having a realisable value or |
(c) | transferring capital to surplus for the purpose of purchasing, redeeming or otherwise acquiring shares that the directors have resolved to purchase, redeem or otherwise acquire. |
37. No reduction of capital shall be effected that reduces the capital of the Company to an amount that
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immediately after the reduction is less than the aggregate par value of all outstanding shares with par value and all shares with par value held by the Company as treasury shares and the aggregate of the amounts designated as capital of all outstanding shares without par value and all shares without par value held by the Company as treasury shares that are entitled to a preference, if any, in the assets of the Company upon liquidation of the Company.
38. No reduction of capital shall be effected unless the directors determine that immediately after the reduction the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and that the realizable assets of the Company will not be less than its total liabilities, other than deferred taxes, as shown in the books of the Company and its remaining capital, and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
BORROWING POWERS
39. The Directors may from time to time, at their discretion, raise or borrow or secure the payment of any sum or sums of money for the purposes of the Company.
40. The Directors may raise or secure the payment or repayment of such money in such manner and upon such terms and conditions in all respects as they think fit and in particular by the issue of bonds, mortgages, debentures or debenture stock perpetual or otherwise, notes or other obligations of the Company charged upon all or any part of the property of the Company (both present and future).
41. Debentures, debenture stock and other securities may be made assignable, free from any equities, between the Company and the person to whom the same may be issued.
MEETINGS AND CONSENTS OF MEMBERS
42. The directors of the Company may convene meetings of the members of the Company at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors consider necessary or desirable.
43. Upon the written request of members holding 50 percent or more of the outstanding voting shares in the Company the directors shall convene a meeting of members.
44. The directors shall give not less than 7 days notice of meetings of members to those persons whose names on the date the notice is given appear as members in the share register of the Company.
45. A meeting of members held in contravention of the requirement in Article 44 is valid.
(a) | if members holding not less than 90 percent of the total number of shares entitled to vote on all matters to be considered at the meeting, or 90 percent of the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with not less than a 90 percent majority of the remaining votes, have agreed to shorter notice of the meeting, or |
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(b) | if all members holding shares entitled to vote on all or any matters to be considered at the meeting have waived notice of the meeting and for this purpose presence at the meeting shall be deemed to constitute waiver. |
46. The inadvertent failure of the directors to give notice of a meeting to a member, or the fact that a member has not received notice, does not invalidate the meeting.
47. A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
48. The instrument appointing a proxy shall be produced at the place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
49. An instrument appointing a proxy shall be in substantially the following form or such other form as the Chairman of the meeting shall accept as properly evidencing the wishes of the member appointing the proxy.
Sherritt International (Cuba) Oil and Gas Limited
I/We being a member of the above Company with shares HEREBY APPOINT of or failing him of to be my/our proxy to vote for me/us at the meeting of members to be held on the day of and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of .
Member
50. The following shall apply in respect of joint ownership of shares:
(a) | if two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may speak as a member; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners, and |
(c) | if two or more of the joint owners are present in person or by proxy they must vote as one. |
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51. A member shall be deemed to be present at a meeting of members if he participates by telephone or other electronic means and all members participating in the meeting are able to hear each other and recognize each others voice and for this purpose participation constitutes prima facie proof of recognition.
52. A resolution in writing, in one or more parts, signed by all the members for the time being shall be as valid and effectual as if it had been passed at a General Meeting duly called and constituted.
53. A meeting of members is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 50 percent of the votes of the shares or class or series of shares entitled to vote on resolutions of members to be considered at the meeting. If a quorum be present, notwithstanding the fact that such quorum may be represented by only one person then such person may resolve any matter and a certificate signed by such person accompanied where such person be a proxy by a copy of the proxy form shall constitute a valid resolution of members.
54. If within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the next business day at the same time and place or to such other time and place as the directors may determine, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the resolutions to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
55. At every meeting of members, the President shall preside as Chairman of the meeting. If there is no President or if the President is not present at the meeting, the members present shall choose some one of their number to be the Chairman. If the members are unable to choose a chairman for any reason, then the person representing the greatest number of voting shares present in person or by prescribed form of proxy at the meeting shall preside as chairman failing which the oldest individual member or representative of a member present shall take the chair.
56. The Chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, 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.
57. At any meeting of the members the Chairman shall be responsible for deciding in such manner as he shall consider appropriate whether any resolution has been carried or not and the result of his decision shall be announced to the meeting and recorded in the minutes thereof. If the Chairman shall have any doubt as to the outcome of any resolution put to vote, he shall cause a poll to be taken of all votes cast upon such resolution, but if the Chairman shall fail to take a poll then any member present in person or by proxy who disputes the announcement by the Chairman of the result of any vote may immediately following such announcement demand that a poll be taken and the Chairman shall thereupon cause a poll to be taken. If a poll is taken at any meeting, the result thereof shall be duly recorded in the minutes of that meeting by the Chairman.
58. Any person other than an individual shall be regarded as one member and subject to Article 59 the right of any individual to speak for or represent such member shall be determined by the law of the jurisdiction where, and by the documents by which, the person is constituted or derives its existence In
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case of doubt, the directors may in good faith seek legal advice from any qualified person and unless and until a court of competent jurisdiction shall otherwise rule the directors may rely and act upon such advice without incurring any liability to any member.
59. Any person other than an individual which is a member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the person which he represents as that person could exercise if it were an individual member of the Company.
60. The chairman of any meeting at which a vote is cast by proxy or on behalf of any person other than an individual may call for a notarially certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes cast by such proxy or on behalf of such person shall be disregarded.
61. Directors of the Company may attend and speak at any meeting of members of the Company and at any separate meeting of the holders of any class or series of shares in the Company.
62. If the Company shall have only one member the provisions herein contained for meetings of the members for any purpose shall be satisfied where such single shareholder passes a resolution in lieu of such meeting.
DIRECTORS
63. The first directors of the Company shall be elected by the subscribers to the Memorandum; and thereafter, subject to Article, 68 the directors shall be elected by the members for such term as the members determine.
64. The minimum number of directors shall be one and the maximum number shall be fifteen.
65. Each director shall hold office until his successor takes office or until his earlier death, resignation or removal, or in the case of a corporate director upon making of an order for the winding up or dissolution of the Company or upon the removal of a defunct company otherwise than pursuant to a winding-up order.
66. A director may be removed from office, with or without cause, by a resolution of members or where a majority of directors requests his resignation in writing.
67. A director may resign his office by giving written notice of his resignation to the Company and the resignation shall have effect from the date the notice is received by the Company or from such later date as may be specified in the notice.
68. The Directors shall have power at any time, and from time to time, to appoint any other qualified person as a director, either to fill a casual vacancy or as an addition to the Board, so that the total number of Directors shall not at any time exceed the maximum number fixed by these Articles.
69. With the prior or subsequent approval by a resolution of members, the directors may, by a
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resolution of directors, fix the emoluments of directors with respect to services to be rendered in any capacity to the Company.
70. A director shall not require a share qualification, and may be an individual or a company.
POWERS OF DIRECTORS
71. The business and affairs of the Company shall be managed by the directors who may pay all expenses incurred preliminary to and in connection with the formation and registration of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or these Articles required to be exercised by the members of the Company, subject to any delegation of such powers as may be authorised by these Articles and to such requirements as may be prescribed by a resolution of members; but no requirement made by a resolution of members shall prevail if it be inconsistent with these Articles nor shall such requirement invalidate any prior act of the directors which would have been valid if such requirement had not been made.
72. The directors may, by a resolution of directors, appoint any person, including a person who is a director, to be an officer or agent of the Company.
73. Every officer or agent of the Company has such powers and authority of the directors, including the power and authority to affix the Seal, as are set forth in these Articles or in the resolution of directors appointing the officer or agent, except that no officer or agent has any power or authority with respect to fixing the emoluments of directors.
74. Any director which is a body corporate may appoint any person its duly authorised representative for the purpose of representing it at meetings of the Board of Directors or with respect to unanimous written consents.
75. The continuing directors may act notwithstanding any vacancy in their body, save that if their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum for a meeting of directors, the continuing directors or director may act only for the purpose of appointing directors to fill any vacancy that has arisen or summoning a meeting of members.
76. All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company, shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by resolution of directors.
77. The Directors may, by a resolution of the directors designate one or more Committees, each consisting of one or more directors and each such Committee shall have such powers and authority of the directors including the power and authority to affix the common seal of the company, as are set forth in the resolution of directors establishing the Committee except that no Committee shall have any power or authority with respect to the matters requiring a resolution of the directors under section 2(3) of the Act.
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PROCEEDINGS OF DIRECTORS
78. The directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors may determine to be necessary or desirable.
79. A director shall be deemed to be present at a meeting of directors if he participates by telephone or other electronic means and all directors participating in the meeting are able to hear each other and recognize each others voice and for this purpose participation constitutes prima facie proof of recognition.
80. A resolution in writing, in one or more parts, signed by all the Directors, shall be as valid and effectual as if it had been passed at a Meeting of the Directors duly called and constituted.
81. A director shall be given not less than 7 days notice of meetings of directors, but a meeting of directors held without 7 days notice having been given to all directors shall be valid if all the directors entitled to vote at the meeting who do not attend, waive notice of the meeting. The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, does not invalidate the meeting.
82. The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed at any number shall be two (2). For the purposes of this article an alternate director shall be counted in a quorum.
83. If the Company shall have only one director the provisions herein contained for meetings of the directors shall not apply but such sole director shall have full power to represent and act for the Company in all matters as are not by the Act or the Memorandum or these Articles required to be exercised by the members of the Company and in lieu of minutes of a meeting the sole director shall record in writing and sign a note or memorandum of all matters requiring a resolution of directors. Such a note or memorandum shall constitute sufficient evidence of such resolution for all purposes and the requirements of the Act and these Articles for a meeting shall be satisfied where the sole director passes a resolution in lieu of such meeting.
84. At every meeting of the directors the President shall preside as chairman of the meeting. If there is no President or if the President is not present at the meeting the Vice President shall preside. If there is no Vice President or if the Vice President is not present at the meeting the directors present shall choose some one of their number to be chairman of the meeting.
85. The directors shall cause the following corporate records to be kept but which need not be maintained at the registered office of the Company:
(a) | minutes of all meetings of directors, members, Boards of directors, committees of officers and committees of members; |
(b) | copies of all resolutions consented to by directors, members, Boards of directors, committees of officers and committees of members; and |
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(c) | such financial statements, accounts and records as the directors by resolution of directors consider necessary or desirable in order to reflect the financial position of the Company. |
86. The register of the Directors and Officers and the register of members shall be kept at the registered office of the Company along with such other records as the Minister responsible for Companies may by order prescribe.
87. The meetings and proceedings of each Board of directors consisting of 2 or more directors shall be governed mutatis mutandis by the provisions of these Articles regulating the proceedings of directors so far as the same are not superseded by any provisions in the resolution establishing the Board.
ALTERNATE DIRECTORS
88. Any Director may at any time appoint any person to be an alternate Director of the Company and may at any time remove any alternate Director so appointed by him. An alternate Director so appointed shall not be entitled to receive any remuneration from the Company but shall otherwise be subject to the provisions of these presents with regard to Directors. An alternate Director shall (subject to his giving to the Company an address at which notices may be served upon him) be entitled to receive notices of all meetings of the Board and to attend and vote as a Director at any such meeting at which the Director appointing him is not personally present and generally to perform all the functions of his appointor as a Director in the absence of such appointor.
89. An alternate Director shall ipso facto cease to be an alternate Director if his appointor ceases for any reason to be a Director. All appointments and removals of alternate Directors shall be effected in writing under the hand of the Director making or revoking such appointment and lodged with the Secretary at the Companys office. The name of each alternate Director shall be disclosed and notified to the Registrar General.
MANAGING DIRECTOR
90. The members in general meeting or the Directors may from time to time appoint one or more of the Directors to be a Managing Director or Managing Directors of the Company either for a fixed term or without any limitation as to the period for which he or they is or are to hold such office and may from time to time remove or dismiss him or them from office and appoint another or others in his or their place or places.
91. The remuneration of a Managing Director shall from time to time be fixed by the Directors and may be by way of salary or commission or participation in profits or by any or all of those modes.
92. The Directors may from time to time entrust to and confer upon a Managing Director for the time being such of the powers exercisable under these presents by the Directors as they think fit and may confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they think expedient; and they may confer such powers either collaterally with, or to the exclusion of, and in substitution for all or any of the powers of the Directors in that behalf; and may from time to time revoke, withdraw or vary all or any of such powers.
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OFFICERS
93. The Company may by resolution of directors appoint officers of the Company at such times as shall be considered necessary or expedient. Such officers may consist of a President and one or more Vice-Presidents, Secretary and one or more Assistant Secretaries and Treasurer and such other officers as may from time to time be deemed desirable. Any number of offices may be held by the same person.
94. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by resolution of directors or resolution of members, but in the absence of any specific allocation of duties it shall be the responsibility of the President to preside at meetings of directors and members and to manage the day to day affairs of the Company, the Vice Presidents to act in order of seniority in the absence of the President but otherwise to perform such duties as may be delegated to them by the President, the Secretary to maintain the share register, minutes books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the Treasurer to be responsible for the financial affairs of the Company.
95. The emoluments of all officers shall be fixed by resolution of directors.
96. The officers of the Company shall hold office until their successors are duly elected and qualified, but any officer elected or appointed by the directors may be removed at any time, with or without cause, by resolution of directors. Any vacancy occurring in any office of the Company may be filled by resolution of directors. The directors may also revoke or vary a power previously given to an officer or agent.
CONFLICT OF INTERESTS
97. If the requirements of Articles 98 or 99 are satisfied, no agreement or transaction between the Company and one or more of its directors or liquidators, or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related, including as a director or liquidator of that other person, is void or voidable for this reason only or by reason only that the director or liquidator is present at the meeting of directors or liquidators or at the meeting of the committee of directors or liquidators that approves the agreement or transaction or that the vote or consent of the director or liquidator is counted for that purpose.
98. An agreement or transaction referred to in Article 97 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the other directors or liquidators; and |
(b) | the agreement or transaction is approved or ratified by a resolution of directors or liquidators that has been approved without counting the vote or consent of any interested director or liquidator or by the unanimous vote or consent of all disinterested |
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directors or liquidators are insufficient to approve a resolution of directors or liquidators. |
99. An agreement or transaction referred to in Article 98 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the members entitled to vote at a meeting of members; and |
(b) | the agreement or transaction is approved or ratified by a resolution of members. |
100. A director or liquidator who has an interest in any particular business to be considered at a meeting of directors, liquidators or members may be counted for purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
101. Subject to Article 102 the Company may indemnify against all expenses including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who
(a) | is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, an officer or liquidator of the Company; or |
(b) | is or was, at the request of the Company, serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise. |
102. Article 101 only applies to a person referred to in that Article if the person acted honestly and in good faith with a view to the best interests of the Company.
103. In the absence of any law to the contrary the decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests of the Company and as to whether the person had no reasonable cause to believe that his conduct was unlawful, is in the absence of fraud, sufficient for the purposes of these Articles, unless a question of law is involved.
104. The termination of any proceedings by any judgement, order, settlement, convictions or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not act honestly and in good faith and with a view to the best interests of the Company or that the person had reasonable cause to believe that his conduct was unlawful.
105. If a person to be indemnified has been successful in defence of any proceedings referred to in that Article the person is entitled to be indemnified against all expenses, including legal fees, and against all
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judgments, fines and amounts paid in settlement and reasonably incurred by the person in connection with the proceedings.
106. The Company may purchase and maintain insurance in relation to any person who is or was a director, an officer or a liquidator of the Company, or who at the request of the Company is or was serving as a director, an officer or a liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise, against any liability asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had the power to indemnify the person as provided in these Articles.
SEAL
107. The Company shall have a common seal and an imprint thereof shall be kept at the registered office of the Company. The directors shall provide for the safe custody of the Seal. The Seal when affixed to any written instrument shall be witnessed by a director or any other person so authorised from time to time by resolution of directors. The directors may provide for a facsimile of the Seal and of the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been signed as hereinbefore described. The Company may by resolution of directors authorise the adoption and use of one or more corporate seals for use outside the Commonwealth of the Bahamas.
DIVIDENDS
108. The Company may by a resolution of directors declare and pay dividends in money, shares, or other property. In the event that dividends are paid in specie the directors shall have responsibility for establishing and recording in the resolution of directors authorising the dividends, a fair and proper value for the assets to be so distributed.
109. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the Company.
110. The directors may, before declaring any dividend, set aside out of the profits of the Company such sum as they think proper as a reserve fund, and may invest the sum so set apart as a reserve fund upon such securities as they may select.
111. No dividend shall be declared and paid unless the directors determine that immediately after the payment of the dividend the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in its books of account, and its capital. In the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
112. Notice of any dividend that may have been declared shall be given to each member in manner hereinafter mentioned and all dividends unclaimed for 3 years after having been declared may be forfeited by resolution of directors for the benefit of the Company.
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113. No dividend shall bear interest as against the Company and no dividend shall be paid on shares described in Article 21.
114. A share issued as a dividend by the Company shall be treated for all purposes as having been issued for money equal to the surplus that is transferred to capital upon the issue of the share.
115. In the case of a dividend of authorised but unissued shares with par value, an amount equal to the aggregate par value of the shares shall be transferred from surplus to capital at the time of the distribution.
116. In the case of a dividend of authorised but unissued shares without par value, the amount designated by the directors shall be transferred from surplus to capital at the time of the distribution, except that the directors must designate as capital an amount that is at least equal to the amount that the shares are entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
117. A division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class or series having a proportionately smaller par value does not constitute a dividend of shares.
RESERVES
118. The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve fund to meet contingencies or for equalising dividends or for special dividends or bonuses or the redemption of preference shares or for repairing, improving and maintaining any of the property of the Company and for such other purposes as the Directors shall in their absolute discretion think conducive to the interests of the Company and may invest the several sums so set aside upon such investments as they may think fit and from time to time deal with and vary such investments and dispose of all or any part thereof for the benefit of the Company and may divide the reserve fund into such special funds as they think fit and employ the reserve fund or any part thereof in the business if the Company and that without being bound to keep the same separate from the other assets.
NOTICES
119. Any notice, information or written statement to be given by the Company to members must be served by mail addressed to each member at the address shown in the share register.
120. Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company.
121. Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was mailed in such time as to admit to its being delivered in the normal course of delivery within the period prescribed for service and was correctly addressed and the postage was prepaid.
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PENSION AND SUPERANNUATION FUNDS
122. The directors may establish and maintain or procure the establishment and maintenance of any non-contributors or contributory pension or superannuation funds for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments to any persons who are or were at any time in the employment or service of the Company or any company which is a subsidiary of the Company or is allied to or associated with the Company or with any such subsidiary, or who are or were at any time as aforesaid or who hold or held any salaried employment or office in the Company or such other company, or any persons in whose welfare the Company or any such other company as aforesaid is or has been at any time interested, and to the wives, widows, families and dependents of any such person and may make payments for or towards the insurance of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in conjunction with any such other company as aforesaid. Subject always to the proposal being approved by resolution of members, a director holding any such employment, or office shall be entitled to participate in and retain for his own benefit any such donation, gratuity, pension allowance or emolument.
ARBITRATION
123. Whenever any difference arises between the Company on the one hand and any of the members or their executors administrators or assigns on the other hand, touching the true intent and construction or the incidence or consequences of these Articles or of the Act, touching anything done or executed, omitted or suffered in pursuance of the Act or touching any breach or alleged breach or otherwise relating to the premises or to these Articles, or to any Act effecting the Company or to any of the affairs of the Company such difference shall, unless the parties agree to refer the same to a single arbitrator, be referred to two arbitrators one to be chosen by each of the parties to the difference and the arbitrators shall before entering on the reference appoint an umpire.
124. If either party to the reference makes default in appointing an arbitrator either originally or by way of substitution (in the event that an appointed arbitrator shall die, be incapable of acting or refuse to act) for 10 days after the other party has given him notice to appoint the same, such other party may appoint an arbitrator to act in the place of the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
125. If the Company has never issued shares it may voluntarily commence to wind up and dissolve by resolution of directors.
126. If the Company has previously issued shares, it may voluntarily commence to wind up and dissolve by resolution of members or by resolution of directors.
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CONTINUATION
127. The Company may by resolution of members or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the Commonwealth of the Bahamas in the manner provided under those laws.
Dated the 29th day of October, 200 . |
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Exhibit T3A.19
FORM 19
| ||||
COMPANY NO. 39809 |
COMPANIES ACT OF BARBADOS
CERTIFICATE OF CONTINUANCE
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
Name of Company
I hereby certify that the above-mentioned Company was continued, as set out in the attached Articles of Continuance, under section 356.2. (1) of the Companies Act.
Form 17
COMPANIES ACT OF BARBADOS
(Section 351)
ARTICLES OF CONTINUANCE
1. |
Name of Company SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. |
Company Number 39809 |
3. |
The classes and any maximum number of shares that the company is authorized to issue. |
The Share capital of the Company shall consist of an unlimited number of shares of one class without nominal or par value to be designated as Common Shares.
4. |
Restrictions if any on share transfers |
The annexed Schedule A is incorporated in this form.
5. |
Number (or minimum or maximum number) of directors. |
There shall be a minimum of 2 and a maximum of 10 Directors.
6. |
Restriction if any on business the company may carry on. |
The Company shall not engage in any business other than international business as defined in the International Business Companies Act, 1991-24 of the Laws of Barbados.
7. If change of name affected, previous name.
Not applicable.
8. Details of incorporation. |
The Company was incorporated in Barbados as Company No. 11308 on October 31, 1995 and then continued in the Bahamas on October 29, 2008 as Company No. 155501(B).
9. |
Other provisions if any. |
The annexed Schedule B is incorporated in this form.
10.
Date: August 27, 2015 |
Signature: /s/ Elvin Saruk |
Title: |
Director | |||
Date: |
Signature: |
Title: |
||||
Date: |
Signature: |
Title: |
For Ministry use only
Company Number: 39809 |
Filed: 27.08.2013 |
Form 17
THE COMPANIES ACT OF BARBADOS
(Section 351)
SCHEDULE TO
ARTICLES OF CONTINUANCE
1. Name of Company: |
Company No: | |||
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
39809 |
SCHEDULE A
4. |
Restrictions if any on share transfers: |
The right to transfer shares of the Company shall be restricted in that no shareholder shall be entitled to transfer any share or shares of the Company without the previous express sanction of the holders of more than 50% of the Common shares of the Company for the time being outstanding expressed by a resolution passed at a meeting of the shareholders or by an instrument in writing signed by the holders of more than 50% of such shares.
SCHEDULE B
9. |
Other provisions if any: |
(a) |
Any invitation to the public to subscribe for shares or security interest is prohibited. |
(b) |
In the case of an equality of votes on any question submitted to any meeting of the shareholders of the Company, the Chairman of the meeting shall on a ballot have a casting vote in addition to any votes to which he may otherwise be entitled. |
REGISTERED |
CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE |
Date: August 27, 2015 |
Signature: |
/s/ Elvin Saruk Elvin Saruk |
Title: Director |
Form 9
COMPANIES ACT OF BARBADOS
(Sections 66 & 74)
NOTICE OF DIRECTORS
OR
NOTICE OF CHANGE OF DIRECTORS
1. Name of Company |
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. |
Company Number 39809 |
3. |
Notice is given that on the day of , the following person(s) was / were appointed director(s) |
Name |
Residential Address |
Occupation | ||
N/A |
||||
4. |
Notice is given that on the day of , the following person(s) ceased to hold office as director(s) |
Name |
Residential Address | |
N/A |
||
5. |
The directors of the company as of this date are: |
Name |
Residential Address | Occupation | ||
* Elvin Saruk |
Suite 2000, 425 1 Street S.W., Calgary, Alberta T2P 3L8, Canada |
Company Executive | ||
* Paul Knowles |
Olympia Building, East Bay Street, P.O. Box N-7682, Nassau, Bahamas |
Company Executive | ||
* Duane Alvarez |
Cofre de Perote #235-701, Colonia Lomas de Chapultepec, Delegación Miguel Hidalgo, México D.F. 11000, México |
Company Executive |
* |
No middle initial |
6. Date: |
Signature: |
Title: | ||||||
August 27, 2015 |
/s/ Elvin Saruk Elvin Saruk |
REGISTERED |
CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE
Director |
For Ministry use only
Company Number: 39809 |
Filed: 27.08.2015 |
Form 4
COMPANIES ACT OF BARBADOS
(Section 169(1) and (2))
NOTICE OF ADDRESS
OR
NOTICE OF CHANGE OF ADDRESS OF REGISTERED OFFICE
1. |
Name of Company SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED |
2. |
Company Number 39809 |
3. |
Address of Registered Office |
Heritage House,
Pinfold Street,
Bridgetown,
Barbados.
4. |
Mailing Address |
As above.
5. |
If change of address, give previous address of Registered Office. |
M B & H Corporate Services Ltd.,
Mareva House,
4 George Street,
Nassau,
Bahamas
6.
|
Date:
August 27, 2015 |
Signature:
Elvin Saruk |
Title:
Director |
REGISTERED |
CORPORATE AFFAIRS AND INTELLECTUAL PROPERTY OFFICE |
For Ministry use only
Company Number: 39809 |
Filed: 27.08.2015 |
Form 33
COMPANIES ACT OF BARBADOS
REQUEST FOR NAME SEARCH AND NAME RESERVATION
1. |
Name, Address and telephone number of person making request: |
Susannah M. Evelyn
Peter Evelyn & Co., Attorneys-at-Law
Heritage House, Pinfold Street
Bridgetown, Barbados Telephone Number: 436 6208
2. |
Proposed name or names in order of preference |
(a) SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
(b)
(c)
3. |
Main types of business the company carries on or proposes to carry on: |
(a) |
International business as defined in the International Business Companies Act, 1991-24 of the Laws of Barbados being property investments in Cuba. |
(b) |
(c) |
4. |
Derivation of name |
Coined.
5. First name available to be reserved: |
Yes ☐ |
No ☐ |
6. |
Name is for: |
Continuance of Sherritt International (Cuba) Oil and Gas Limited from The Bahamas.
7. |
If for a change of name, state present name of company: |
Not applicable.
8. |
If for an amalgamation, state names of amalgamating companies: |
Not applicable.
Exhibit T3A.20
|
FORM 6
COMPANY NO. 39809 |
COMPANIES ACT OF BARBADOS
CERTIFICATE OF AMENDMENT
SICOG OIL AND GAS LIMITED |
Name of Company |
I hereby certify that the Articles of the above-mentioned company were amended
☐ Under Section 15 of the Companies Act in accordance with the attached notice;
☐ Under Section 33 of the Companies Act as set out in the attached Articles of Amendment designating a series of shares;
☐ Under Section 203 of the Companies Act as set out in the attached Articles of Amendment.
|
Form 5
|
||||||
FORM 5 | ||||||
THE COMPANIES ACT OF BARBADOS |
||||||
(Sections 33 and 203) |
ARTICLES OF AMENDMENT
1. Name of Company: |
2. Company No: | |||
SHERRITT INTERNATIONAL (CUBA) OIL & GAS LIMITED |
39809 |
3. | The articles of the above named company are amended as follows: |
Pursuant to Sections 197 (1) (a) of the Companies Act, Cap. 308 of the Laws of Barbados, the Articles of Incorporation of the Company be amended to
1. | change the name of the Company to the following: |
SICOG OIL AND GAS LIMITED
Date: |
Signature: |
Title: | ||
November 28th 2019 |
/s/ Kathy-Ann Monique Christian
Kathy-Ann Monique Christian |
DIRECTOR |
For Ministry use only
| ||
Company Number: 39809 |
Filed: 2019-10-31 |
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
WRITTEN CONSENT OF THE SOLE SHAREHOLDER IN LIEU OF A
MEETING
The undersigned being the sole Shareholder of SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED (the Company) acting pursuant to the Companies Act Cap 308, hereby records the following information and adopts the following resolutions by Written Consent in Lieu of Meeting:
RESOLVED:
1. | That pursuant to section 197(l)(a) of the Companies Act Chapter 308 of the Laws of Barbados, that the Articles of Incorporation be amended to change the name of the Company to SICOG OIL AND GAS LIMITED |
2. | That any one officer or director of the Company is authorised and directed on behalf of the Company to deliver Articles of Amendment, in duplicate, in the prescribed form to the appropriate authorities under the Companies Act and to sign and execute all documents and do all things necessary in connection with the foregoing. |
3. | That the Director of the Company be authorised to revoke this special resolution without approval of the shareholder of the Company at any time before it is acted upon. |
A telecopied transmission of this Consent by any person named below shall be
sufficient to establish the signature of that person and to constitute the authority
in writing of such person to the foregoing resolution.
IN WITNESS WHEREOF, the undersigned has executed this Consent this 19th day of November 2019.
SHERRITT INTERNATIONAL CORPORATION |
/s/ Elvin Saruk. |
Per: Elvin Saruk. |
Senior Vice President, Oil & Gas and Power |
I Kathy-Ann Monique Christian, one of the directors of Sherritt International (Cuba) Oil and Gas Limited do hereby certify that this is a true and correct copy of the original resolution.
/s/ Kathy-Ann Monique Christian |
Kathy-Ann Monique Christian |
Exhibit T3A.21
CORPORATE ACCESS NUMBER 20723302 BUSINESS CORPORATIONS ACT CERTIFICATE OF CONTINUANCE SHERRITT INTERNATIONAL OIL AND GAS LIMITED CONTINUED FROM CANADA TO ALBERTA ON JANUARY 23, 1997. Registrar of Corporations REG 3066 (96/01)
20723302
BUSINESS CORPORATIONS ACT
(SECTIONS 181, 261 AND 262)
FORM 11
ALBERTA CONSUMER AND CORPORATE AFFAIRS |
ARTICLES OF CONTINUANCE | |
1. NAME OF CORPORATION | 2. CORPORATE ACCESS NO. |
SHERRITT INTERNATIONAL OIL AND GAS LIMITED |
20723302 |
3. THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS AUTHORIZED TO ISSUE.
The Corporation is authorized to issue an unlimited number of Preferred Shares and an unlimited number of common shares, each with the rights, privileges, restrictions and conditions set forth in Schedule A attached hereto.
4. RESTRICTIONS IF ANY ON SHARE TRANSFERS.
As set forth in Schedule B attached hereto.
5. NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS.
Not less than one director and not more than ten directors.
6. RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON.
None.
7. IF CHANGE OF NAME EFFECTED, PREVIOUS NAME.
n/a
8. DETAILS OF INCORPORATION
The Corporation was incorporated under the Canada Business Corporations Act on October 31, 1995 as 3197221 Canada Inc. and changed its name on December 1, 1995 to Sherritt International Oil and Gas Limited.
9. OTHER PROVISIONS IF ANY
As set forth in Schedule C attached hereto.
Date | Signature | Title | ||
January 22/97 | /s/ Christopher R. Skelton | Solicitor | ||
CHRISTOPHER R. SKELTON | ||||
For Departmental Use Only | Filed |
SCHEDULE A
1A
1. | PREFERRED SHARES |
The Preferred Shares shall have attached thereto the following rights, privileges, restrictions and conditions:
1.1. | Ranking Of Preferred Shares |
The Preferred Shares shall be entitled to a preference over the common shares and over any other shares of the Corporation ranking junior to the Preferred Shares with respect to priority in payment of dividends and in the distribution of assets in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.
1.2. | Dividends |
The holders of the Preferred Shares shall be entitled to receive, and the Corporation shall pay thereon as and when declared by the board of directors of the Corporation, subject to the insolvency provisions of applicable law, but always in preference and priority to the payment of dividends on the common shares and any shares of any other class ranking junior to the Preferred Shares, out of moneys of the Corporation properly applicable to the payment of dividends, fixed cumulative preferential cash dividends at the rate of 6 1/8% per annum, such rate to be applied to $100,000.00 per Preferred Share (the Dividend), payable in lawful money of Canada on December 1 in each year (a Dividend Payment Date), the first Dividend Payment Date to be December 1, 1997. Dividends on the Preferred Shares shall accrue from and including such date as may be determined by the board of directors of the Corporation prior to the issue of such shares or, if no such date is so determined, then from and including the date of issue thereof.
1B
For any period which is less than a full year with respect to any Preferred Share:
(i) | which is issued, redeemed or purchased during such year; or |
(ii) | in respect of which assets of the Corporation are distributed to the holders thereof pursuant to section 1.10 during such year; |
dividends shall be deemed to accrue on a daily basis and shall be equal to the amount calculated by multiplying the Dividend by a fraction of which the numerator is the number of days in such period (including the day at the beginning of such period and excluding the day at the end of such period) and the denominator is the number of days in such year (including the day at the beginning thereof and excluding the Dividend Payment Date at the end thereof).
The holders of the Preferred Shares shall not be entitled to any dividend other than or in excess of the cumulative preferential cash dividends hereinbefore provided for. No dividends shall be paid on the common shares or on any shares of any other class of shares of the Corporation ranking junior to the Preferred Shares in any month unless and until the cumulative preferential dividends on all the Preferred Shares outstanding in respect of such month have been paid in full.
If, by reason of insolvency provisions of applicable law or for any other reason, on any Dividend Payment Date the dividends accrued to such date are not paid in full on all of the Preferred Shares then outstanding, such dividends, or the unpaid part thereof, shall be paid on a subsequent date or dates determined by the board of directors of the Corporation.
1.3. | Retraction Privilege |
Subject to the provisions of section 1.5, a holder of Preferred Shares shall be entitled to require the Corporation to redeem at any time or times after the date of issue thereof all or any of the Preferred Shares registered in the name of such holder.
1C
1.4. | Retraction Procedure |
In order to require the Corporation to redeem Preferred Shares pursuant to the retraction privilege provided for in section 1.3, a holder of Preferred Shares must tender to the Corporation, at its registered office, the certificate or certificates representing the Preferred Shares which the holder desires the Corporation to redeem, together with a written request specifying that the holder desires to have all or a specified number of the shares represented by such certificate or certificates redeemed by the Corporation. After receipt of the certificate or certificates representing the Preferred Shares which the holder desires the Corporation to redeem together with a request for redemption as specified above, the Corporation shall, subject to section 1.5, on the retraction date (the Retraction Date) selected by the Corporation (which shall be not later than 30 days following receipt by the Corporation of such written request) redeem Preferred Shares duly tendered pursuant to the retraction privilege provided for in section 1.3 by paying to such holder for each share to be redeemed $100,000.00, together with an amount equal to all dividends accrued and unpaid thereon up to the date on which redemption is to be made, such aggregate amount being hereinafter referred to in these provisions as the Aggregate Redemption Price.
The tender of the certificate or certificates by a holder of Preferred Shares pursuant to this section 1.4 shall be irrevocable unless payment of the Aggregate Redemption Price shall not be duly made by the Corporation to the holder on or before the Retraction Date. In the event that payment of the Aggregate Redemption Price is not made by the Corporation on or before the Retraction Date, the Corporation shall forthwith thereafter return the holders deposited share certificate or certificates to the holder. If a holder of Preferred Shares tenders for redemption pursuant to the above retraction privilege a part only of the Preferred Shares represented by any certificate or certificates, the Corporation shall issue and deliver to such holder at the expense of the Corporation a new certificate representing the Preferred Shares which are not being tendered for redemption.
1D
On the Retraction Date the Aggregate Redemption Price shall be paid by cheque payable in lawful money of Canada at par at any branch in Canada of the Corporations bankers. Upon such payment being made, the Preferred Shares in respect of which such payment is made shall be redeemed. From and after the Retraction Date, the Preferred Shares so redeemed shall cease to be entitled to dividends or any other participation in any distribution of the assets of the Corporation and the holder thereof shall not be entitled to exercise any of the other rights of shareholders in respect thereof unless payment of the Aggregate Redemption Price shall not be made on the retraction date, in which event the rights of such holders shall remain unaffected.
1.5. | Retraction Subject To Applicable Law |
If, as a result of insolvency provisions or other provisions of applicable law, the Corporation is not permitted to redeem all of the Preferred Shares duly tendered pursuant to the above retraction privilege, the Corporation shall redeem only the maximum number of Preferred Shares which the board of directors of the Corporation determines the Corporation is then permitted to redeem. Such redemption shall be made pro rata, disregarding fractions of shares, from each holder of tendered Preferred Shares according to the number of Preferred Shares tendered for redemption by each such holder and the Corporation shall issue and deliver to each such holder at the expense of the Corporation a new certificate representing the Preferred Shares not redeemed by the Corporation.
So long as the board of directors of the Corporation has acted in good faith in making any of the determinations referred to above as to the number of Preferred Shares which the Corporation is permitted at any one time to redeem, neither the Corporation nor the board of directors shall have any liability in the event that any such determination proves to be inaccurate.
1.6. | Redemption At Option Of Corporation |
The Corporation may, upon giving notice as hereinafter provided, redeem at any time the whole or from time to time any part of the outstanding Preferred Shares on payment for each share to be redeemed of an amount equal to the Aggregate Redemption Price.
1E
1.7. | Partial Redemption |
In case a part only of the Preferred Shares is to be redeemed at any time, the shares to be redeemed shall be selected by lot or some other random selection method in such manner as the board of directors of the Corporation in its sole discretion determines or selected in such other manner as the board of directors of the Corporation in its sole discretion determines to be equitable. If a part only of the Preferred Shares represented by any certificate shall be redeemed, a new certificate representing the balance of such shares shall be issued to the holder thereof at the expense of the Corporation upon presentation and surrender of the first mentioned certificate.
1.8. | Method Of Redemption |
In any case of redemption of Preferred Shares, the Corporation shall, at least 30 days before the date specified for redemption, give to each person who at the date of the notice hereinafter referred to is a registered holder of Preferred Shares to be redeemed a notice in writing of the intention of the Corporation to redeem such Preferred Shares, such notice to be given as provided in section 1.13 hereof. Such notice shall set out the number of Preferred Shares held by the person to whom it is addressed which are to be redeemed, the Aggregate Redemption Price, the date specified for redemption and the place or places in Canada at which holders of Preferred Shares may present and surrender such shares for redemption.
On or after the date so specified for redemption, the Corporation shall pay or cause to be paid to or to the order of the registered holders of the Preferred Shares to be redeemed the Aggregate Redemption Price of such shares on presentation and surrender, at the registered office of the Corporation or at any other place or places in Canada specified in the notice of redemption, of the certificate or certificates representing the Preferred Shares called for redemption. Payment in respect of Preferred Shares being redeemed shall be made by cheque payable to the respective holders thereof in lawful money of Canada at par at any branch in Canada of the Corporations bankers.
1F
The Corporation shall have the right at any time after giving notice of its intention to redeem Preferred Shares to deposit the Aggregate Redemption Price of the Preferred Shares so called for redemption, or of such of the Preferred Shares which are represented by certificates which have not at the date of such deposit been surrendered by the holders thereof in connection with such redemption, in a separate account in any chartered bank or any trust company in Canada named in the redemption notice or in a subsequent notice in writing to the holders of the Preferred Shares in respect of which the deposit is made, to be paid without interest to or to the order of the respective holders of Preferred Shares called for redemption upon presentation and surrender to such bank or trust company of the certificates representing such shares. Upon such deposit being made or upon the date specified for redemption in such notice, whichever is the later, the Preferred Shares in respect of which such deposit shall have been made shall be deemed to be redeemed and the rights of the holders thereof shall be limited to receiving without interest the Aggregate Redemption Price of their respective Preferred Shares being redeemed upon presentation and surrender of the certificate or certificates representing such shares. Any interest allowed on any such deposit shall belong to the Corporation.
From and after the date specified for redemption in any notice of redemption, the Preferred Shares called for redemption shall cease to be entitled to dividends or any other participation in any distribution of the assets of the Corporation and the holders thereof shall not be entitled to exercise any of the other rights as shareholders in respect thereof unless payment of the Aggregate Redemption Price shall not be made upon presentation and surrender of the share certificates in accordance with the foregoing provisions, in which case the rights of such holders shall remain unaffected.
1.9. | Purchase For Cancellation |
The Corporation may at any time or from time to time purchase for cancellation all or any part of the outstanding Preferred Shares at the lowest price or prices at which, in the opinion of the board of directors of the Corporation, such shares are then obtainable but not
1G
exceeding an amount per share equal to the Redemption Price plus an amount equal to all dividends accrued and unpaid thereon to the purchase date.
1.10. | Liquidation, Dissolution Or Winding-Up |
In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or in the event of any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs, the holders of the Preferred Shares shall be entitled to receive from the assets of the Corporation an amount per share equal to $100,000.00 held by them respectively, together with an amount equal to all dividends accrued and unpaid thereon to the date of the liquidation, dissolution, winding-up or other distribution, the whole before any amount shall be paid by the Corporation or any assets of the Corporation shall be distributed to holders of the common shares or any shares of any other class of shares of the Corporation ranking junior to the Preferred Shares. After payment to the holders of the Preferred Shares of the amounts so payable to them, they shall not be entitled to share in any further distribution of the assets of the Corporation.
1.11. | Voting Rights |
Except as hereinafter referred to or as required by law, the holders of the Preferred Shares shall not be entitled as such to receive notice of, to attend or to vote at any meeting of the shareholders of the Corporation.
1.12. | Amendment With Approval Of Holders Of Preferred Shares |
The rights, privileges, restrictions and conditions attached to the Preferred Shares may be added to, changed or removed but only with the approval of holders of Preferred Shares given as hereinafter specified.
1H
1.13. | Approval Of Holders Of Preferred Shares |
The approval of the holders of Preferred Shares to add to, change or remove any right, privilege, restriction or condition attached to the Preferred Shares or in respect of any other matter requiring the consent of the holders of the Preferred Shares may be given in such manner as may then be required by law, subject to a minimum requirement that such approval be given by resolution signed by all the holders of the Preferred Shares or passed by the affirmative vote of at least 2/3 of the votes cast at a meeting of the holders of Preferred Shares duly called for that purpose.
The formalities to be observed with respect to the giving of notice of any such meeting or any adjourned meeting, the quorum required therefor and the conduct thereof shall be those from time to time prescribed by the by-laws of the Corporation with respect to meetings of shareholders or, if not prescribed, as required by the Act as in force at the time of the meeting.
2. | COMMON SHARES |
The holders of the common shares shall be entitled to vote at all meetings of shareholders of the Corporation except meetings at which only the holders of another class or series of the Corporation as a class or series are entitled to vote, and shall be entitled to one vote at all such meetings in respect of each common share held.
After payment to the holders of the Preferred Shares of the amount or amounts to which they may be entitled, the holders of the common shares shall be entitled to receive any dividend declared by the board of directors of the Corporation and to receive the remaining property of the Corporation upon dissolution.
Dividends will not be declared on the common shares if, after payment of such dividends, the fair market value of all of the outstanding Preferred Shares would be less than the amount required to redeem such Preferred Shares.
SCHEDULE B
1. The right to transfer common shares of the Corporation shall be restricted in that no shareholder shall be entitled to transfer any common share or common shares in the capital of the Corporation without either:
(a) | the express sanction of the holders of more than 50% of the common shares of the Corporation for the time being outstanding expressed by a resolution passed at a meeting of the shareholders or by an instrument or instruments in writing signed by the holders of more than 50% of such shares, or |
(b) | the express sanction of the directors of the Corporation expressed by a resolution passed by the votes of a majority of the directors of the Corporation at a meeting of the board of directors or by instrument or instruments in writing signed by a majority of the directors. |
2. The right to transfer Preferred Shares of the Corporation shall be restricted in that no shareholder shall be entitled to transfer any Preferred Share or Preferred Shares in the capital of the Corporation without either:
(a) | the express sanction of the holders of more than 50% of the Preferred Shares of the Corporation for the time being outstanding expressed by a resolution passed at a meeting of the shareholders or by an instrument or instruments in writing signed by the holders of more than 50% of such shares, or |
(b) | the express sanction of the directors of the Corporation expressed by a resolution passed by the votes of a majority of the directors of the Corporation at a meeting of the board of directors or by instrument or instruments in writing signed by a majority of the directors. |
SCHEDULE C
1. The number of shareholders of the Corporation, exclusive of persons who are in its employment and exclusive of persons who, having been formerly in the employment of the Corporation were, while in that employment, and have continued after the termination of that employment to be, shareholders of the Corporation, is limited to not more than 50, 2 or more persons who are the joint registered owners of 1 or more shares being counted as 1 shareholder.
2. Any invitation to the public to subscribe for securities of the Corporation is prohibited.
3. The board of directors of the Corporation may, without authorization of the shareholders of the Corporation, from time to time, in such amounts and on such terms as it deems expedient:
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the Corporation; |
(c) | give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and |
(d) | charge, mortgage, hypothecate, pledge or otherwise create a security interest in all or any of the currently owned or subsequently acquired property and assets of the Corporation, including, without limiting the generality of the foregoing, real and personal property, movable and immovable property, tangible and intangible assets, book debts, rights, powers, franchise and undertaking, to secure any obligation of the Corporation. |
The board of directors may from time to time by resolution delegate to a committee of directors or to one or more of the directors or officers of the Corporation all or any of the powers hereby conferred upon the board to such extent and in such manner as the board shall determine at the time of each such delegation. Nothing in this section shall limit or restrict the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
4. The number of directors of the Corporation shall be determined from time to time as follows:
(a) | where directors are to be elected at a meeting of shareholders, the number shall be determined by resolution of the board of directors and set out in the notice calling the meeting of shareholders; and |
(b) | where directors are to be elected by way of a written resolution of shareholders, the number shall be set out in the resolution; |
provided that the number of directors may not be less than the minimum number nor more than the maximum number of directors set out in the articles.
Exhibit T3A.22
THE COMMONWEALTH OF THE BAHAMAS
The International Business Companies Act 2000
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
Preliminary
1. In these Articles, if not inconsistent with the subject or context, the words and expressions standing in the first column of the following table shall bear the meanings set opposite them respectively in the second column thereof.
Words |
Meanings | |
capital |
The sum of the aggregate par value of all outstanding shares with par value of the Company and shares with par value held by the Company as treasury shares plus | |
(a) the aggregate of the amounts designated as capital of all outstanding shares without par value of the Company and shares without par value held by the Company as treasury shares, and | ||
(b) the amounts as are from time to time transferred from surplus to capital by a resolution of directors. | ||
member |
A person who holds shares in the Company. | |
person |
An individual, a corporation, a trust, the estate of a deceased individual, a partnership or an unincorporated association of persons. | |
register of members |
The share register. | |
resolution of directors |
(a) A Resolution approved at a duly constituted meeting of directors of the Company or of a committee of directors of the Company by the affirmative vote of a simple majority of the directors present who voted and did not abstain where the meeting was called on proper notice or, if on short notice, if those directors not present have waived notice; or | |
(b) a resolution consented to in writing by all directors or of all members of the committee, as the case may be. |
resolution of members | (a) A resolution approved at a duly constituted meeting of the members of the Company by the affirmative vote of | |
(i) a simple majority of the votes of the shares which were present at the meeting and entitled to vote thereon and were voted and not abstained, or | ||
(ii) a simple majority of the votes of each class or series of shares which were present at the meeting and entitled to vote thereon as a class or series and were voted and not abstained and of a simple majority of the votes of the remaining shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or | ||
(b) a resolution consented to in writing by | ||
(i) all of the votes of shares entitled to vote thereon, or | ||
(ii) all of the votes of each class or series of shares entitled to vote thereon as a class or series and of all of the votes of the remaining shares entitled to vote thereon; | ||
securities | Shares and debt obligations of every kind, and options, warrants and rights to acquire shares, or debt obligations. | |
surplus | The excess, if any, at the time of the determination of the total assets of the Company over the aggregate of its total liabilities, as shown in its books of account, plus its issued and outstanding share capital and surplus may be computed having regard to the net unrealized appreciation of assets of the company in accordance with section 36 of the Act. | |
the Act | The International Business Companies Act 2000 (No. 45 of 2000). | |
the Memorandum | The Memorandum of Association of the Company as originally framed or as from time to time amended by a resolution of directors or resolution of the members. | |
the Seal | Any seal which has been duly adopted as the Common Seal of the Company. | |
these Articles | These Articles of Association as originally framed or as from time to time amended by a resolution of directors or resolution of the members. | |
treasury shares | Shares in the Company that were previously issued but were repurchased, redeemed or otherwise acquired by the Company and not cancelled. |
- 2 -
2. Written or any term of like import includes words typewritten, printed, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in a visible form, including telex, telegram, cable or other form of writing produced by electronic communication.
3. Save as aforesaid any words or expressions defined in the Act shall bear the same meaning in these Articles.
4. Whenever the singular or plural number, or the masculine, feminine or neuter gender is used in these Articles, it shall equally, where the context admits, include the others.
5. A reference in these Articles to voting in relation to shares shall be construed as a reference to voting by members holding the shares except that it is the votes allocated to the shares that shall be counted and not the number of members who actually voted and a reference to shares being present at a meeting shall be given a corresponding construction.
6. A reference to money in these Articles, unless otherwise stated, is a reference to the currency in which shares in the Company shall be issued according to the provisions of the Memorandum.
SHARES, AUTHORISED CAPITAL AND CAPITAL
7. Every person whose name is entered as a member in the share register shall, without payment, be entitled to a certificate either (a) under the signatures of two directors or officers or (b) signed by one director or one officer of the Company and under the common Seal of the Company specifying the share or shares held and the par value where applicable thereto and the signatures of the director or officer and the Seal may be facsimiles, provided that in respect of a share, or shares, held jointly by several persons the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all.
8. Any member receiving a share certificate for shares shall indemnify and hold the Company and its directors and officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession thereof. If a share certificate for shares is worn out or lost it may be renewed on production of the worn out certificate or on satisfactory proof of its loss together with such indemnity as may be reasonably required by the directors.
9. If several persons are registered as joint holders of any shares, any one of such persons may give an effectual receipt for any dividend payable in respect of such shares.
10. Subject to the provisions of these Articles and any resolution of members the unissued shares of the Company shall be at the disposal of the directors who may without prejudice to any rights previously conferred on the holders of any existing shares or class or series of shares, offer, allot, grant options over or otherwise dispose of the shares to such persons, at such times and upon such terms and conditions as the Company may by resolution of directors determine.
- 3 -
11. Shares in the Company shall be issued for money, services rendered, personal property (including other shares, debt obligations or other securities in the company), any estate in real property, a promissory note or other binding obligation to contribute money or property or any combination of the foregoing as shall be determined by a resolution of directors.
12. Shares in the Company may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine, except that in the case of shares with par value, the amount shall not be less than the par value, and in the absence of fraud the decision of the directors as to the value of the consideration received by the Company in respect of the issue is conclusive unless a question of law is involved. The consideration in respect of the shares constitutes capital to the extent of the par value and the excess constitutes surplus.
13. A share issued by the Company upon conversion of, or in exchange for, another share or a debt obligation or other security in the Company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the Company in respect of the other share, debt obligation or security.
14. Treasury shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with these Articles) as the Company may by resolution of directors determine.
15. The Company may issue fractions of a share and a fractional share shall have the same corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class or series of shares.
16. Upon the issue by the Company of a share with par value, the consideration in respect of the share constitutes capital to the extent of the par value and the excess constitutes surplus.
17. Upon the issue by the Company of a share without par value, the consideration in respect of the share constitutes capital to the extent designated by the directors and the excess constitutes surplus, except that the directors must designate as capital an amount of the consideration that is at least equal to the amount that the share is entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
18. The Company may purchase, redeem or otherwise acquire and hold its own shares but only out of surplus or in exchange for newly issued shares of equal value provided that no purchase redemption or acquisition which has the effect of reducing the capital of the Company shall be effected unless in compliance with Articles 37 and 38 but no purchase, redemption or other acquisition shall be made unless the directors determine that immediately after the purchase, redemption or other acquisition:
(a) | the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business; and |
(b) | the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in the books of accounts; and, in the absence of fraud, the decision of the directors as to |
- 4 -
the realizable value of the assets of the company is conclusive unless a question of law is involved. |
19. A determination by the directors under the preceding Article is not required where shares are purchased, redeemed or otherwise acquired
(a) | pursuant to a right of a member to have his shares redeemed or to have his shares exchanged for money or other property of the Company; |
(b) | in exchange for newly issued shares in the Company; |
(c) | by virtue of the provisions of Section 80 of the Act; and |
(d) | pursuant to an order of the court. |
20. Shares that the Company purchases, redeems or otherwise acquires pursuant to Articles 18 or 19 may be cancelled or held as treasury shares unless the shares are purchased, redeemed or otherwise acquired out of capital pursuant to section 25 of the Act in which case they shall be cancelled. Upon the cancellation of a share, the amount included as capital of the Company with respect to that share shall be deducted from the capital of the Company.
21. Where shares in the Company are held by the Company as treasury shares or are held by another company of which the Company holds, directly or indirectly, shares having more than 50 percent of the votes in the election of directors of the other company, such shares of the Company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for any purpose except for purposes of determining the capital of the Company.
22. No invitation shall be issued to the public by the Company or the directors for the time being thereof to subscribe for any shares or debentures of the Company.
23. No notice of a trust, whether expressed, implied or constructive, shall be entered in the share register.
LIEN ON SHARES
24. The Company shall have a first and paramount lien on every share issued for a promissory note or for any other binding obligation to contribute money or property or any combination thereof to the Company, and the Company shall also have a first and paramount lien on every share standing registered in the name of a member, whether singly or jointly with any other person or persons, for all the debts and liabilities of such member or his estate to the Company, whether the same shall have been incurred before or after notice to the Company of any interest of any person other than such member, and whether the time for the payment or discharge of the same shall have actually arrived or not, and notwithstanding that the same are joint debts or liabilities of such member or his estate and any other person, whether a member of the Company or not. The Companys lien on a share shall extend to all dividends payable thereon. The directors may at any time either generally, or in any particular case, waive any lien that has arisen or declare any share to be wholly or in part exempt from the provisions of this Article.
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25. In the absence of express provisions regarding sale in the promissory note or other binding obligation to contribute money or property, the Company may sell, in such manner as it may by resolution of directors determine, any share on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of twenty one days after a notice in writing, stating and demanding payment of the sum presently payable and giving notice of the intention to sell in default of such payment, has been served on the holder for the time being of the share.
26. The net proceeds of the sale by the Company of any shares on which it has a lien shall be applied in or towards payment or discharge of the binding obligation in respect of which the lien exists so far as the same is presently payable and any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon the share prior to the sale) be paid to the holder of the share immediately before such sale. For giving effect to any such sale the directors may authorise some person to transfer the share sold to the purchaser thereof. The purchaser shall be registered as the holder of the share and he shall not be bound to see to the application of the purchase money, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the sale.
TRANSFER OF SHARES
27. Subject to any limitations in the Memorandum, shares in the Company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, but in the absence of such written instrument of transfer the directors may accept such evidence of a transfer of shares as they consider appropriate. The Directors may decline to register any transfer of shares without assigning any reason therefore.
28. The Company shall not be required to treat a transferee of a registered share in the Company as a member until the transferees name has been entered in the share register.
29 Subject to the approval of the Directors, the Company must on the application of the transferor or transferee of a registered share in the Company enter in the share register the name of the transferee of the share save that the registration of transfers may be suspended and the share register closed at such times and for such periods as the Company may from time to time by resolution of Directors determine provided always that such registration shall not be suspended and the share register closed for more than 60 days in any period of 12 months.
TRANSMISSION OF SHARES
30. The executor or administrator of a deceased member, the guardian of an incompetent member or the trustee of a bankrupt member shall be the only person recognized by the Company as having any title to his share but they shall not be entitled to exercise any rights as a member of the Company until they have proceeded as set forth in the next following two Articles.
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31. Any person becoming entitled by operation of law or otherwise to a share or shares in consequence of the death, incompetence or bankruptcy of any member may be registered as a member upon such evidence being produced as may reasonably be required by the directors. An application by any such person to be registered as a member shall for all purposes be deemed to be a transfer of shares of the deceased, incompetent or bankrupt member and the directors shall treat it as such.
32. Any person who has become entitled to a share or shares in consequence of the death, incompetence or bankruptcy of any member may, instead of being registered himself, request in writing that some person to be named by him be registered as the transferee of such share or shares and such request shall likewise be treated as if it were a transfer.
33. What amounts to incompetence on the part of a person is a matter to be determined by the court having regard to all the relevant evidence and the circumstances of the case.
REDUCTION OR INCREASE IN CAPITAL OR AUTHORISED CAPITAL
34. The Company may by a resolution of directors amend the Memorandum to increase or reduce its authorised capital and in connection therewith the Company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any such shares or effect any combination of the foregoing.
35. The Company may amend the Memorandum to
(a) | divide the shares, including issued shares of a class or series into a larger number of shares of the same class or series; or |
(b) | combine the shares, including issued shares, of a class or series into a smaller number of shares of the same class or series, provided, however, that where shares are divided or combined under (a) or (b) of this Article, the aggregate par value of the new shares must be equal to the aggregate par value of the original shares. |
36. The capital of the Company may by a resolution of directors, be increased by transferring an amount of the surplus of the Company to capital and, subject to the provisions of Articles 37 and 38, the capital may by resolution of directors be reduced by:
(a) | returning to members any amount received by the Company upon the issue of any of its shares, the amount being surplus to the requirements of the Company, |
(b) | cancelling any capital that is lost or not represented by assets having a realisable value or |
(c) | transferring capital to surplus for the purpose of purchasing, redeeming or otherwise acquiring shares that the directors have resolved to purchase, redeem or otherwise acquire. |
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37. No reduction of capital shall be effected that reduces the capital of the Company to an amount that immediately after the reduction is less than the aggregate par value of all outstanding shares with par value and all shares with par value held by the Company as treasury shares and the aggregate of the amounts designated as capital of all outstanding shares without par value and all shares without par value held by the Company as treasury shares that are entitled to a preference, if any, in the assets of the Company upon liquidation of the Company.
38. No reduction of capital shall be effected unless the directors determine that immediately after the reduction the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and that the realizable assets of the Company will not be less than its total liabilities, other than deferred taxes, as shown in the books of the Company and its remaining capital, and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
BORROWING POWERS
39. The Directors may from time to time, at their discretion, raise or borrow or secure the payment of any sum or sums of money for the purposes of the Company.
40. The Directors may raise or secure the payment or repayment of such money in such manner and upon such terms and conditions in all respects as they think fit and in particular by the issue of bonds, mortgages, debentures or debenture stock perpetual or otherwise, notes or other obligations of the Company charged upon all or any part of the property of the Company (both present and future).
41. Debentures, debenture stock and other securities may be made assignable, free from any equities, between the Company and the person to whom the same may be issued.
MEETINGS AND CONSENTS OF MEMBERS
42. The directors of the Company may convene meetings of the members of the Company at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors consider necessary or desirable.
43. Upon the written request of members holding 50 percent or more of the outstanding voting shares in the Company the directors shall convene a meeting of members.
44. The directors shall give not less than 7 days notice of meetings of members to those persons whose names on the date the notice is given appear as members in the share register of the Company.
45. A meeting of members held in contravention of the requirement in Article 44 is valid.
(a) | if members holding not less than 90 percent of the total number of shares entitled to vote on all matters to be considered at the meeting, or 90 percent of the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with not less than a 90 |
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percent majority of the remaining votes, have agreed to shorter notice of the meeting, or |
(b) | if all members holding shares entitled to vote on all or any matters to be considered at the meeting have waived notice of the meeting and for this purpose presence at the meeting shall be deemed to constitute waiver. |
46. The inadvertent failure of the directors to give notice of a meeting to a member, or the fact that a member has not received notice, does not invalidate the meeting.
47. A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
48. The instrument appointing a proxy shall be produced at the place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
49. An instrument appointing a proxy shall be in substantially the following form or such other form as the Chairman of the meeting shall accept as properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above Company with shares HEREBY APPOINT of or failing him of to be my/our proxy to vote for me/us at the meeting of members to be held on the day of and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
____________________________
Member
50. The following shall apply in respect of joint ownership of shares:
(a) | if two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may speak as a member; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners, and |
(c) | if two or more of the joint owners are present in person or by proxy they must vote as one. |
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51. A member shall be deemed to be present at a meeting of members if he participates by telephone or other electronic means and all members participating in the meeting are able to hear each other and recognise each others voice and for this purpose participation constitutes prima facie proof of recognition.
52. A resolution in writing, in one or more parts, signed by all the members for the time being shall be as valid and effectual as if it had been passed at a General Meeting duly called and constituted.
53. A meeting of members is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 50 percent of the votes of the shares or class or series of shares entitled to vote on resolutions of members to be considered at the meeting. If a quorum be present, notwithstanding the fact that such quorum may be represented by only one person then such person may resolve any matter and a certificate signed by such person accompanied where such person be a proxy by a copy of the proxy form shall constitute a valid resolution of members.
54. If within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the next business day at the same time and place or to such other time and place as the directors may determine, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the resolutions to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
55. At every meeting of members, the President shall preside as Chairman of the meeting. If there is no President or if the President is not present at the meeting, the members present shall choose some one of their number to be the Chairman. If the members are unable to choose a chairman for any reason, then the person representing the greatest number of voting shares present in person or by prescribed form of proxy at the meeting shall preside as chairman failing which the oldest individual member or representative of a member present shall take the chair.
56. The Chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, 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.
57. At any meeting of the members the Chairman shall be responsible for deciding in such manner as he shall consider appropriate whether any resolution has been carried or not and the result of his decision shall be announced to the meeting and recorded in the minutes thereof. If the Chairman shall have any doubt as to the outcome of any resolution put to vote, he shall cause a poll to be taken of all votes cast upon such resolution, but if the Chairman shall fail to take a poll then any member present in person or by proxy who disputes the announcement by the Chairman of the result of any vote may immediately following such announcement demand that a poll be taken and the Chairman shall thereupon cause a poll to be taken. If a poll is taken at any meeting, the result thereof shall be duly recorded in the minutes of that meeting by the Chairman.
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58. Any person other than an individual shall be regarded as one member and subject to Article 59 the right of any individual to speak for or represent such member shall be determined by the law of the jurisdiction where, and by the documents by which, the person is constituted or derives its existence. In case of doubt, the directors may in good faith seek legal advice from any qualified person and unless and until a court of competent jurisdiction shall otherwise rule the directors may rely and act upon such advice without incurring any liability to any member.
59. Any person other than an individual which is a member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the person which he represents as that person could exercise if it were an individual member of the Company.
60. The chairman of any meeting at which a vote is cast by proxy or on behalf of any person other than an individual may call for a notarially certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes cast by such proxy or on behalf of such person shall be disregarded.
61. Directors of the Company may attend and speak at any meeting of members of the Company and at any separate meeting of the holders of any class or series of shares in the Company.
62. If the Company shall have only one member the provisions herein contained for meetings of the members for any purpose shall be satisfied where such single shareholder passes a resolution in lieu of such meeting.
DIRECTORS
63. The first directors of the Company shall be elected by the subscribers to the Memorandum; and thereafter, subject to Article, 68 the directors shall be elected by the members for such term as the members determine.
64. The minimum number of directors shall be one and the maximum number shall be fifteen.
65. Each director shall hold office until his successor takes office or until his earlier death, resignation or removal, or in the case of a corporate director upon making of an order for the winding up or dissolution of the Company or upon the removal of a defunct company otherwise than pursuant to a winding-up order.
66. A director may be removed from office, with or without cause, by a resolution of members or where a majority of directors requests his resignation in writing.
67. A director may resign his office by giving written notice of his resignation to the Company and the resignation shall have effect from the date the notice is received by the Company or from such later date as may be specified in the notice.
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68. The Directors shall have power at any time, and from time to time, to appoint any other qualified person as a director, either to fill a casual vacancy or as an addition to the Board, so that the total number of Directors shall not at any time exceed the maximum number fixed by these Articles.
69. With the prior or subsequent approval by a resolution of members, the directors may, by a resolution of directors, fix the emoluments of directors with respect to services to be rendered in any capacity to the Company.
70. A director shall not require a share qualification, and may be an individual or a company.
POWERS OF DIRECTORS
71. The business and affairs of the Company shall be managed by the directors who may pay all expenses incurred preliminary to and in connection with the formation and registration of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or these Articles required to be exercised by the members of the Company, subject to any delegation of such powers as may be authorised by these Articles and to such requirements as may be prescribed by a resolution of members; but no requirement made by a resolution of members shall prevail if it be inconsistent with these Articles nor shall such requirement invalidate any prior act of the directors which would have been valid if such requirement had not been made.
72. The directors may, by a resolution of directors, appoint any person, including a person who is a director, to be an officer or agent of the Company.
73. Every officer or agent of the Company has such powers and authority of the directors, including the power and authority to affix the Seal, as are set forth in these Articles or in the resolution of directors appointing the officer or agent, except that no officer or agent has any power or authority with respect to fixing the emoluments of directors.
74. Any director which is a body corporate may appoint any person its duly authorised representative for the purpose of representing it at meetings of the Board of Directors or with respect to unanimous written consents.
75. The continuing directors may act notwithstanding any vacancy in their body, save that if their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum for a meeting of directors, the continuing directors or director may act only for the purpose of appointing directors to fill any vacancy that has arisen or summoning a meeting of members.
76. All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company, shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by resolution of directors.
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77. The Directors may, by a resolution of the directors designate one or more Committees, each consisting of one or more directors and each such Committee shall have such powers and authority of the directors including the power and authority to affix the common seal of the company, as are set forth in the resolution of directors establishing the Committee except that no Committee shall have any power or authority with respect to the matters requiring a resolution of the directors under section 2(3) of the Act.
PROCEEDINGS OF DIRECTORS
78. The directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors may determine to be necessary or desirable.
79. A director shall be deemed to be present at a meeting of directors if he participates by telephone or other electronic means and all directors participating in the meeting are able to hear each other and recognise each others voice and for this purpose participation constitutes prima facie proof of recognition.
80. A resolution in writing, in one or more parts, signed by all the Directors, shall be as valid and effectual as if it had been passed at a Meeting of the Directors duly called and constituted.
81. A director shall be given not less than 7 days notice of meetings of directors, but a meeting of directors held without 7 days notice having been given to all directors shall be valid if all the directors entitled to vote at the meeting who do not attend, waive notice of the meeting. The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, does not invalidate the meeting.
82. The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed at any number shall be two (2). For the purposes of this article an alternate director shall be counted in a quorum.
83. If the Company shall have only one director the provisions herein contained for meetings of the directors shall not apply but such sole director shall have full power to represent and act for the Company in all matters as are not by the Act or the Memorandum or these Articles required to be exercised by the members of the Company and in lieu of minutes of a meeting the sole director shall record in writing and sign a note or memorandum of all matters requiring a resolution of directors. Such a note or memorandum shall constitute sufficient evidence of such resolution for all purposes and the requirements of the Act and these Articles for a meeting shall be satisfied where the sole director passes a resolution in lieu of such meeting.
84. At every meeting of the directors the President shall preside as chairman of the meeting. If there is no President or if the President is not present at the meeting the Vice President shall preside. If there is no Vice President or if the Vice President is not present at the meeting the directors present shall choose some one of their number to be chairman of the meeting.
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85. The directors shall cause the following corporate records to be kept but which need not be maintained at the registered office of the Company:
(a) | minutes of all meetings of directors, members, Boards of directors, committees of officers and committees of members; |
(b) | copies of all resolutions consented to by directors, members, Boards of directors, committees of officers and committees of members; and |
(c) | such financial statements, accounts and records as the directors by resolution of directors consider necessary or desirable in order to reflect the financial position of the Company. |
86. The register of the Directors and Officers and the register of members shall be kept at the registered office of the Company along with such other records as the Minister responsible for Companies may by order prescribe.
87. The meetings and proceedings of each Board of directors consisting of 2 or more directors shall be governed mutatis mutandis by the provisions of these Articles regulating the proceedings of directors so far as the same are not superseded by any provisions in the resolution establishing the Board.
ALTERNATE DIRECTORS
88. Any Director may at any time appoint any person to be an alternate Director of the Company and may at any time remove any alternate Director so appointed by him. An alternate Director so appointed shall not be entitled to receive any remuneration from the Company but shall otherwise be subject to the provisions of these presents with regard to Directors. An alternate Director shall (subject to his giving to the Company an address at which notices may be served upon him) be entitled to receive notices of all meetings of the Board and to attend and vote as a Director at any such meeting at which the Director appointing him is not personally present and generally to perform all the functions of his appointor as a Director in the absence of such appointor.
89. An alternate Director shall ipso facto cease to be an alternate Director if his appointor ceases for any reason to be a Director. All appointments and removals of alternate Directors shall be effected in writing under the hand of the Director making or revoking such appointment and lodged with the Secretary at the Companys office. The name of each alternate Director shall be disclosed and notified to the Registrar General.
MANAGING DIRECTOR
90. The members in general meeting or the Directors may from time to time appoint one or more of the Directors to be a Managing Director or Managing Directors of the Company
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either for a fixed term or without any limitation as to the period for which he or they is or are to hold such office and may from time to time remove or dismiss him or them from office and appoint another or others in his or their place or places.
91. The remuneration of a Managing Director shall from time to time be fixed by the Directors and may be by way of salary or commission or participation in profits or by any or all of those modes.
92. The Directors may from time to time entrust to and confer upon a Managing Director for the time being such of the powers exercisable under these presents by the Directors as they think fit and may confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they think expedient; and they may confer such powers either collaterally with, or to the exclusion of, and in substitution for all or any of the powers of the Directors in that behalf; and may from time to time revoke, withdraw or vary all or any of such powers.
OFFICERS
93. The Company may by resolution of directors appoint officers of the Company at such times as shall be considered necessary or expedient. Such officers may consist of a President and one or more Vice-Presidents, Secretary and one or more Assistant Secretaries and Treasurer and such other officers as may from time to time be deemed desirable. Any number of offices may be held by the same person.
94. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by resolution of directors or resolution of members, but in the absence of any specific allocation of duties it shall be the responsibility of the President to preside at meetings of directors and members and to manage the day to day affairs of the Company, the Vice Presidents to act in order of seniority in the absence of the President but otherwise to perform such duties as may be delegated to them by the President, the Secretary to maintain the share register, minutes books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the Treasurer to be responsible for the financial affairs of the Company.
95. The emoluments of all officers shall be fixed by resolution of directors.
96. The officers of the Company shall hold office until their successors are duly elected and qualified, but any officer elected or appointed by the directors may be removed at any time, with or without cause, by resolution of directors. Any vacancy occurring in any office of the Company may be filled by resolution of directors. The directors may also revoke or vary a power previously given to an officer or agent.
CONFLICT OF INTERESTS
97. If the requirements of Articles 98 or 99 are satisfied, no agreement or transaction between the Company and one or more of its directors or liquidators, or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related,
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including as a director or liquidator of that other person, is void or voidable for this reason only or by reason only that the director or liquidator is present at the meeting of directors or liquidators or at the meeting of the committee of directors or liquidators that approves the agreement or transaction or that the vote or consent of the director or liquidator is counted for that purpose.
98. An agreement or transaction referred to in Article 97 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the other directors or liquidators; and |
(b) | the agreement or transaction is approved or ratified by a resolution of directors or liquidators that has been approved without counting the vote or consent of any interested director or liquidator or by the unanimous vote or consent of all disinterested directors or liquidators if the votes or consents of all disinterested directors or liquidators are insufficient to approve a resolution of directors or liquidators. |
99. An agreement or transaction referred to in Article 98 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the members entitled to vote at a meeting of members; and |
(b) | the agreement or transaction is approved or ratified by a resolution of members. |
100. A director or liquidator who has an interest in any particular business to be considered at a meeting of directors, liquidators or members may be counted for purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
101. Subject to Article 101 the Company may indemnify against all expenses including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who
(a) | is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, an officer or liquidator of the Company; or |
(b) | is or was, at the request of the Company, serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise. |
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102. Article 100 only applies to a person referred to in that Article if the person acted honestly and in good faith with a view to the best interests of the Company.
103. In the absence of any law to the contrary the decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests of the Company and as to whether the person had no reasonable cause to believe that his conduct was unlawful, is in the absence of fraud, sufficient for the purposes of these Articles, unless a question of law is involved.
104. The termination of any proceedings by any judgement, order, settlement, convictions or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not act honestly and in good faith and with a view to the best interests of the Company or that the person had reasonable cause to believe that his conduct was unlawful.
105. If a person to be indemnified has been successful in defence of any proceedings referred to in that Article the person is entitled to be indemnified against all expenses, including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred by the person in connection with the proceedings.
106. The Company may purchase and maintain insurance in relation to any person who is or was a director, an officer or a liquidator of the Company, or who at the request of the Company is or was serving as a director, an officer or a liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise, against any liability asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had the power to indemnify the person as provided in these Articles.
SEAL
107. The Company shall have a common seal and an imprint thereof shall be kept at the registered office of the Company. The directors shall provide for the safe custody of the Seal. The Seal when affixed to any written instrument shall be witnessed by a director or any other person so authorised from time to time by resolution of directors. The directors may provide for a facsimile of the Seal and of the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been signed as hereinbefore described. The Company may by resolution of directors authorise the adoption and use of one or more corporate seals for use outside the Commonwealth of the Bahamas.
DIVIDENDS
108. The Company may by a resolution of directors declare and pay dividends in money, shares, or other property.. In the event that dividends are paid in specie the directors shall have responsibility for establishing and recording in the resolution of directors authorising the dividends, a fair and proper value for the assets to be so distributed.
109. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the Company.
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110. The directors may, before declaring any dividend, set aside out of the profits of the Company such sum as they think proper as a reserve fund, and may invest the sum so set apart as a reserve fund upon such securities as they may select.
111. No dividend shall be declared and paid unless the directors determine that immediately after the payment of the dividend the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in its books of account, and its capital. In the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
112. Notice of any dividend that may have been declared shall be given to each member in manner hereinafter mentioned and all dividends unclaimed for 3 years after having been declared may be forfeited by resolution of directors for the benefit of the Company.
113. No dividend shall bear interest as against the Company and no dividend shall be paid on shares described in Article 21.
114. A share issued as a dividend by the Company shall be treated for all purposes as having been issued for money equal to the surplus that is transferred to capital upon the issue of the share.
115. In the case of a dividend of authorised but unissued shares with par value, an amount equal to the aggregate par value of the shares shall be transferred from surplus to capital at the time of the distribution.
116. In the case of a dividend of authorised but unissued shares without par value, the amount designated by the directors shall be transferred from surplus to capital at the time of the distribution, except that the directors must designate as capital an amount that is at least equal to the amount that the shares are entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
117. A division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class or series having a proportionately smaller par value does not constitute a dividend of shares.
RESERVES
118. The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve fund to meet contingencies or for equalising dividends or for special dividends or bonuses or the redemption of preference shares or for repairing, improving and maintaining any of the property of the Company and for such other purposes as the Directors shall in their absolute discretion think conducive to the interests of the Company and may invest the several sums so set aside upon such investments as they may think fit and from time to time deal with and vary such investments and dispose of all or any part thereof for the benefit of the Company and may divide the reserve fund into such special funds as they think fit and employ the reserve fund or any part thereof in the business if the Company and that without being bound to keep the same separate from the other assets.
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NOTICES
119. Any notice, information or written statement to be given by the Company to members must be served by mail addressed to each member at the address shown in the share register.
120. Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company.
121. Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was mailed in such time as to admit to its being delivered in the normal course of delivery within the period prescribed for service and was correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
122. The directors may establish and maintain or procure the establishment and maintenance of any non-contributors or contributory pension or superannuation funds for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments to any persons who are or were at any time in the employment or service of the Company or any company which is a subsidiary of the Company or is allied to or associated with the Company or with any such subsidiary, or who are or were at any time as aforesaid or who hold or held any salaried employment or office in the Company or such other company, or any persons in whose welfare the Company or any such other company as aforesaid is or has been at any time interested, and to the wives, widows, families and dependents of any such person and may make payments for or towards the insurance of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in conjunction with any such other company as aforesaid. Subject always to the proposal being approved by resolution of members, a director holding any such employment, or office shall be entitled to participate in and retain for his own benefit any such donation, gratuity, pension allowance or emolument.
ARBITRATION
123. Whenever any difference arises between the Company on the one hand and any of the members or their executors administrators or assigns on the other hand, touching the true intent and construction or the incidence or consequences of these Articles or of the Act, touching anything done or executed, omitted or suffered in pursuance of the Act or touching any breach or alleged breach or otherwise relating to the premises or to these Articles, or to any Act effecting the Company or to any of the affairs of the Company such difference shall, unless the parties agree to refer the same to a single arbitrator, be referred to two arbitrators one to be chosen by each of the parties to the difference and the arbitrators shall before entering on the reference appoint an umpire.
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124. If either party to the reference makes default in appointing an arbitrator either originally or by way of substitution (in the event that an appointed arbitrator shall die, be incapable of acting or refuse to act) for 10 days after the other party has given him notice to appoint the same, such other party may appoint an arbitrator to act in the place of the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
125. If the Company has never issued shares it may voluntarily commence to wind up and dissolve by resolution of directors.
126. If the Company has previously issued shares, it may voluntarily commence to wind up and dissolve by resolution of members or by resolution of directors.
CONTINUATION
127. The Company may by resolution of members or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the Commonwealth of the Bahamas in the manner provided under those laws.
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WE, McKINNEY NOMINEES LIMITED AND HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas, for the purpose of incorporating an International Business Company under the laws of the Commonwealth of the Bahamas, hereby subscribe our names to these Articles of Association the 1st day of November, 2006 in the presence of:
Subscribers
Paul D. Knowles (sgd)
Paul D. Knowles
Vice President
McKINNEY NOMINEES LIMITED
Paul D. Knowles (sgd)
Paul D. Knowles
Vice President
HUGHES COMPANY LIMITED
Witness:
Kendra Laidlaw (sgd)
Kendra Laidlaw
Mareva House
4 George Street
Nassau, Bahamas
Company Secretary
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COMMONWEALTH OF THE BAHAMAS
New Providence
Dated the 1st day of November, 2006
ARTICLES OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
M B & H Corporate Services Ltd.
Mareva House
4 George Street
Nassau, Bahamas
Exhibit T3A.23
THE COMMONWEALTH OF THE BAHAMAS
The International Business Companies Act 2000
Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
1. | The name of the Company is SHERRITT POWER (BAHAMAS) INC. |
2. | The registered office of the Company is situate at the offices of M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas. |
3. | The registered agent of the Company is M B & H Corporate Services Ltd., Mareva House, 4 George Street, Nassau, Bahamas. |
4. | The object or purpose for which the Company is established is to engage in any act or activity that is not prohibited under any law for the time being in force in The Commonwealth of the Bahamas. |
5. | In the absence of appropriate authorisation the Company may not: |
(a) | carry on banking or trust business as defined by the Banks and Trust Companies Regulation Act 2000; |
(b) | carry on business as an insurance or a reinsurance company; or |
(c) | carry on the business of providing corporate or financial services as defined by the Financial and Corporate Service Providers Act 2000. |
6. | The liability of the members is limited. |
7. | Shares in the Company shall be issued in the currency of the United States of America. |
8. | The authorised capital of the Company is Five thousand dollars (5,000) and is made up of one class of shares divided into Five thousand (5,000) shares of the par value of One dollar (1.00) each with one vote for each share. |
9. | The designations, powers, preferences, rights, qualifications, limitations and restrictions of each class and series of shares that the Company is authorised to issue shall be fixed by resolution of directors, but the directors shall not allocate different rights as to voting, dividends, redemption or distributions on liquidation unless the Memorandum of Association shall have been amended to create separate classes of shares and all the aforesaid rights as to voting, dividends, redemption and distributions shall be identified in each separate class. |
10. | The shares of the Company are to be issued as registered shares. |
11. | Registered Shares in the Company may be transferred subject to the prior or subsequent approval of the Company as evidenced by a resolution of directors. |
WE, McKINNEY NOMINEES LIMITED and HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas, for the purpose of incorporating an International Business Company under the laws of the Commonwealth of the Bahamas, hereby subscribe our names to this Memorandum of Association the 1st day of November, 2006 in the presence of:
Subscribers
Paul D. Knowles (sgd)
Paul D. Knowles
Vice President
McKINNEY NOMINEES LIMITED
Paul D. Knowles (sgd)
Paul D. Knowles
Vice President
HUGHES COMPANY LIMITED
Witness:
Kendra Laidlaw (sgd)
Kendra Laidlaw
Mareva House
4 George Street
Nassau, Bahamas
Company Secretary
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COMMONWEALTH OF THE BAHAMAS
New Providence
Dated the 1st day of November, 2006
MEMORANDUM OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
M B & H Corporate Services Ltd.
Mareva House,
4 George Street,
Nassau, Bahamas
Exhibit T3A.24
COMMONWEALTH OF THE BAHAMAS
A COMPANY LIMITED BY SHARES
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
SHERRITT UTILITIES INC.
(formerly SHERRITT POWER (BAHAMAS) INC.)
Name Changed: 9th January, 1998.
Incorporated on the 15th day of December 1997
under The International Business Companies Act
McKinney, Bancroft & Hughes
Attorneys-at-Law
Mareva House
4, George Street
Nassau, Bahamas
SHERRITT UTILITIES INC.
Certificate of Resolutions
(1) | that the authorised capital of the Company be increased from Five thousand (5,000) U.S. dollars divided into Five thousand (5,000) ordinary shares of One (1) U.S. dollar each to One hundred and Fifty million (150,000,000) U.S. dollars divided into One hundred and Fifty million (150,000,000) ordinary shares of the par value of One (1) U.S. dollar each; |
(2) | that the Memorandum of Association of the Company be amended by deleting Clause 8. and subsituting therefor the following: |
8. The authorised capital of the Company is One hundred and Fifty million (150,000,000) U.S. dollars divided into One hundred and Fifty million (150,000,000) ordinary shares of the par value of One (1) U.S. dollar each with one vote for each share.
I, Paul D. Knowles, Assistant Secretary of SHERRITT UTILITIES INC. hereby certify that the foregoing is a true copy of the Resolutions passed by the sole Director of the Company on the 3rd day of March, 1998.
AS WITNESS my hand and the seal of the company this 4th day of March, 1998
| ||
/s/ Paul D. Knowles | ||
Assistant Secretary | ||
COMMONWEALTH OF THE BAHAMAS IBC 05 No. 69,583 B SHERRITT UTILITIES INC FORMERLY SHERRITT POWER (BAHAMAS) INC. I, CEDRIC F. MOXEY ASST. , Registrar General of the Commonwealth of The Bahamas DO HEREBY CERTIFY pursuant to the International Business Companies Act (No. 2 of 1990) that SHERRITT UTILITIES INC. is incorporated in the Commonwealth of The Bahamas as an International Business Company and that the former name of the said company was SHERRITT POWER (BAHAMAS) INC. which name has now been changed this 9TH day of JANUARY 1998 to SHERRITT UTILITIES INC. Given under my hand and seal at Nassau in the Commonwealth of The Bahamas
69,583 B SHERRITT POWER (BAHAMAS) INC. CEDRIC F. MOXEY ASST R egistrar general of the Commanwealth of The Bahamas Do.Hereby Certify pursuant to the International Business Companies Act (No. 2 of l990) that all the requirements of the said act in respect of incorporation have been satisfied,and that SHERRITT POWER (BAHAMAS) INC. is incorporated in the commonwealth of The Bahamas as an Internatinal business company this 15TH day of DECEMBER 19 97 Given under my hand and seal at Nassau in the Comman-wealth of The bahamas ASST. REGISTRAR GENERAL
The International Business Companies Act
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
Preliminary
1. In these Articles, if not inconsistent with the subject or context, the words and expressions standing in the first column of the following table shall bear the meanings set opposite them respectively in the second column thereof.
Words |
Meanings | |
capital |
The sum of the aggregate par value of all outstanding shares with par value of the Company and shares with par value held by the Company as treasury shares plus
(a) the aggregate of the amounts designated as capital of all outstanding shares without par value of the Company and shares without par value held by the Company as treasury shares, and
(b) the amounts as are from time to time transferred from surplus to capital by a resolution of directors. | |
member |
A person who holds shares in the Company. | |
register of members |
Shall mean the share register. | |
person |
An individual, a corporation, a trust, the estate of a deceased individual, a partnership or an unincorporated association of persons. | |
resolution of directors |
(a) A Resolution approved at a duly constituted meeting of directors of the Company or of a committee of directors of the Company by the affirmative vote of a simple majority of the directors present who voted and did not abstain where the meeting was called on proper notice or, if on short notice, if those directors not present have waived notice; or
(b) a resolution consented to in writing by all directors or of all members of the committee, as the case may be. |
resolution of members |
(a) A resolution approved at a duly constituted meeting of the members of the Company by the affirmative vote of
(i) a simple majority of the votes of the shares which were present at the meeting and were voted and not abstained, or
(ii) a simple majority of the votes of each class or series of shares which were present at the meeting and entitled to vote thereon as a class or series and were voted and not abstained and of a simple majority of the votes of the remaining shares entitled to vote thereon which were present at the meeting and were voted and not abstained; or
(b) a resolution consented to in writing by
(i) an absolute majority of the votes of shares entitled to vote thereon, or
(ii) an absolute majority of the votes of each class or series of shares entitled to vote thereon as a class or series and of an absolute majority of the votes of the remaining shares entitled to vote thereon; | |
securities |
Shares and debt obligations of every kind, and options, warrants and rights to acquire shares, or debt obligations. | |
surplus |
The excess, if any, at the time of the determination of the total assets of the Company over the aggregate of its total liabilities, as shown in its books of account, plus the Companys capital. | |
the Memorandum |
The Memorandum of Association of the Company as originally framed or as from time to time amended. | |
the Act |
The International Business Companies Act 1989 (No. 2 of 1990). | |
the Seal |
The Common Seal of the Company. | |
these Articles |
These Articles of Association as originally framed or as from time to time amended. | |
treasury shares |
Shares in the Company that were previously issued but were repurchased, redeemed or otherwise acquired by the Company and not cancelled. |
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Written or any term of like import includes words typewritten, printed, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in a visible form, including telex, telegram, cable or other form of writing produced by electronic communication.
Save as aforesaid any words or expressions defined in the Act shall bear the same meaning in these Articles.
Whenever the singular or plural number, or the masculine, feminine or neuter gender is used in these Articles, it shall equally, where the context admits, include the others.
A reference in these Articles to voting in relation to shares shall be construed as a reference to voting by members holding the shares except that it is the votes allocated to the shares that shall be counted and not the number of members who actually voted and a reference to shares being present at a meeting shall be given a corresponding construction.
A reference to money in these Articles is a reference to the currency of the United States of America unless otherwise stated.
SHARES, AUTHORISED CAPITAL AND CAPITAL
2. The Company shall issue to every member holding shares in the Company a certificate either (a) under the signatures of two directors or officers or (b) under the seal and the signature of one director or officer specifying the share or shares held by him and the signature of the director or officer and the seal may be facsimiles.
3. Any member receiving a share certificate for shares shall indemnify and hold the Company and its directors and officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession thereof. If a share certificate for shares is worn out or lost it may be renewed on production of the worn out certificate or on satisfactory proof of its loss together with such indemnity as may be required by a resolution of directors.
4. If several persons are registered as joint holders of any shares, any one of such persons may give an effectual receipt for any dividend payable in respect of such shares.
5. Subject to the provisions of these Articles and any resolution of members the unissued shares of the Company shall be at the disposal of the directors who may without prejudice to any rights previously conferred on the holders of any existing shares or class or series of shares, offer, allot, grant options over or otherwise dispose of the shares to such persons, at such times and upon such terms and conditions as the Company may by resolution of directors determine.
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6. Shares in the Company shall be issued for money, services rendered, personal property, an estate in real property, a promissory note or other binding obligation to contribute money or property or any combination of the foregoing as shall be determined by a resolution of directors.
7. Shares in the Company may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine, except that in the case of shares with par value, the amount shall not be less than the par value, and in the absence of fraud the decision of the directors as to the value of the consideration received by the Company in respect of the issue is conclusive unless a question of law is involved. The consideration in respect of the shares constitutes capital to the extent of the par value and the excess constitutes surplus.
8. A share issued by the Company upon conversion of, or in exchange for, another share or a debt obligation or other security in the Company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the Company in respect of the other share, debt obligation or security.
9. Treasury shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with these Articles) as the Company may by resolution of directors determine.
10. The Company may issue fractions of a share and a fractional share shall have the same corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class or series of shares.
11. Upon the issue by the Company of a share without par value, the consideration in respect of the share constitutes capital to the extent designated by the directors and the excess constitutes surplus, except that the directors must designate as capital an amount of the consideration that is at least equal to the amount that the share is entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
12. The Company may purchase, redeem or otherwise acquire and hold its own shares but no purchase, redemption or other acquisition which shall constitute a reduction in capital shall be made otherwise than in compliance with Articles 28 and 29.
13. Shares that the Company purchases, redeems or otherwise acquires pursuant to Article 12 may be cancelled or held as treasury shares unless the shares are purchased, redeemed or otherwise acquired out of capital and would otherwise infringe upon the requirements of Articles 28 and 29, or to the extent that such shares are in excess of 80 percent of the issued shares of the Company in which case they shall be cancelled but they shall be available for reissue. Upon the cancellation of a share, the amount included as capital of the Company with respect to that share shall be deducted from the capital of the Company.
14. Where shares in the Company are held by the Company as treasury shares or are held by another company of which the Company holds, directly or indirectly, shares having more than 50 percent of the votes in the election of directors of the other company, such shares of the Company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for any purpose except for purposes of determining the capital of the Company.
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15. No invitation shall be issued to the public by the Company or the directors for the time being thereof to subscribe for any shares or debentures of the Company.
16. No notice of a trust, whether expressed, implied or constructive, shall be entered in the share register.
TRANSFER OF SHARES
17. Subject to any limitations in the Memorandum, registered shares in the Company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, but in the absence of such written instrument of transfer the directors may accept such evidence of a transfer of shares as they consider appropriate. The Directors may decline to register any transfer of shares without assigning any reason therefor.
18. The Company shall not be required to treat a transferee of a registered share in the Company as a member until the transferees name has been entered in the share register.
19. Subject to the approval of the Directors, the Company must on the application of the transferor or transferee of a registered share in the Company enter in the share register the name of the transferee of the share save that the registration of transfers may be suspended and the share register closed at such times and for such periods as the Company may from time to time by resolution of Directors determine provided always that such registration shall not be suspended and the share register closed for more than 60 days in any period of 12 months.
TRANSMISSION OF REGISTERED SHARES
20. The executor or administrator of a deceased member, the guardian of an incompetent member or the trustee of a bankrupt member shall be the only person recognized by the Company as having any title to his share but they shall not be entitled to exercise any rights as a member of the Company until they have proceeded as set forth in the next following two Articles.
21. Any person becoming entitled by operation of law or otherwise to a share or shares in consequence of the death, incompetence or bankruptcy of any member may be registered as a member upon such evidence being produced as may reasonably be required by the directors. An application by any such person to be registered as a member shall for all purposes be deemed to be a transfer of shares of the deceased, incompetent or bankrupt member and the directors shall treat it as such.
22. Any person who has become entitled to a share or shares in consequence of the death, incompetence or bankruptcy of any member may, instead of being registered himself, request in writing that some person to be named by him be registered as the transferee of such share or shares and such request shall likewise be treated as if it were a transfer.
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23. What amounts to incompetence on the part of a person is a matter to be determined by the court having regard to all the relevant evidence and the circumstances of the case.
BEARER SHARES
24. (1) | The Directors may issue bearer shares and upon any issue of bearer shares the Directors shall issue share certificates to be called bearer share certificates in respect of all the bearer shares issued which have been fully paid provided that the Directors shall in no case issue more than one bearer share certificate in respect of any one bearer share but otherwise may issue as many bearer share certificates as they may determine. Bearer shares and bearer share certificates shall be issued on the following terms and conditions. |
(a) | Except as hereinafter provided, the bearer of a bearer share certificate shall be deemed to be a member of the Company and shall be entitled to the same privileges and advantages as he would have had if his name had been included in the Register of Members of the Company as holder of the shares comprised in the certificate. |
(b) | No person being the bearer of a bearer share certificate shall be entitled (i) to sign a requisition calling a meeting or to give notice of intention to submit a resolution to a meeting or (ii) to attend or vote by himself or his proxy or exercise any privilege as a member at a meeting, unless he shall, in the first case, before or at the time of lodging such requisition or giving such notice of intention as aforesaid, or, in the second case, three days at least before the day fixed for the meeting, have deposited the certificate at the registered office of the Company or at such other place appointed by the Directors, and unless the Certificate shall remain so deposited until after the meeting or any adjournment thereof shall have been held. |
(c) | Not more than one name shall be received as that of the bearer of a bearer share certificate. |
(d) | To any person so depositing a bearer share certificate there shall be delivered a voucher subscribed by a director or the Secretary stating the name and address of that person and describing the shares included in |
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the certificate so deposited, and bearing the date of issue of the voucher, and such voucher shall entitle him, or his proxy duly appointed to attend and vote at any general meeting held within three months from date of the voucher in the same way as if he were the registered holder of the shares specified in the voucher. |
(e) | Upon delivery of the voucher to the Company the bearer of the voucher shall be entitled to receive forthwith the bearer share certificate in respect of which the voucher was given. |
(f) | The bearer of a bearer share certificate shall not, save as provided in sub-paragraph (b) above, be entitled to exercise any right as a member, unless (if called upon by any director or the Secretary so to do) he produces the certificate and states his name and address. |
(g) | The shares comprised in a bearer share certificate shall be transferred by the delivery of the certificate without any written transfer and without registration, and the provisions herein contained with reference to the transfer of and the lien of the Company on shares shall not apply. |
(h) | Upon surrender of his bearer share certificate to the Company for cancellation, the bearer shall be entitled to have his name entered as a member in the Register of Members in respect of the shares comprised in the certificate, but the Company shall in no case be responsible for any loss or damage incurred by any person by reason of the Company entering in the Register upon the surrender of any bearer share certificate the name of any person not the true and lawful owner of such certificate. |
(i) | Any notice to be given by the Company to the holder of bearer share certificates shall be deemed duly given by one publication in the Official Gazette of the Commonwealth of the Bahamas or by one advertisement in the Nassau Guardian newspaper. |
(2) | Any person being the holder of shares in respect of which his name is entered in the Register of Members may apply in writing to the Directors to have his share converted into bearer shares, and upon producing to the Directors his share certificate and upon providing such affidavit, statutory declaration or other evidence of authentication as the Directors may require and upon paying such of the expenses incurred by the Company in the matter as the Directors may determine, such person shall be entitled to be issued with one or more bearer share certificates in the same manner and on the same terms and |
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conditions as set out in paragraph (1) of this regulation. Upon issue of bearer share certificate in accordance with this regulation the Directors shall strike the name of the person to whom it has been issued from the Register of Members as if he had ceased to be a member and shall enter in the Register the details. |
REDUCTION OR INCREASE IN AUTHORISED CAPITAL OR CAPITAL
25. The Company may by a resolution of directors amend the Memorandum to increase or reduce its authorised capital and in connection therewith the Company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any such shares or effect any combination of the foregoing.
26. The Company may amend the Memorandum to
(a) | divide the shares, including issued shares of a class or series into a larger number of shares of the same class or series; or |
(b) | combine the shares, including issued shares, of a class or series into a smaller number of shares of the same class or series, provided, however, that where shares are divided or combined under (a) or (b) of this Article, the aggregate par value of the new shares must be equal to the aggregate par value of the original shares. |
27. The capital of the Company may by a resolution of directors be increased by transferring an amount of the surplus of the Company to capital, and, subject to the provisions of Articles 28 and 29 the capital of the Company may be reduced by transferring an amount of the capital of the Company to surplus.
28. No reduction of capital shall be effected that reduces the capital of the Company to an amount that immediately after the reduction is less than the aggregate par value of all outstanding shares with par value and all shares with par value held by the Company as treasury shares and the aggregate of the amounts designated as capital of all outstanding shares without par value and all shares without par value held by the Company as treasury shares that are entitled to a preference, if any, in the assets of the Company upon liquidation of the Company.
29. No reduction of capital shall be effected unless the directors determine that immediately after the reduction the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and that the realizable assets of the Company will not be less than its total liabilities, other than deferred taxes, as shown in the books of the Company and its remaining capital, and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
30. Where the Company reduces its capital under Article 25 the Company may
(a) | return to its members any amount received by the Company upon the issue of any of its shares; |
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(b) | purchase, redeem or otherwise acquire its shares out of capital; or |
(c) | cancel any capital that is lost or not represented by assets having a realizable value. |
BORROWING POWERS
31. The Directors may from time to time, at their discretion, raise or borrow or secure the payment of any sum or sums of money for the purposes of the Company.
32. The Directors may raise or secure the payment or repayment of such money in such manner and upon such terms and conditions in all respects as they think fit and in particular by the issue of bonds, mortgages, debentures or debenture stock perpetual or otherwise, notes or other obligations of the Company charged upon all or any part of the property of the Company (both present and future).
33. Debentures, debenture stock and other securities may be made assignable, free from any equities, between the Company and the person to whom the same may be issued.
MEETINGS AND CONSENTS OF MEMBERS
34. The directors of the Company may convene meetings of the members of the Company at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors consider necessary or desirable.
35. Upon the written request of members holding 50 percent or more of the outstanding voting shares in the Company the directors shall convene a meeting of members.
36. The directors shall give not less than 7 days notice of meetings of members to those persons whose names on the date the notice is given appear as members in the share register of the Company except in the case of members holding shares issued to bearer notice shall be given in accordance with Article 108.
37. A meeting of members held in contravention of the requirement in Article 36 is valid
(a) | if members holding not less than 50 percent of the total number of shares entitled to vote on all matters to be considered at the meeting, or 90 percent of the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with not less than a 90 percent majority of the remaining votes, have agreed to shorter notice of the meeting, or |
(b) | if all members holding shares entitled to vote on all or any matters to be considered at the meeting have waived notice of the meeting and for this purpose presence at the meeting shall be deemed to constitute waiver. |
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38. The inadvertent failure of the directors to give notice of a meeting to a member, or the fact that a member has not received notice, does not invalidate the meeting.
39. A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
40. The instrument appointing a proxy shall be produced at the place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
41. An instrument appointing a proxy shall be in substantially the following form or such other form as the Chairman of the meeting shall accept as properly evidencing the wishes of the member appointing the proxy.
(Name of Company)
I/We being a member of the above Company with shares HEREBY APPOINT of or failing him of to be my/our proxy to vote for me/us at the meeting of members to be held on the day of and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this day of
Member |
42. The following shall apply in respect of joint ownership of shares:
(a) | if two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may speak as a member; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners, and |
(c) | if two or more of the joint owners are present in person or by proxy they must vote as one. |
43. A member shall be deemed to be present at a meeting of members if he participates by telephone or other electronic means and all members participating in the meeting are able to hear each other and recognise each others voice. A resolution in writing, in one or more parts, signed by all the members for the time being shall be as valid and effectual as if it had been passed at a General Meeting duly called and constituted.
44. A meeting of members is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 50 percent of the votes of the shares or class or series of shares entitled to vote on resolutions of members to be considered at the meeting. If a quorum be present, notwithstanding the fact that such quorum may be represented by only one person then such person may resolve any matter and a
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certificate signed by such person accompanied where such person be a proxy by a copy of the proxy form shall constitute a valid resolution of members.
45. If within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the next business day at the same time and place or to such other time and place as the directors may determine, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the resolutions to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
46. At every meeting of members, the President shall preside as Chairman of the meeting. If there is no President or if the President is not present at the meeting, the members present shall choose some one of their number to be the Chairman. If the members are unable to choose a chairman for any reason, then the person representing the greatest number of voting shares present in person or by prescribed form of proxy at the meeting shall preside as chairman failing which the oldest individual member or representative of a member present shall take the chair.
47. The Chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, 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.
48. At any meeting of the members the Chairman shall be responsible for deciding in such manner as he shall consider appropriate whether any resolution has been carried or not and the result of his decision shall be announced to the meeting and recorded in the minutes thereof. If the Chairman shall have any doubt as to the outcome of any resolution put to vote, he shall cause a poll to be taken of all votes cast upon such resolution, but if the Chairman shall fail to take a poll then any member present in person or by proxy who disputes the announcement by the Chairman of the result of any vote may immediately following such announcement demand that a poll be taken and the Chairman shall thereupon cause a poll to be taken. If a poll is taken at any meeting, the result thereof shall be duly recorded in the minutes of that meeting by the Chairman.
49. Any person other than an individual shall be regarded as one member and subject to Article 50 the right of any individual to speak for or represent such member shall be determined by the law of the jurisdiction where, and by the documents by which, the person is constituted or derives its existence. In case of doubt, the directors may in good faith seek legal advice from any qualified person and unless and until a court of competent jurisdiction shall otherwise rule the directors may rely and act upon such advice without incurring any liability to any member.
50. Any person other than an individual which is a member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of
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members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the person which he represents as that person could exercise if it were an individual member of the Company.
51. The chairman of any meeting at which a vote is cast by proxy or on behalf of any person other than an individual may call for a notarially certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes cast by such proxy or on behalf of such person shall be disregarded.
52. Directors of the Company may attend and speak at any meeting of members of the Company and at any separate meeting of the holders of any class or series of shares in the Company.
DIRECTORS
53. The first directors of the Company shall be elected by the subscribers to the Memorandum; and thereafter, subject to Article 58, the directors shall be elected by the members for such term as the members determine.
54. The minimum number of directors shall be one and the maximum number shall be seven.
55. Each director shall hold office until his successor takes office or until his earlier death, resignation or removal.
56. A director may be removed from office, with or without cause, by a resolution of members.
57. A director may resign his office by giving written notice of his resignation to the Company and the resignation shall have effect from the date the notice is received by the Company or from such later date as may be specified in the notice.
58. The Directors shall have power at any time, and from time to time, to appoint any other qualified person as a director, either to fill a casual vacancy or as an addition to the Board, so that the total number of Directors shall not at any time exceed the maximum number fixed by these Articles.
59. With the prior or subsequent approval by a resolution of members, the directors may, by a resolution of directors, fix the emoluments of directors with respect to services to be rendered in any capacity to the Company.
60. A director shall not require a share qualification, and may be an individual or a company.
POWERS OF DIRECTORS
61. The business and affairs of the Company shall be managed by the directors who may pay all expenses incurred preliminary to and in connection with the formation and registration of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or these
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Articles required to be exercised by the members of the Company, subject to any delegation of such powers as may be authorised by these Articles and to such requirements as may be prescribed by a resolution of members; but no requirement made by a resolution of members shall prevail if it be inconsistent with these Articles nor shall such requirement invalidate any prior act of the directors which would have been valid if such requirement had not been made.
62. The directors may, by a resolution of directors, appoint any person, including a person who is a director, to be an officer or agent of the Company.
63. Every officer or agent of the Company has such powers and authority of the directors, including the power and authority to affix the Seal, as are set forth in these Articles or in the resolution of directors appointing the officer or agent, except that no officer or agent has any power or authority with respect to fixing the emoluments of directors.
64. Any director which is a body corporate may appoint any person its duly authorised representative for the purpose of representing it at meetings of the Board of Directors or with respect to unanimous written consents.
65. The continuing directors may act notwithstanding any vacancy in their body, save that if their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum for a meeting of directors, the continuing directors or director may act only for the purpose of appointing directors to fill any vacancy that has arisen or summoning a meeting of members.
66. All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company, shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by resolution of directors.
PROCEEDINGS OF DIRECTORS
67. The directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the Commonwealth of the Bahamas as the directors may determine to be necessary or desirable.
68. A director shall be deemed to be present at a meeting of directors if he participates by telephone or other electronic means and all directors participating in the meeting are able to hear each other and recognise each others voice. A resolution in writing, in one or more parts, signed by all the Directors, shall be as valid and effectual as if it had been passed at a Meeting of the Directors duly called and constituted.
69. A director shall be given not less than 7 days notice of meetings of directors, but a meeting of directors held without 7 days notice having been given to all directors shall be valid if all the directors entitled to vote at the meeting who do not attend, waive notice of the meeting. The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, does not invalidate the meeting.
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70. A meeting of directors is duly constituted for all purposes if at the commencement of the meeting there are present in person or by alternate two directors.
71. If the Company shall have only one director the provisions herein contained for meetings of the directors shall not apply but such sole director shall have full power to represent and act for the Company in all matters as are not by the Act or the Memorandum or these Articles required to be exercised by the members of the Company and in lieu of minutes of a meeting shall record in writing and sign a note or memorandum of all matters requiring a resolution of directors. Such a note or memorandum shall constitute sufficient evidence of such resolution for all purposes.
72. At every meeting of the directors the President shall preside as chairman of the meeting. If there is no President or if the President is not present at the meeting the Vice President shall preside. If there is no Vice President or if the Vice President is not present at the meeting the directors present shall choose some one of their number to be chairman of the meeting.
73. The directors shall cause the following corporate records to be kept:
(a) | minutes of all meetings of directors, members, committees of directors, committees of officers and committees of members; |
(b) | copies of all resolutions consented to by directors, members, committees of directors, committees of officers and committees of members; and |
(c) | such other accounts and records as the directors by resolution of directors consider necessary or desirable in order to reflect the financial position of the Company. |
74. The register of the Directors and Officers and the register of members or a copy thereof shall be kept at the registered office of the Company.
75. The directors may, by a resolution of directors, designate one or more committees, each consisting of one or more directors.
76. The Directors may delegate any of their powers to committees each consisting of two or more members of their body as they think fit. Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may from time to time be made or imposed upon it by the Directors.
77. The meetings and proceedings of each committee of directors consisting of 2 or more directors shall be governed mutatis mutandis by the provisions of these Articles regulating the proceedings of directors so far as the same are not superseded by any provisions in the resolution establishing the committee.
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ALTERNATE DIRECTORS
78. Any Director may at any time appoint any person to be an alternate Director of the Company and may at any time remove any alternate Director so appointed by him. An alternate Director so appointed shall not be entitled to receive any remuneration from the Company but shall otherwise be subject to the provisions of these presents with regard to Directors. An alternate Director shall (subject to his giving to the Company an address at which notices may be served upon him) be entitled to receive notices of all meetings of the Board and to attend and vote as a Director at any such meeting at which the Director appointing him is not personally present and generally to perform all the functions of his appointor as a Director in the absence of such appointor. An alternate Director shall ipso facto cease to be an alternate Director if his appointor ceases for any reason to be a Director. All appointments and removals of alternate Directors shall be effected in writing under the hand of the Director making or revoking such appointment and lodged with the Secretary at the Companys office.
MANAGING DIRECTOR
79. The members in general meeting or the Directors may from time to time appoint one or more of the Directors to be a Managing Director or Managing Directors of the Company either for a fixed term or without any limitation as to the period for which he or they is or are to hold such office and may from time to time remove or dismiss him or them from office and appoint another or others in his or their place or places.
80. The remuneration of a Managing Director shall from time to time be fixed by the Directors and may be by way of salary or commission or participation in profits or by any or all of those modes.
81. The Directors may from time to time entrust to and confer upon a Managing Director for the time being such of the powers exercisable under these presents by the Directors as they think fit and may confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they think expedient; and they may confer such powers either collaterally with, or to the exclusion of, and in substitution for all or any of the powers of the Directors in that behalf; and may from time to time revoke, withdraw or vary all or any of such powers.
OFFICERS
82. The Company may by resolution of directors appoint officers of the Company at such times as shall be considered necessary or expedient. Such officers may consist of a President and one or more Vice-Presidents, Secretary and one or more Assistant Secretaries and Treasurer and such other officers as may from time to time be deemed desirable. Any number of offices may be held by the same person.
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83. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by resolution of directors or resolution of members, but in the absence of any specific allocation of duties it shall be the responsibility of the President to preside at meetings of directors and members and to manage the day to day affairs of the Company, the Vice Presidents to act in order of seniority in the absence of the President but otherwise to perform such duties as may be delegated to them by the President, the Secretary to maintain the share register, minutes books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the Treasurer to be responsible for the financial affairs of the Company.
84. The emoluments of all officers shall be fixed by resolution of directors.
85. The officers of the Company shall hold office until their successors are duly elected and qualified, but any officer elected or appointed by the directors may be removed at any time, with or without cause, by resolution of directors. Any vacancy occurring in any office of the Company may be filled by resolution of directors.
CONFLICT OF INTERESTS
86. If the requirements of Articles 87 or 88 are satisfied, no agreement or transaction between the Company and one or more of its directors or liquidators, or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related, including as a director or liquidator of that other person, is void or voidable for this reason only or by reason only that the director or liquidator is present at the meeting of directors or liquidators or at the meeting of the committee of directors or liquidators that approves the agreement or transaction or that the vote or consent of the director or liquidator is counted for that purpose.
87. An agreement or transaction referred to in Article 86 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the other directors or liquidators; and |
(b) | the agreement or transaction is approved or ratified by a resolution of directors or liquidators that has been approved without counting the vote or consent of any interested director or liquidator or by the unanimous vote or consent of all disinterested directors or liquidators if the votes or consents of all disinterested directors or liquidators are |
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insufficient to approve a resolution of directors or liquidators. |
88. An agreement or transaction referred to in Article 86 is valid if
(a) | the material facts of the interest of each director or liquidator in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the members entitled to vote at a meeting of members; and |
(b) | the agreement or transaction is approved or ratified by a resolution of members. |
89. A director or liquidator who has an interest in any particular business to be considered at a meeting of directors, liquidators or members may be counted for purposes of determining whether the meeting is duly constituted.
INDEMNIFICATION
90. Subject to Article 91 the Company may indemnify against all expenses including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who
(a) | is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, an officer or liquidator of the Company; or |
(b) | is or was, at the request of the Company, serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise. |
91. Article 90 only applies to a person referred to in that Article if the person acted honestly and in good faith with a view to the best interests of the Company and, in the case of criminal proceedings, the person had no reasonable cause to believe that his conduct was unlawful.
92. The decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests of the Company and as to whether the person had no reasonable cause to believe that his conduct was unlawful, is in the absence of fraud, sufficient for the purposes of these Articles, unless a question of law is involved.
93. The termination of any proceedings by any judgement, order, settlement, convictions or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not
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act honestly and in good faith and with a view to the best interests of the Company or that the person had reasonable cause to believe that his conduct was unlawful.
94. If a person referred to in Article 90 has been successful in defence of any proceedings referred to in that Article the person is entitled to be indemnified against all expenses, including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred by the person in connection with the proceedings.
95. The Company may purchase and maintain insurance in relation to any person who is or was a director, an officer or a liquidator of the Company, or who at the request of the Company is or was serving as a director, an officer or a liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise, against any liability asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had the power to indemnify the person against the liability under Article 90.
SEAL
96. The directors shall provide for the safe custody of the Seal. The Seal when affixed to any written instrument shall be witnessed by a director or any other person so authorised from time to time by resolution of directors. The directors may provide for a facsimile of the Seal and of the signature of any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been signed as hereinbefore described. The Company may by resolution of directors authorise the adoption and use of one or more corporate seals for use outside the Commonwealth of the Bahamas.
DIVIDENDS
97. The Company may by a resolution of directors declare and pay dividends in money, shares, or other property but dividends shall only be declared and paid out of surplus. In the event that dividends are paid in specie the directors shall have responsibility for establishing and recording in the resolution of directors authorising the dividends, a fair and proper value for the assets to be so distributed.
98. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the Company.
99. The directors may, before declaring any dividend, set aside out of the profits of the Company such sum as they think proper as a reserve fund, and may invest the sum so set apart as a reserve fund upon such securities as they may select.
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100. No dividend shall be declared and paid unless the directors determine that immediately after the payment of the dividend the Company will be able to satisfy its liabilities as they become due in the ordinary course of its business and the realizable value of the assets of the Company will not be less than the sum of its total liabilities, other than deferred taxes, as shown in its books of account, and its capital. In the absence of fraud, the decision of the directors as to the realizable value of the assets of the Company is conclusive, unless a question of law is involved.
101. Notice of any dividend that may have been declared shall be given to each member in manner hereinafter mentioned and all dividends unclaimed for 3 years after having been declared may be forfeited by resolution of directors for the benefit of the Company.
102. No dividend shall bear interest as against the Company and no dividend shall be paid on shares described in Article 14.
103. A share issued as a dividend by the Company shall be treated for all purposes as having been issued for money equal to the surplus that is transferred to capital upon the issue of the share.
104. In the case of a dividend of authorised but unissued shares with par value, an amount equal to the aggregate par value of the shares shall be transferred from surplus to capital at the time of the distribution.
105. In the case of a dividend of authorised but unissued shares without par value, the amount designated by the directors shall be transferred from surplus to capital at the time of the distribution, except that the directors must designate as capital an amount that is at least equal to the amount that the shares are entitled to as a preference, if any, in the assets of the Company upon liquidation of the Company.
106. A division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class or series having a proportionately smaller par value does not constitute a dividend of shares.
RESERVES
107. The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve fund to meet contingencies or for equalising dividends or for special dividends or bonuses or the redemption of preference shares or for repairing, improving and maintaining any of the property of the Company and for such other purposes as the Directors shall in their absolute discretion think conducive to the interests of the Company and may invest the several sums so set aside upon such investments as they may think fit and from time to time deal with and vary such investments and dispose of all or any part thereof for the benefit of the Company and may divide the reserve fund into such special funds as they think fit and employ
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the reserve fund or any part thereof in the business of the Company and that without being bound to keep the same separate from the other assets.
NOTICES
108. Any notice, information or written statement to be given by the Company to members must be served in the case of members holding registered shares by mail addressed to each member at the address shown in the share register and in the case of members holding shares issued to bearer by publishing such notice, information or written statement in a newspaper circulated in the Commonwealth of the Bahamas and a newspaper circulated in the place where the Company has its principal office.
109. Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company.
110. Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was mailed in such time as to admit to its being delivered in the normal course of delivery within the period prescribed for service and was correctly addressed and the postage was prepaid.
PENSION AND SUPERANNUATION FUNDS
111. The directors may establish and maintain or procure the establishment and maintenance of any non-contributors or contributory pension or superannuation funds for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments to any persons who are or were at any time in the employment or service of the Company or any company which is a subsidiary of the Company or is allied to or associated with the Company or with any such subsidiary, or who are or were at any time as aforesaid or who hold or held any salaried employment or office in the Company or such other company, or any persons in whose welfare the Company or any such other company as aforesaid is or has been at any time interested, and to the wives, widows, families and dependents of any such person and may make payments for or towards the insurance of any such persons as aforesaid, and may do any of the matters aforesaid either alone or in conjunction with any such other company as aforesaid. Subject always to the proposal being approved by resolution of members, a director holding any such employment, or office shall be entitled to participate in and retain for his own benefit any such donation, gratuity, pension allowance or emolument.
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ARBITRATION
112. Whenever any difference arises between the Company on the one hand and any of the members or their executors administrators or assigns on the other hand, touching the true intent and construction or the incidence or consequences of these Articles or of the Act, touching anything done or executed, omitted or suffered in pursuance of the Act or touching any breach or alleged breach or otherwise relating to the premises or to these Articles, or to any Act effecting the Company or to any of the affairs of the Company such difference shall, unless the parties agree to refer the same to a single arbitrator, be referred to two arbitrators one to be chosen by each of the parties to the difference and the arbitrators shall before entering on the reference appoint an umpire.
113. If either party to the reference makes default in appointing an arbitrator either originally or by way of substitution (in the event that an appointed arbitrator shall die, be incapable of acting or refuse to act) for 10 days after the other party has given him notice to appoint the same, such other party may appoint an arbitrator to act in the place of the arbitrator of the defaulting party.
VOLUNTARY WINDING UP AND DISSOLUTION
114. If the Company has never issued shares it may voluntarily commence to wind up and dissolve by resolution of directors.
115. If the Company has previously issued shares, it may voluntarily commence to wind up and dissolve by resolution of members or by resolution of directors.
CONTINUATION
116. The Company may by resolution of members or by a resolution passed unanimously by all directors of the Company continue as a company incorporated under the laws of a jurisdiction outside the Commonwealth of the Bahamas in the manner provided under those laws.
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WE, McKINNEY NOMINEES LIMITED AND HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas, for the purpose of incorporating an International Business Company under the laws of the Commonwealth of The Bahamas, hereby subscribe our names to these Articles of Association the 15th day of December, 1997 in the presence of:
Subscribers
PAUL D. KNOWLES (sgd.) | GLORIA JEAN FORBES (sgd.) | |||
Paul D. Knowles | Gloria Jean Forbes | |||
Vice-President | Assistant Secretary |
McKINNEY NOMINEES LIMITED
PAUL D. KNOWLES (sgd.) | GLORIA JEAN FORBES (sgd.) | |||
|
| |||
Paul D. Knowles | Gloria Jean Forbes | |||
Vice-President | Assistant Secretary |
HUGHES COMPANY LIMITED
Witness:
|
||||
M. M. KNOWLES (sgd.) |
| |||
M. M. Knowles | COMMONWEALTH OF THE BAHAMAS | |||
Mareva House | ||||
4 George Street | Registrar Generals Department | |||
Nassau, Bahamas
Company Secretary |
I certify the foregoing to be a true copy, of the original document, | |||
/s/ Cedric F. Moxey | ||||
Cedric F. Moxey | ||||
Asst. Registrar General | ||||
December 15th, 1997 |
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COMMONWEALTH OF THE BAHAMA
New Providence.
Dated the 15th day of December, 1997.
ARTICLES OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
McKinney, Bancroft & Hughes
Attorneys-at-Law
Chambers
Nassau, Bahamas
Exhibit T3A.25
COMMONWEALTH OF THE BAHAMAS
A COMPANY LIMITED BY SHARES
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
SHERRITT UTILITIES INC.
(formerly SHERRITT POWER (BAHAMAS) INC.)
Name Changed: 9th January, 1998.
Incorporated on the 15th day of December 1997
under The International Business Companies Act
McKinney, Bancroft & Hughes
Attorneys-at-Law
Mareva House
4, George Street
Nassau, Bahamas
No 69 583 B
SHERRITT UTILITIES INC.
Certificate of Resolutions
(1) | that the authorised capital of the Company be increased from Five thousand (5,000) U.S. dollars divided into Five thousand (5,000) ordinary shares of One (1) U.S. dollar each to One hundred and Fifty million (150,000,000) U.S. dollars divided into One hundred and Fifty million (150,000,000) ordinary shares of the par value of One (1) U.S. dollar each; |
(2) | that the Memorandum of Association of the Company be amended by deleting Clause 8. and subsituting therefor the following: |
8. The authorised capital of the Company is One hundred and Fifty million (150,000,000) U.S. dollars divided into One hundred and Fifty million (150,000,000) ordinary shares of the par value of One (1) U.S. dollar each with one vote for each share.
I, Paul D. Knowles, Assistant Secretary of SHERRITT UTILITIES INC. hereby certify that the foregoing is a true copy of the Resolutions passed by the sole Director of the Company on the 3rd day of March, 1998.
|
|
AS WITNESS my hand and the seal of the Company this 4th day of March, 1998.
/s/ Paul D. Knowles Assistant Secretary | ||||||
COMMONWEALTH OF THE BAHAMAS IBC 05 THE INTERNATIONAL BUSINESS COMPANIES ACT (1990) (Section 11) CERTIFICATE OF INCORPORATION (Change of Name) No. 69,583 B SHERRITT UTILITIES INC. FORMERLY SHERRITT POWER (BAHAMAS) INC. I, CEDRIC F. MOXEY ASST., Registrar General of the Commonwealth of The Bahamas DO HEREBY CERTIFY pursuant to the International Business Companies Act (No. 2 of 1990) that SHERRITT UTILITIES INC. is incorporated in the Commonwealth of The Bahamas as an International Business Company and that the former name of the said company was SHERRITT POWER (BAHAMAS) INC. which name has now been changed this 9TH day of JANUARY 1998 Given under my hand and seal at Nassau in the Commonwealth of The Bahamas ASST. Registrar General to SHERRITT UTILITIES INC.
Commonwealth of The Bahamas The International Business Companies Act (No. 2 of 1990) Certificate of Incorporation (Section 11 and 12) No. 69,583 B SHERRITT POWER (BAHAMAS) INC. I CEDRIC F. MOXEY .. ASST. Registrar General of the Commonwealth of The Bahamas Do Hereby Certify pursuant to the International Business Companies Acts (No. 2 of 1990) that all the requirements of the said Act in respect of incorporation have been satisfied, and that SHERRITT POWER (BAHAMAS) INC. is incorporated in the Commonwealth of The Bahamas as an International Business Company this 15TH day of DECEMBER 1997 Given under my hand and seal at Nassau in the Commonwealth of The Bahamas ASST. REGISTRAR GENERAL
The International Business Companies Act
Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
1. The name of the Company is SHERRITT POWER (BAHAMAS) INC.
2. The registered office of the Company will be situate in the Chambers of Messrs. McKinney, Bancroft & Hughes, Mareva House, 4 George Street, Nassau, Bahamas.
3. The registered agent of the Company will be Messrs. McKinney, Bancroft & Hughes, Mareva House, 4 George Street, Nassau, Bahamas.
4. The object or purpose for which the Company is established is to engage in any act or activity that is not prohibited under any law for the time being in force in The Commonwealth of the Bahamas.
5. (1) The Company may not
(a) | carry on business with persons resident in the Commonwealth of the Bahamas; |
(b) | own an interest in real property situate in the Commonwealth of the Bahamas, other than a lease referred to in paragraph (e) of subclause (2) of this clause; |
(c) | carry on banking or trust business as defined by the Banks and Trust Companies Regulation Act; |
(d) | carry on business as an insurance or a reinsurance company; or |
(e) | carry on the business of providing the registered office for companies. |
(2) | For the purposes of paragraph (a) of subclause (1) of this clause, the Company shall not be treated as carrying on business with persons resident in the Commonwealth of the Bahamas if: |
(a) | it makes or maintains deposits with a person carrying on business within the Commonwealth of the Bahamas; |
(b) | it makes or maintains professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or other similar persons carrying on business within the Commonwealth of the Bahamas; |
(c) | it prepares or maintains books and records within the Commonwealth of the Bahamas;. |
(d) | it holds, within the Commonwealth of the Bahamas, meetings of its directors or members; |
(e) | it holds a lease of property for use as an office from which to communicate with members or where books and records of the company are prepared or maintained; |
(f) | it holds shares, debt obligations or other securities in a company incorporated under this Act or under the Companies Act; or |
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(g) | shares, debt obligations or other securities in the company are owned by any person resident in the Commonwealth of the Bahamas or by any company incorporated under this Act or under the Companies Act. |
(h) | it conducts any of its operations with a person without knowing or having reasonable cause to believe that such person is a person resident in the Bahamas. |
6. The liability of the members is limited.
7. Shares in the Company shall be issued in the currency of the United States of America.
8. The authorised capital of the Company is Five thousand (5,000) U.S. dollars and is made up of one class of shares divided into Five thousand (5,000) shares of the par value of One (1) U.S. dollar each with one vote for each share.
9. The designations, powers, preferences, rights, qualifications, limitations and restrictions of each class and series of shares that the Company is authorised to issue shall be fixed by resolution of directors, but the directors shall not allocate different rights as to voting, dividends, redemption or distributions on liquidation unless the Memorandum of Association shall have been amended to create separate classes of shares and all the aforesaid rights as to voting, dividends, redemption and distributions shall be identified in each separate class.
10. The directors of the Company are to be granted authority to issue shares as registered shares or to bearer as they may determine by resolution of the directors.
11. In the event that shares are issued to bearer such shares may be exchanged for registered shares and the registered shares may be exchanged for shares issued to bearer.
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12. In the event that shares are issued to bearer, a required notice shall be properly served on the members holding shares issued to bearer if the notice, information or written statement is published in a newspaper circulated in the Commonwealth of the Bahamas and a newspaper circulated in the place where the Company has its principal office.
13. Registered shares in the Company may be transferred subject to the prior or subsequent approval of the Company as evidenced by a resolution of directors or by a resolution of members.
14. The Company may amend its Memorandum of Association and Articles of Association by a resolution of members or by a resolution of directors.
WE, McKINNEY NOMINEES LIMITED and HUGHES COMPANY LIMITED, both of Mareva House, 4 George Street, Nassau, Bahamas, for the purpose of incorporating an International Business Company under the laws of the Commonwealth of the Bahamas, hereby subscribe our names to this Memorandum of Association the 15th day of December, 1997 in the presence of:
Subscribers
PAUL D. KNOWLES (sgd.) |
GLORIA JEAN FORBES (sgd.) | |
Paul D. Knowles | Gloria Jean Forbes | |
Vice-President | Assistant Secretary |
McKINNEY NOMINEES LIMITED
PAUL D. KNOWLES (sgd.) |
GLORIA JEAN FORBES (sgd.) | |
Paul D. Knowles | Gloria Jean Forbes | |
Vice-President | Assistant Secretary |
HUGHES COMPANY LIMITED
Witness: |
M. M. KNOWLES (sgd.) |
M. M. Knowles |
Mareva House 4 George Street |
Nassau, Bahamas |
Company Secretary |
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COMMONWEALTH OF THE BAHAMAS
New Providence.
Dated the 15th day of December, 1997.
MEMORANDUM OF ASSOCIATION
OF
SHERRITT POWER (BAHAMAS) INC.
McKinney, Bancroft & Hughes
Attorneys-at-Law
Chambers
Nassau, Bahamas
Exhibit T3A.26
FORM 19 | ||||
COMPANY NO. 41089 |
COMPANIES ACT OF BARBADOS
CERTIFICATE OF CONTINUANCE
SHERRITT UTILITIES INC.
Name of Company
I hereby certify that the above-mentioned Company was continued, as set out in the attached Articles of Continuance, under section 356.2. (1) of the Companies Act.
Exhibit T3A.27
For Ministry Use Only A Iusage exclusif du ministère |
Ontario Corporation Number Numéro de la société en Ontario
1736242 |
ARTICLES OF INCORPORATION STATUTS CONSTITUTIFS | ||||||
Form 1 Business Corporations Act |
1. The name of the corporation is: (Set out in BLOCK CAPITAL LETTERS) Dénomination sociale de la société : (Écrire en LETTRES MAJUSCULES SEULEMENT) | |||||
SI FINANCE LTD. |
||||||
Formule 1 Loi sur les sociétés par actions |
2. The address of the registered office is: Adresse du siège social: | |||||
1133 Yonge Street, 5th Floor | ||||||
(Street & Number or R.R. Number & if Multi-Office Building give Room No.) | ||||||
(Rue et numéro ou numéro de la R.R. et, sil sagit dun édificé à bureaux, numéro du bureau) | ||||||
Toronto |
ONTARIO M4T2Y7 | |||||
(Name of Municipality or Post Office) |
(Postal Code) | |||||
(Nom de la municipalité ou du bureau de poste) |
(Code postal) |
3. Number (or minimum and maximum number) of directors is/are: |
minimum/minimal |
maximum/maximal | ||||
Nombre (ou nombres minimal et maximal) dadministrateurs : |
1 | 10 |
4. The first director(s) is/are: Premier(s) administrateur(s):
First name, middle names and surname Prénom, autres Prénoms et nom de famille |
Address for service, giving Street & No. or R.R. No., Municipality, Province, Country and Postal Code Domicile élu, y compris la rue et le numéro, le numéro de la R.R. ou le nom de la municipalite, la province, le pays et le code postal |
Resident Canadian? Yes or No Résident canadien? Oui/Non | ||||||
Stephen Jaggers |
79 Wellington Street West, Suite 3000, T-D Centre, Toronto, Ontario M5K 1N2 | Yes |
1
5. Restrictions, if any, on business the corporation may carry on or on powers the corporation may exercise. Limites, sil y a lieu, imposées aux activités commerciales ou aux pouvoirs de la société. | ||
None | ||
6. The classes and any maximum number of shares that the corporation is authorized to issue: Catégories et nombre maximal, sil y a lieu, dactions que la société est autorisée à émettre : | ||
an unlimited number of common shares |
2
7. Rights, privileges, restrictions and conditions (if any) attaching to each class of shares and directors authority with respect to any class of shares which may be issued in series: | ||
Droits, privilèges, restrictions et conditions, sil y a lieu, rattachés à chaque catégorie dactions et pouvoirs des administrateurs relatifs à chaque catégorie dactions qui peut être émise en série : | ||
N/A |
3
8. The issue, transfer or ownership of shares is/is not restricted and the restrictions (if any) are as follows: Lémission, le transfert ou la propriété dactions est/nest pas restreint. Les restrictions, sil y a lieu, sont les suivantes :
The transfer of securities (other than non-convertible debt securities) of the Corporation shall be restricted in that no securityholder shall be entitled to transfer any such security or securities without either:
(a) the approval of the directors of the Corporation expressed by a resolution passed at a meeting of the board of directors or by an instrument or instruments in writing signed by a majority of the directors; or
(b) the approval of the holders of at least a majority of the shares of the Corporation entitling the holders thereof to vote in all circumstances (other than holders of shares who are entitled to vote separately as a class) for the time being outstanding expressed by a resolution passed at a meeting of the holders of such shares or by an instrument or instruments in writing signed by the holders of a majority of such shares. |
4
9. Other provisions if any: Autres dispositions, sil y a lieu : | ||
None |
5
10. The names and addresses of the incorporators are: Noms et adresses des fondateurs : |
||||
First name, middle names and surname or corporate name Prénom, autres prénoms et nom de famille ou dénomination sociale |
Full address for service or address of registered office or of principal place of business giving street & No. or R.R. No., municipality and postal code Domicile élu au complet, adresse du siége social ou adresse de létablissement principal, y compris la rue et le numéro ou le numéro de la R.R., le nom de la municipalité et le code postal | |||
Stephen Jaggers |
79 Wellington Street West, Suite 3000, T-D Centre, Toronto, Ontario M5K 1N2 | |||
These articles are signed in duplicate. Les présents statuts sont signés en double exemplaire. |
||||
Signatures of incorporator(s) / Signatures des fondateurs | ||||
/s/ Stephen Jaggers Stephen Jaggers |
6
Exhibit T3A.28
Company Number: 08583618
The Companies Act 2006
PRIVATE COMPANY LIMITED BY SHARES
ARTICLES
OF ASSOCIATION
SIC Marketing Services (UK) Limited
Incorporated on 25th June 2013
Intertrust (UK) Limited
www.intertrustgroup.com
THE COMPANIES ACT 2006
PRIVATE COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION OF
SIC Marketing Services (UK) Limited
1. | PRELIMINARY |
1.1 | The model articles of association for private companies limited by shares contained in Schedule 1 to the Companies (Model Articles) Regulations 2008 (SI 2008 No. 3229) (the Model Articles) shall apply to the Company save in so far as they are excluded or modified hereby and such Model Articles and the articles set out below shall be the Articles of Association of the Company (the Articles). |
1.2 | In these Articles, any reference to a provision of the Companies Act 2006 shall be deemed to include a reference to any statutory modification or re-enactment of that provision for the time being in force. |
1.3 | Model Articles 7(2), 9(2), 14, 19(5), 21, 24, 26(5), 28(3), 36(4) and 44(4) do not apply to the Company. |
1.4 | The headings used in these Articles are included for the sake of convenience only and shall be ignored in construing the language or meaning of these Articles. |
1.5 | In these Articles, unless the context otherwise requires, references to nouns in the plural form shall be deemed to include the singular and vice versa, references to one gender include all genders and references to persons include bodies corporate and unincorporated associations. |
2. | DEFINED TERMS |
2.1 | Model Article 1 shall be varied by the inclusion of the following definitions:- |
appointor has the meaning given in Article 7.1;
call has the meaning given in Article 10.1;
call notice has the meaning given in Article 10.1;
call payment date has the meaning given in Article 10.4;
forfeiture notice has the meaning given in Article 10.4;
lien enforcement notice has the meaning given in Article 9.4;
relevant rate has the meaning given in Article 10.4;
secretary means the secretary of the Company, if any, appointed in accordance with Article 6.1 or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary; and
working day means a day that is not a Saturday or Sunday, Christmas Day, Good Friday or any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where the Company is registered.
3. | PROCEEDINGS OF DIRECTORS |
3.1 | Subject to Article 3.2, notwithstanding the fact that a proposed decision of the directors concerns or relates to any matter in which a director has, or may have, directly or indirectly, any kind of interest whatsoever, that director may participate in the decision-making process for both quorum and voting purposes. |
3.2 | If the directors propose to exercise their power under section 175(4)(b) of the Companies Act 2006 to authorise a directors conflict of interest, the director facing the conflict is not to be counted as participating in the decision to authorise the conflict for quorum or voting purposes. |
3.3 | Subject to the provisions of the Companies Act 2006, and provided that (if required to do so by the said Act) he has declared to the directors the nature and extent of any direct or indirect interest of his, a director, notwithstanding his office:- |
(a) | may be a party to or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise interested; |
(b) | may be a director or other officer or an employee of, or a party to any transaction or arrangement with, or otherwise interested in, any subsidiary of the Company or body corporate in which the Company is interested; and |
(c) | is not accountable to the Company for any remuneration or other benefits which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no transaction or arrangement is liable to be avoided on the ground of any such remuneration, benefit or interest. |
4. | UNANIMOUS DECISIONS |
4.1 | Model Article 8(2) shall be amended by the deletion of the words copies of which have been signed by each eligible director and the substitution of the following where each eligible director has signed one or more copies of it in its place. Model Article 8(2) shall be read accordingly. |
5. | TERMINATION OF DIRECTORS APPOINTMENT |
5.1 | In addition to the events terminating a directors appointment set out in Model Article 18, a person ceases to be a director as soon as that person has for more than six consecutive months been absent without permission of the directors from meetings of directors held during that period and the directors make a decision to vacate that persons office. |
6. | SECRETARY |
6.1 | The directors may appoint a secretary to the Company for such period, for such remuneration and upon such conditions as they think fit; and any secretary so appointed by the directors may be removed by them. |
7. | ALTERNATE DIRECTORS |
7.1 (a) | Any director (the appointor) may appoint as an alternate any other director, or any other person approved by a decision of the directors, to:- |
(i) | exercise that directors powers; and |
(ii) | carry out that directors responsibilities. |
in relation to the taking of decisions by the directors in the absence of the alternates appointor.
(b) | Any appointment or removal of an alternate must be effected by notice in writing to the Company signed by the appointor, or in any other manner approved by the directors. The notice must:- |
(i) | identify the proposed alternate; and |
(ii) | in the case of a notice of appointment, contain a statement signed by the proposed alternate that he is willing to act as the alternate of his appointor. |
7.2 (a) | An alternate director has the same rights to participate in any directors meeting or decision of the directors reached in accordance with Model Article 8, as the alternates appointor. |
(b) | Except as these Articles specify otherwise, alternate directors:- |
(i) | are deemed for all purposes to be directors; |
(ii) | are liable for their own acts or omissions; |
(iii) | are subject to the same restrictions as their appointors; and |
(iv) | are not deemed to be agents of or for their appointors. |
(c) | A person who is an alternate director but not a director:- |
(i) | may be counted as participating for the purposes of determining whether a quorum is participating (but only if that persons appointor is not participating); and |
(ii) | may sign or otherwise signify his agreement in writing to a written resolution in accordance with Model Article 8 (but only if that persons appointor has not signed or otherwise signified his agreement to such written resolution). |
No alternate may be counted as more than one director for such purposes.
(d) | An alternate director is not entitled to receive any remuneration from the Company for serving as an alternate director except such part of the remuneration payable to that alternates appointor as the appointor may direct by notice in writing made to the Company. |
(e) | Model Article 20 is modified by the deletion of each of the references to directors and the replacement of each such reference with directors and/or any alternate directors. |
7.3 | An alternate directors appointment as an alternate terminates:- |
(a) | when his appointor revokes the appointment by notice to the Company in writing specifying when it is to terminate; |
(b) | on the occurrence in relation to the alternate of any event which, if it occurred in relation to the alternates appointor would result in the termination of the appointors office as director; |
(c) | on the death of his appointor; or |
(d) | when his appointors appointment as a director terminates. |
8. | ISSUE OF SHARES |
8.1 | Shares may be issued as nil, partly or fully paid. |
8.2 (a) | Unless the members of the Company by special resolution direct otherwise, all shares which the directors propose to issue must first be offered to the members in accordance with the following provisions of this Article. |
(b) | Shares must be offered to members in proportion as nearly as may be to the number of existing shares held by them respectively. |
(c) | The offer shall be made by notice specifying the number of shares offered, and limiting a period (not being less than 14 days) within which the offer, if not accepted, will be deemed to be declined. |
(d) | After the expiration of the period referred to in (c) above, those shares so deemed to be declined shall be offered in the proportion aforesaid to the persons who have, within the said period, accepted all the shares offered to them; and such further offer shall be made in the like terms in the same manner and limited by a like period as the original offer. |
(e) | Any shares not accepted pursuant to the offer referred to in (c) and the further offer referred to in (d) or not capable of being offered as aforesaid except by way of fractions and any shares released from the provisions of this Article by any such special resolution as aforesaid shall be under the control of the directors, who may allot, grant options over or dispose of the same to such persons, on such terms, and in such manner as they think fit. |
8.3 | In accordance with section 567 of the Companies Act 2006, sections 561 and 562 of the said Act are excluded. |
9. | LIEN |
9.1 | The Company has a first and paramount lien on all shares (whether or not such shares are fully paid) standing registered in the name of any person indebted or under any liability to the Company, whether he is the sole registered holder thereof or is one of two or more joint holders, for all moneys payable by him or his estate to the Company (whether or not such moneys are presently due and payable). |
9.2 | The Companys lien over shares:- |
(a) | takes priority over any third partys interest in such shares; and |
(b) | extends to any dividend or other money payable by the Company in respect of such shares and (if the Companys lien is enforced and such shares are sold by the Company) the proceeds of sale of such shares. |
9.3 | The directors may at any time decide that a share which is or would otherwise be subject to the Companys lien shall not be subject to it, either wholly or in part. |
9.4 (a) | Subject to the provisions of this Article, if:- |
(i) | a notice of the Companys intention to enforce the lien (lien enforcement notice) has been sent in respect of the shares; and |
(ii) | the person to whom the lien enforcement notice was sent has failed to comply with it, |
the Company may sell those shares in such manner as the directors decide.
(b) | A lien enforcement notice:- |
(i) | may only be sent in respect of shares if a sum is payable to the Company by the sole registered holder or one of two or more joint registered holders of such shares and the due date for payment of such sum has passed; |
(ii) | must specify the shares concerned; |
(iii) | must include a demand for payment of the sum payable within 14 days; |
(iv) | must be addressed either to the holder of such shares or to a person entitled to such shares by reason of the holders death, bankruptcy or otherwise; and |
(v) | must state the Companys intention to sell the shares if the notice is not complied with. |
(c) | If shares are sold under this Article:- |
(i) | the directors may authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser; and |
(ii) | the transferee is not bound to see to the application of the consideration, and the transferees title is not affected by any irregularity in or invalidity of the process leading to the sale. |
(d) | The net proceeds of any such sale (after payment of the costs of sale and any other costs of enforcing the lien) must be applied:- |
(i) | first, in payment of so much of the sum for which the lien exists as was payable at the date of the lien enforcement notice; and |
(ii) | second, in payment to the person entitled to the shares at the date of the sale, but only after the certificate for the shares sold has been surrendered to the company for cancellation or a suitable indemnity has been given for any lost certificates, and subject to a lien equivalent to the companys lien over the shares before the sale for any money payable in respect of the shares after the date of the lien enforcement notice. |
(e) | A statutory declaration by a director or the secretary that the declarant is a director or the secretary and that a share has been sold to satisfy the Companys lien on a specified date:- |
(i) | is conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share; and |
(ii) | subject to compliance with any other formalities of transfer required by these Articles or by law, constitutes a good title to the share. |
10. | CALLS ON SHARES AND FORFEITURE |
10.1 (a) | Subject to these Articles and the terms on which shares are allotted, the directors may send a notice (a call notice) to a member requiring the member to pay the Company a specified sum of money (a call) which is payable in respect of shares which that member holds at the date when the directors decide to send the call notice. |
(b) | A call notice:- |
(i) | may not require a member to pay a call which exceeds the total sum unpaid on that members shares (whether as to the shares nominal value or any amount payable to the Company by way of premium); |
(ii) | must state when and how any call to which it relates is to be paid; and |
(iii) | may permit or require the call to be paid by instalments. |
(c) | A member must comply with the requirements of a call notice, but no member is obliged to pay any call before 14 days have passed since the call notice was sent. |
(d) | Before the Company has received any call due under a call notice the directors may:- |
(i) | revoke it wholly or in part; or |
(ii) | specify a later time for payment than is specified in the call notice, |
by a further notice in writing to the member in respect of whose shares the call was made.
10.2 (a) | Liability to pay a call is not extinguished or transferred by transferring the shares in respect of which the call is required to be paid. |
(b) | Joint holders of a share are jointly and severally liable to pay all calls in respect of that share. |
(c) | Subject to the terms on which shares are allotted, the directors may, when issuing shares, make arrangements for a difference between the holders in the amounts and times of payment of calls on their shares. |
10.3 (a) | A call notice need not be issued in respect of sums which are specified, in the terms on which a share is allotted, as being payable to the Company in respect of that share (whether in respect of nominal value or premium):- |
(i) | on allotment; |
(ii) | on the occurrence of a particular event; or |
(iii) | on a date fixed by or in accordance with the terms of issue. |
(b) | But if the due date for payment of such a sum has passed and it has not been paid, the holder of the share concerned is treated in all respects as |
having failed to comply with a call notice in respect of that sum, and is liable to the same consequences as regards the payment of interest and forfeiture. |
10.4 (a) | If a person is liable to pay a call and fails to do so by the call payment date:- |
(i) | the directors may send a notice of forfeiture (a forfeiture notice) to that person; and |
(ii) | until the call is paid, that person must pay the Company interest on the call from the call payment date at the relevant rate. |
(b) | For the purposes of this Article:- |
(i) | the call payment date is the date on which the call notice states that a call is payable, unless the directors give a notice specifying a later date, in which case the call payment date is that later date; and |
(ii) | the relevant rate is the rate fixed by the terms on which the share in respect of which the call is due was allotted or, if no such rate was fixed when the share was allotted, five percent per annum. |
(c) | The relevant rate must not exceed by more than five percentage points the base lending rate most recently set by the Monetary Policy Committee of the Bank of England in connection with its responsibilities under Part 2 of the Bank of England Act 1998. |
(d) | The directors may waive any obligation to pay interest on a call wholly or in part. |
10.5 | A forfeiture notice:- |
(a) | may be sent in respect of any share in respect of which a call has not been paid as required by a call notice; |
(b) | must be sent to the holder of that share or to a person entitled to it by reason of the holders death, bankruptcy or otherwise; |
(c) | must require payment of a call and any accrued interest by a date which is not less than 14 days after the date of the forfeiture notice; |
(d) | must state how the payment is to be made; and |
(e) | must state that if the forfeiture notice is not complied with, the shares in respect of which the call is payable will be liable to be forfeited. |
10.6 | If a forfeiture notice is not complied with before the date by which payment of the call is required in the forfeiture notice, the directors may decide that any share in respect of which it was given is forfeited and the forfeiture is to include all dividends or other moneys payable in respect of the forfeited shares and not paid before the forfeiture. |
10.7 (a) | Subject to the following provisions of this Article 10.7, the forfeiture of a share extinguishes:- |
(i) | all interests in that share, and all claims and demands against the Company in respect of it; and |
(ii) | all other rights and liabilities incidental to the share as between the person in whose name the share is registered and the Company. |
(b) | Any share which is forfeited:- |
(i) | is deemed to have been forfeited when the directors decide that it is forfeited; |
(ii) | is deemed to be the property of the Company; and |
(iii) | may be sold, re-allotted or otherwise disposed of as the directors think fit. |
(c) | If a persons shares have been forfeited:- |
(i) | the Company must send that person notice that forfeiture has occurred and record it in the register of members; |
(ii) | that person ceases to be a member in respect of those shares; |
(iii) | that person must surrender the certificate for the shares forfeited to the Company for cancellation; |
(iv) | that person remains liable to the Company for all sums due and payable by that person at the date of forfeiture in respect of those shares, including any interest (whether accrued before or after the date of forfeiture); and |
(v) | the directors may waive payment of such sums wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal. |
(d) | At any time before the Company disposes of a forfeited share, the directors may decide to cancel the forfeiture on such terms as they think fit. |
10.8 (a) | If a forfeited share is to be disposed of by being transferred, the Company may receive the consideration for the transfer and the directors may authorise any person to execute the instrument of transfer. |
(b) | A statutory declaration by a director or the secretary that the declarant is a director or the secretary and that a share has been forfeited on a specified date:- |
(i) | is conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share; and |
(ii) | subject to compliance with any other formalities of transfer required by these Articles or by law, constitutes a good title to the share. |
(c) | A person to whom a forfeited share is transferred is not bound to see to the application of the consideration (if any) nor is that persons title to the share affected by any irregularity in or invalidity of the process leading to the forfeiture or transfer of the share. |
(d) | If the company sells a forfeited share, the person who held it prior to its forfeiture is entitled to receive from the Company the proceeds of such sale, net of any commission, and excluding any amount which:- |
(i) | was, or would have become, payable; and |
(ii) | had not, when that share was forfeited, been paid by that person in respect of that share, |
but no interest is payable to such a person in respect of such proceeds and the Company is not required to account for any money earned on them.
10.9 (a) | A member may surrender any share:- |
(i) | in respect of which the directors may issue a forfeiture notice; |
(ii) | which the directors may forfeit; or |
(iii) | which has been forfeited. |
(b) | The directors may accept the surrender of any such share. |
(c) | The effect of surrender on a share is the same as the effect of forfeiture on that share. |
(d) | A share which has been surrendered may be dealt with in the same way as a share which has been forfeited. |
11. | SHARE CERTIFICATES |
11.1 (a) | The Company must issue each member with one or more certificates in respect of the shares which that member holds. |
(b) | Except as is otherwise provided in these Articles, all certificates must be issued free of charge. |
(c) | No certificate may be issued in respect of shares of more than one class. |
(d) | A member may request the Company, in writing, to replace:- |
(i) | the members separate certificates with a consolidated certificate; or |
(ii) | the members consolidated certificate with two or more separate certificates. |
(e) | When the Company complies with a request made by a member under (d) above, it may charge a reasonable fee as the directors decide for doing so. |
11.2 (a) | Every certificate must specify:- |
(i) | in respect of how many shares, of what class, it is issued; |
(ii) | the nominal value of those shares; |
(iii) | whether the shares are nil, partly or fully paid; and |
(iv) | any distinguishing numbers assigned to them. |
(b) | Certificates must:- |
(i) | have affixed to them the Companys common seal; or |
(ii) | be otherwise executed in accordance with the Companies Acts. |
12. | CONSOLIDATION OF SHARES |
12.1 (a) | This Article applies in circumstances where:- |
(i) | there has been a consolidation of shares; and |
(ii) | as a result, members are entitled to fractions of shares. |
(b) | The directors may:- |
(i) | sell the shares representing the fractions to any person including the Company for the best price reasonably obtainable; and |
(ii) | authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser. |
(c) | Where any holders entitlement to a portion of the proceeds of sale amounts to less than a minimum figure determined by the directors, that members portion may be distributed to an organisation which is a charity for the purposes of the law of England and Wales, Scotland or Northern Ireland. |
(d) | A person to whom shares are transferred is not obliged to ensure that any purchase money is received by the person entitled to the relevant fractions. |
(e) | The transferees title to the shares is not affected by any irregularity in or invalidity of the process leading to their sale. |
13. | DIVIDENDS |
13.1 (a) | Except as otherwise provided by these Articles or the rights attached to the shares, all dividends must be:- |
(i) | declared and paid according to the amounts paid up on the shares on which the dividend is paid; and |
(ii) | apportioned and paid proportionately to the amounts paid up on the shares during any portion or portions of the period in respect of which the dividend is paid. |
(b) | If any share is issued on terms providing that it ranks for dividend as from a particular date, that share ranks for dividend accordingly. |
(c) | For the purpose of calculating dividends, no account is to be taken of any amount which has been paid up on a share in advance of the due date for payment of that amount. |
14. | CAPITALISATION OF PROFITS |
14.1 | A capitalised sum which was appropriated from profits available for distribution may be applied:- |
(a) | in or towards paying up any amounts unpaid on any existing nil or partly paid shares held by the persons entitled; or |
(b) | in paying up new debentures of the Company which are then allotted credited as fully paid to the persons entitled or as they may direct. |
14.2 | Model Article 36(5)(a) is modified by the deletion of the words paragraphs (3) and (4) and their replacement with Model Article 36(3) and Article 14.1. |
15. | WRITTEN RESOLUTIONS OF MEMBERS |
15.1 (a) | Subject to Article 15.1(b), a written resolution of members passed in accordance with Part 13 of the Companies Act 2006 is as valid and effectual as a resolution passed at a general meeting of the Company. |
(b) | The following may not be passed as a written resolution and may only be passed at a general meeting:- |
(i) | a resolution under section 168 of the Companies Act 2006 for the removal of a director before the expiration of his period of office; and |
(ii) | a resolution under section 510 of the Companies Act 2006 for the removal of an auditor before the expiration of his period of office. |
15.2 (a) | Subject to Article 15.2(b), on a written resolution, a member has one vote in respect of each share held by him. |
(b) | No member may vote on a written resolution unless all moneys currently due and payable in respect of any shares held by him have been paid. |
16. | NOTICE OF GENERAL MEETINGS |
16.1 (a) | Every notice convening a general meeting of the Company must comply with the provisions of:- |
(i) | section 311 of the Companies Act 2006 as to the provision of information regarding the time, date and place of the meeting and the general nature of the business to be dealt with at the meeting; and |
(ii) | section 325(1) of the Companies Act 2006 as to the giving of information to members regarding their right to appoint proxies. |
(b) | Every notice of, or other communication relating to, any general meeting which any member is entitled to receive must be sent to each of the directors and to the auditors (if any) for the time being of the Company. |
17. | QUORUM AT GENERAL MEETINGS |
17.1 (a) | If and for so long as the Company has one member only who is entitled to vote on the business to be transacted at a general meeting, that member present at the meeting in person or by one or more proxies or, in the event that the member is a corporation, by one or more corporate representatives, is a quorum. |
(b) | If and for so long as the Company has two or more members entitled to vote on the business to be transacted at a general meeting, two of such members, each of whom is present at the meeting in person or by one or more proxies or, in the event that any member present is a corporation, by one or more corporate representatives, are a quorum. |
(c) | Model Article 41(1) is modified by the addition of a second sentence as follows:- |
If, at the adjourned general meeting, a quorum is not present within half an hour from the time appointed therefor or, alternatively, a quorum ceases to be present, the adjourned meeting shall be dissolved..
18. | VOTING AT GENERAL MEETINGS |
18.1 (a) | Subject to Article 18.2 below, on a vote on a resolution at a general meeting on a show of hands:- |
(i) | each member who, being an individual, is present in person has one vote; |
(ii) | if a member (whether such member is an individual or a corporation) appoints one or more proxies to attend the meeting, all proxies so appointed and in attendance at the meeting have, collectively, one vote; and |
(iii) | if a corporate member appoints one or more persons to represent it at the meeting, each person so appointed and in attendance at the meeting has, subject to section 323(4) of the Companies Act 2006, one vote. |
(b) | Subject to Article 18.2 below, on a resolution at a general meeting on a poll, every member (whether present in person, by proxy or authorised representative) has one vote in respect of each share held by him. |
18.2 | No member may vote at any general meeting or any separate meeting of the holders of any class of shares in the Company, either in person, by proxy or, in the event that the member is a corporation, by corporate representative in respect of shares held by that member unless all moneys currently due and payable by that member in respect of any shares held by that member have been paid. |
18.3 (a) | Model Article 44(2) is amended by the deletion of the word or in Model Article 44(2)(c), the deletion of the . after the word resolution in Model Article 44(2)(d) and its replacement with ; or and the insertion of a new Model Article 44(2)(e) in the following terms:- |
by a member or members holding shares conferring a right to vote at the meeting being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all shares conferring that right.
(b) | A demand for a poll made by a person as proxy for a member is the same as a demand made by the member. |
18.4 | Polls must be taken at the general meeting at which they are demanded and in such manner as the chairman directs. |
19. | DELIVERY OF PROXY NOTICES |
19.1 | Model Article 45(1) is modified, such that a proxy notice (as defined in Model Article 45(1)) and any authentication of it demanded by the directors must be received at an address specified by the Company in the proxy notice not less than 48 hours before the time for holding the meeting or adjourned meeting at which the proxy appointed pursuant to the proxy notice proposes to vote; and any proxy notice received at such address less than 48 hours before the time for holding the meeting or adjourned meeting shall be invalid. |
20. | COMMUNICATIONS |
20.1 | Subject to the provisions of the Companies Act 2006, a document or information may be sent or supplied by the Company to a person by being made available on a website. |
20.2 (a) | A member whose registered address is not within the United Kingdom and who gives to the Company an address within the United Kingdom at which notices may be sent to him or an address to which notices may be sent by electronic means is entitled to have notices sent to him at that address, but otherwise no such member is entitled to receive any notices from the Company. |
(b) | If any share is registered in the name of joint holders, the Company may send notices and all other documents to the joint holder whose name stands first in the register of members in respect of the joint holding and the Company is not required to serve notices or other documents on any of the other joint holders. |
20.3 (a) | If the Company sends or supplies notices or other documents by first class post and the Company proves that such notices or other documents were properly addressed, prepaid and posted, the intended recipient is deemed to have received such notices or other documents 48 hours after posting. |
(b) | If the Company sends or supplies notices or other documents by electronic means and the Company proves that such notices or other documents were properly addressed, the intended recipient is deemed to have received such notices or other documents 24 hours after they were sent or supplied. |
(c) | If the Company sends or supplies notices or other documents by means of a website, the intended recipient is deemed to have received such notices or other documents when such notices or other documents first appeared on the website or, if later, when the intended recipient first received notice of the fact that such notices or other documents were available on the website. |
(d) | For the purposes of this Article 20.3, no account shall be taken of any part of a day that is not a working day. |
21. | COMPANY SEALS |
21.1 | Model Article 49(1) is modified, such that any common seal of the Company may be used by the authority of the directors or any committee of directors. |
21.2 | Model Article 49(3) is modified by the deletion of all words which follow the , after the word document and their replacement with the document must also be signed by:- |
(a) | one authorised person in the presence of a witness who attests the signature; or |
(b) | two authorised persons. |
22. | TRANSMISSION OF SHARES |
22.1 | Model Article 27 is modified by the addition of new Model Article 27(4) in the following terms:- |
Nothing in these Articles releases the estate of a deceased member from any liability in respect of a share solely or jointly held by that member.
22.2 | All the Articles relating to the transfer of shares apply to:- |
(a) | any notice in writing given to the Company by a transmittee in accordance with Model Article 28(1); and |
(b) | any instrument of transfer executed by a transmittee in accordance with Model Article 28(2), |
as if such notice or instrument were an instrument of transfer executed by the person from whom the transmittee derived rights in respect of the share, and as if the event which gave rise to the transmission had not occurred.
23. | WINDING UP |
23.1 | If the Company is wound up, the liquidator may, with the sanction of a special resolution of the Company and any other sanction required by law, divide among the members in specie the whole or any part of the assets of the Company 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 sanction, vest the whole or any part of the assets in trustees upon such trusts for the benefit of the members as he may determine, but no member shall be compelled to accept any assets upon which there is a liability. |
24. | SHARE TRANSFERS |
24.1 (a) | Model Article 26(1) is modified by the addition of the words and, if any of the shares is nil or partly paid, the transferee after the word transferor. |
(b) | The directors may refuse to register the transfer of a share, and, if they do so, the instrument of transfer must be returned to the transferee together with a notice of refusal giving reasons for such refusal as soon as practicable and in any event within two months after the date on which the instrument of transfer was lodged for registration, unless the directors suspect that the proposed transfer may be fraudulent. |
The model articles of association for private companies limited by shares as contained in Schedule 1 to The Companies (Model Articles) Regulations 2008 (SI 2008 No. 3229) apply to the company save in so far as they are excluded or modified. These model articles of association for private companies limited by shares are reprinted without the index below.
Companies Act 2006
Model Articles
Private Company Limited by Shares
Exhibit T3A.29
copy of the Memorandum of Association lodged at Companies House
(with the addition of address and number of shares subscribed for)
COMPANY HAVING A SHARE CAPITAL
Memorandum of Association of
SIC Marketing Services (UK) Limited
Each subscriber to this Memorandum of Association wishes to form a company under the Companies Act 2006 and agrees to become a member of the company and to take at least one share.
Name of each subscriber |
Sherritt International Corporation
1133 Yonge Street
5th Floor
TORONTO
ON
M4T 2Y7
Canada
100 Ordinary shares of £1 each
Dated 25/6/2013
Exhibit T3A.30
New Nouveau Brunswick CANADA CANADA PROVINCE OF NEW BRUNSWICK PROVINCE DU NOUVEAU-BRUNSWICK BUSINESS CORPORATIONS ACT LOI SUR LES CORPORATIONS COMMERCIALES CERTIFICATE OF INCORPORATION CERTIFICAT DE CONSTITUTION EN CORPORATION (SECTION 6) (ARTICLE 6) 501109 N.B. LTD. Name of Corporation / Raison sociale de la corporation 501109 Corporation Number / Numéro de la corporation I HEREBY CERTIFY that the above-mentioned corporation, the Articles of Incorporation of which are attached, JE CERTIFIE que la corporation mentionnée ci-dessus, dont les statuts constitutifs sont joints a ce certificat, á été was incorporated under the Business Corporations Act of the Province of New Brunswick. constituée en corporation en vertu de la Loi sur les corporations commerciales de la province du Nouveau-Brunswick. Director Directeur Date of Incorporation October 31, 1995 Date de constitution
BUSINESS CORPORATIONS ACT FORM 1 ARTICLES OF INCORPORATION (SECTION 4)
|
LOI SUR LES CORPORATIONS COMMERCIALES FORMULE 1 STATUTS CONSTITUTIFS (ARTICLE 4) | |
1 - | Name of Corporation: | Raison sociale de la corporation: | ||
501109 N.B. LTD. | ||||
2 - | The classes and any maximum number of shares that the corporation is authorized to issue and any maximum aggregate amount for which shares may be issued including shares without par value and/or with par value and the amount of the par value: |
Les catégories et le nombre maximal dactions qua la corporation peut émettre ainsi que le montant maximal global pour lequel les actions peuvent étre émises y compris les actions sans vaieur au pair ou avec valeur au pair ou les deux et le montant de la valeur au pair: | ||
An unlimited number of common shares without nominal or par value.
|
3 - | Restrictions, if any, on share transfers: |
Restrictions, sil y en a, au transfert dactions: | ||
N/A
|
4 - | Number (or minimum and maximum number) of directors: |
Nombre (ou nombre minimum et maximum) des administrateurs: | ||
Minimum of 1 - Maximum of 10
| ||||
5 - | Restrictions, if any, on business the corporation may carry on: |
Restrictions, sil y en a, à Iactivité que peut exercer la corporation: | ||
N/A
| ||||
6 - |
Other provisions, if any: |
Dautres dispositions, ie cas échéant: | ||
See Schedule A attached hereto.
|
7 - | Incorporators: | Fondateurs: | ||||||||
Date | Names Noms |
Address (include postal code) Adresses (y compris le code postal) |
Signature | |||||||
Oct. 31/95 |
R. B. Eddy | P.0. Box 610, Fredericton, NB E3B 5A6 |
/s/ R. B. Eddy | |||||||
FOR DEPARTMENT USE ONLY | RÉSERVÉ À LUSAGE DU MINISTÉRE | |
Corporation No. - N*. de Corporation 501109
|
Filed - Déposé FILED/DEPOSE OCT 31 1995
| |
45-4104(1/94) |
SCHEDULE A
This is Schedule A referred to in the foregoing articles of incorporation of 501109 N.B. LTD.
1. | Financial Assistance |
Subject to subsection 43(2) of the Act and without any other restriction, the Corporation and any corporation with which it is affiliated may, in addition to any other powers it may have, give financial assistance, directly or indirectly, by any means including, without limiting the generality of the foregoing, by means of a loan or guarantee,
(a) | to any shareholder, director, officer or employee of the Corporation, or of an affiliated corporation, or, |
(b) | to any associate of a shareholder, director, officer or employee of the Corporation or of an affiliated corporation. |
2. | Meetings of Shareholders |
2.1 Meetings of shareholders may be held within New Brunswick, or outside New Brunswick in any capital city of any state or province in North America or at any place where the Corporation has a place of business.
2.2 Notice of the time and place of a meeting of shareholders shall be sent not more than 10 days before the meeting to each shareholder entitled to vote at the meeting, to each director, and to the auditor, if any.
3. | Borrowing |
3.1 The board of directors may, without authorization of the shareholders, from time to time, in such amounts and on such terms as they deem expedient:
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the Corporation; |
(c) | charge, mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired, moveable or immoveable property of the Corporation, including book debts, rights, powers, franchises and undertakings, to secure any debt obligation or any money borrowed or other debt or liability of the Corporation; or |
(d) | give a guarantee on behalf of the Corporation to secure performance of an obligation of any person. |
3.2 The board of directors may from time to time delegate to such 1 or more of the directors and officers of the Corporation as may be designated by the board, all or any of the powers conferred on the board in clause 3.1 above, to such extent and in such manner as the board shall determine at the time of each such delegation.
4. | Invitation to Public |
4.1 An invitation to the public to subscribe for securities of the Corporation is prohibited. The number of shareholders is limited to fifty (50), not including persons who are or have been in the employment of the Corporation and persons who, having been formerly in the employment of the Corporation, were, while in that employment, and have continued after the termination of that employment, to be shareholders of the Corporation, two or more persons holding one or more shares jointly being counted as a single shareholder.
5. | Pre-emptive Rights |
Except as provided by bylaw or a unanimous shareholder agreement, shareholders have no pre-emptive right pursuant to section 27 of the Business Corporations Act or otherwise.
FILED/DEPOSE OCT 31 1995
- 2 -
BUSINESS CORPORATIONS ACT FORM 2 NOTICE OF REGISTERED OFFICE OR NOTICE OF CHANGE OF REGISTERED OFFICE (SECTION 17) |
|
LOI SUR LES CORPORATIONS COMMERCIALES FORMULE 2 AVIS DE DESIGNATION OU AVIS DE CHANGEMENT DU BUREAU ENREGISTRÉ (ARTICLE 17) |
1 - | Name of Corporation - Raison sociale de la corporation: |
2 - Corporation No. - N°. de corporation: | ||||
501109 N.B. LTD. | 501109
| |||||
3 - | Place and address of the registered office: |
Lieu et adresse ou bureau enregistre: | ||||
570 Queen Street Suite 600, Barker House P.O. Box 610 Fredericton, NB E3B 5A6
|
4 - | Effective date of change: |
Date dentrée en vigueur du changement: | ||||
N/A | ||||||
5 - | Previous place and address of the registered office: |
Demiers lieu et adresse du bureau enregistré: | ||||
N/A |
Date | Signature | Description of Office Fonction | ||||
October 31/95 |
/s/ R. B. Eddy | Incorporator |
BUSINESS CORPORATIONS ACT FORM 4 NOTICE OF DIRECTORS OR NOTICE OF CHANGE OF DIRECTORS (SECTION 64, 71) |
LOI SUR LES CORPORATIONS COMMERCIALES FORMULE 4 LISTE DES ADMINISTRATEURS OU AVIS DE CHANGEMENT DADMINISTRATEURS (ARTICLE 64, 71) | |||
1 - | Name of Corporation - Raison sociale de la corporation: | |||
501109 N.B. LTD. |
2 - | The following persons became directors of this corporation: Effective Date October 31, 1995 |
Liste des personnes devenues administrateurs de la corporation Date dentrée en vigueur |
Name / Nom | Residential Address or Address for Service Adresse résidentielle ou adresse pour fin de signification |
Occupation | Telephone Téléphone | |||
R. B. Eddy |
570 Queen Street, P.O. Box 610 Fredericton, NB E3B 5A6
|
Lawyer |
458-8572 |
3 - | The following persons ceased to be directors fo the corporation: Effective Date - Date dentrée en vigueur |
Liste des personnes qui ont cessé détre administrateurs de la corporation: |
Name / Nom | Residential Address or Address for Service Adresse résidentielle ou adresse pour fin de signification |
|||||
N/A |
N/A |
4 - | The directors of the corporation now are: | Administrateurs actuels de la corporation: |
Name / Nom | Residential Address or Address for Service Adresse résidentielle ou adresse pour fin de signification |
Occupation | Telephone Téléphone | |||
R. B. Eddy |
570 Queen Street, P.O. Box 610 Fredericton, NB E3B 5A6
|
Lawyer |
458-8572 |
Date | Signature | Description of Office Fonction |
||||
October 31/95 |
/s/ R. B. Eddy | Director |
For Department Use Only / Resérvé à Iusage du ministére |
Forms 2 and 4 / Formules 2 et 4 Filed/Déposé FILED/DEPOSE OCT 31 1995
| |
NOTE: TO BE USED FOR NEW INCORPORATIONS ONLY |
REM: Á NUTILISER QUE POUR UNE NOUVELLE CONSTITUTION EN CORPORATION |
Exhibit T3A.31
New Noveau Brunswick CANADA PROVINCE OF NEW BRUNSWICK BUSINESS CORPORATIONS ACT CERTIFICATE OF AMENDMENT
(SECTION 26, 117) CANADA PROVINCE DU NOUVEAU-BRUNSWICK LOI SUR LES CORPORATIONS COMMERCIALES CERTIFICAT DE MODIFICATION (ARTICLE 26, 117) THE COBALT REFINERY HOLDING COMPANY LTD. Name of Corporation / Raison sociale de la corporation 501109
Corporation Number / Numéro de la corporation I HEREBY CERTIFY that the Articles of the above-mentioned corporation were amended JE CERTIFIE que les statuts de la corporation mentionée ci-dessus
ont été modifiés (a) under Section 11 of the Business Corporations Act in accordance with the attached notice; en vertu de Particle 11 de la Loi sur les corporations commerciales conformément á lavis ci-joints; (b) under Section 26 of the Business Corporations Act as set out in the attached Articles of Amendment designating en vertu de Particle 26 de la Loi sur les corporations commerciales de la facon
indiquée dans les status de a series of shares; modification ci-joints décrivant les actions dune série; (c) under Section 117 of the Business Corporations Act as set out
in the attached Articles of Amendment; or en vertu de Particle 117 de la Loi sur les corporations commerciales de la facon indiquée dans les statuts de modification ci-joints; ou (d) under
Section 132 of the Business Corporations Act as set out in the attached Articles of Reorganization. en vertu de Particle 132 de la Loi sur les corporations commerciales de la facon indiquées dans les statuts de réorganisation.
Director Directeur Date of Amendment Date de modification November 16, 1995
NEW BRUNSWICK BUSINESS CORPORATIONS ACT FORM 3 ARTICLES OF
AMENDMENT
|
NOUVEAU BRUNSWICK LOI SUR LES CORPORATIONS FORMULE 3 STATUTS DE
MODIFICATION
| |
1Name of CorporationRaison sociale de la corporation |
2Corporation No.Numéro de la corporation | |
501109 N.B. LTD.
|
501109 | |
3The articles of the above-mentioned corporation are amended as follows: |
Las statute de la corporation mentionnée ici sont modifiés comme suit: |
to change the name of the Corporation to THE COBALT REFINERY HOLDING COMPANY LTD.
and by deleting N/A. from section 3 of the articles of incorporation in connection with the restrictions, if any, on share transfers and substituting therefor the following:
The right to transfer shares of the Corporation shall be restricted in that no shareholder shall be entitled to transfer any share or shares in the capital of the Corporation without either
(i) | the express sanction of the holders of more than 50% of the common shares of the Corporation for the time being outstanding expressed by a resolution passed at a meeting of the shareholders or by an instrument or instruments in writing signed by the holders of more than 50% of such shares, or |
(ii) | the express sanction of the directors of the Corporation expressed by a resolution passed by the votes of a majority of the directors of the Corporation at a meeting of the Board of directors or by an instrument or instruments in writing signed by a majority of the directors. |
Date | Signature | Description of OfficeDescription du bureau | ||
November 13, 1995
|
/s/ Sarbjit S. Basra
|
Director
| ||
FOR DEPARTMENT USE ONLY | FiledDéposé | |||
RESERVE A LUSAGE DU MINISTERE | FILED/DEPOSE Nov 16 1995
|
NEWSOME AND GILBERT, LIMITED 362 - 420
CONSENT TO USE OF NAME
TO: |
The Director, Corporations Branch P. O. Box 6000 Fredericton, New Brunswick |
THE COBALT REFINERY COMPANY INC. of 10101 - 114 Street, Fort Saskatchewan, Alberta, T8L 2P2 hereby consents to the following name for use by a corporation:
THE COBALT REFINERY HOLDING COMPANY LTD.
DATED the 15th day of November, 1995.
|
CONSENT TO USE OF NAME
TO: |
The Director, Corporations Branch P. O. Box 6000 Fredericton, New Brunswick E3B 5H1 |
THE COBALT REFINERY COMPANY INC. of 10101 - 114 Street, Fort Saskatchewan, Alberta, T8L 2P2 hereby consents to the following name for use by a corporation:
THE COBALT REFINERY HOLDING COMPANY LTD.
DATED the 15th day of November, 1995.
501109 N.B. LTD.
The undersigned, being the sole shareholder of 501109 N.B. LTD., pursuant to subsection 95(1) of the Business Corporations Act (New Brunswick) hereby passes the following special resolution:
ARTICLES OF AMENDMENT
WHEREAS 501109 N.B. LTD. (the Corporation) was incorporated by Certificate and Articles of Incorporation dated October 31, 1995;
AND WHEREAS it is considered necessary and expedient in the interests of the Corporation to amend its articles as hereinafter provided;
NOW THEREFORE BE IT RESOLVED THAT
1. the articles of the Corporation be amended to change the name of the Corporation to THE COBALT REFINERY HOLDING COMPANY LTD.,
2. any one of the directors or officers of the Corporation be and is hereby authorized and directed to execute and deliver, for and on behalf of the Corporation, all documents and to do all other things necessary or desirable to give effect to such articles of amendment, including the execution and delivery of articles of amendment in prescribed form; and
3. upon articles of amendment having become effective in accordance with the provisions of the Business Corporations Act (New Brunswick), the articles of the Corporation are amended accordingly.
DATED the 13th day of November, 1995.
/s/ Sarbjit S. Basra |
Sarbjit S. Basra |
Exhibit T3B.1
BY-LAW NO. 1
of
SHERRITT INTERNATIONAL CORPORATION
(the Corporation)
1. | REGISTERED OFFICE |
(a) | The registered office of the Corporation shall be in the place within Ontario specified in the articles of the Corporation and at such location therein as the directors may from time to time determine. |
2. | CORPORATE SEAL |
(a) | The Corporation may, but need not, have a corporate seal. The corporate seal of the Corporation shall be such as the directors may by resolution from time to time adopt. An instrument or agreement executed on behalf of the Corporation by a director, an officer or an agent of the Corporation is not invalid merely because the corporate seal, if any, is not affixed thereto. |
3. | DIRECTORS |
(a) | NOMINATION OF DIRECTORS |
(i) | Only persons who are nominated in accordance with the procedures set out in this By-Law No. 1 shall be eligible for election as directors to the board of directors (the Board) of the Corporation. Nominations of persons for election to the Board may only be made at an annual meeting of shareholders, or at a special meeting of shareholders called for any purpose which includes the election of directors to the Board, as follows: |
(A) | by or at the direction of the Board or an authorized officer of the Corporation, including pursuant to a notice of meeting; |
(B) | by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Canada Business Corporations Act (the Act) or a requisition of shareholders made in accordance with the provisions of the Act; or |
(C) | by any person entitled to vote at such meeting (a Nominating Shareholder), who: (A) is, at the close of business on the date of giving notice provided for in Section 3(a)(iii) below and on the record date for notice of such meeting, either entered in the securities register of the Corporation 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 (B) has given timely notice in proper written form as set forth in this By-Law No. 1. |
(ii) | For the avoidance of doubt, the foregoing Section 3(a)(i) shall be the exclusive means for any person to bring nominations for election to the Board before any annual or special meeting of shareholders of the Corporation. |
(iii) | For a nomination made by a Nominating Shareholder to be a timely notice (a Timely Notice), the Nominating Shareholders notice must be received by the Chief Executive Officer of the Corporation at the principal executive offices of the Corporation: |
(A) | in the case of an annual meeting of shareholders, not later than the close of business on the 30th day before the date of the meeting; provided, however, if the first public announcement made by the Corporation of the date of the annual meeting is less than 50 days prior to the meeting date, not later than the close of business on the 10th day |
following the day on which the first public announcement of the date of such annual meeting is made by the Corporation; |
(B) | in the case of a special meeting (which is not also an annual meeting) of shareholders called for any purpose which includes the election of directors to the Board, not later than the close of business on the 15th day following the day on which the first public announcement of the date of the special meeting is made by the Corporation. |
(iv) | To be in proper written form, a Nominating Shareholders notice to the Chief Executive Officer of the Corporation must comply with all the provisions of this Section 3(a)(v) and: |
(A) | disclose or include, as applicable, as to each person whom the Nominating Shareholder proposes to nominate for election as a director (a Proposed Nominee): |
(I) | their name, age, business and residential address, principal occupation or employment for the past five years, status as a resident Canadian (as such term is defined in the Act); |
(II) | their direct or indirect beneficial ownership in, or control or direction over, any class or series of securities of the Corporation, including the number or principal amount and the date(s) on which such securities were acquired; |
(III) | any relationships, agreements or arrangements, including financial, compensation and indemnity related relationships, agreements or arrangements, between the Proposed Nominee or any affiliates or associates of, or any person or entity acting jointly or in concert with, the Proposed Nominee and the Nominating Shareholder; |
(IV) | 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 Act or applicable securities law; and |
(V) | a duly completed personal information form in respect of the Proposed Nominee in the form prescribed by the principal stock exchange on which the securities of the Corporation are then listed for trading; |
(B) | disclose or include, as applicable, 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, direct or indirect beneficial ownership in, or control or direction over, any class or series of securities of the Corporation, including the number or principal amount and the date(s) on which such securities were acquired; |
(II) | their interests in, or rights or obligations associated with, an agreement, arrangement or understanding, the purpose or effect of which is to alter, directly or indirectly, the persons economic interest in a security of the Corporation or the persons economic exposure to the Corporation, including any derivative or hedging arrangements; |
(III) | any proxy, contract, 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 Corporation or the nomination of directors to the Board; |
(IV) | a representation that the Nominating Shareholder is a holder of record of securities of the Corporation, 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; and |
(V) | 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 Act or as required by applicable securities laws; |
(C) | Such notice shall include a written consent duly signed by each Proposed Nominee to being named as a nominee and to serve as a director of the Corporation, if elected. |
(v) | All information to be provided in a Timely Notice shall be provided as of the date of such notice. The Nominating Shareholder shall update such information forthwith so that it is true and correct in all material respects as of the date that is ten (10) business days prior to the date of the meeting, or any adjournment or postponement thereof. |
(vi) | Any notice, or other document or information required to be given to the Corporation pursuant to this By-Law No. 1 may only be given by personal delivery, facsimile transmission or by email (at such email address as may be stipulated from time to time by the Corporation for purposes of this notice), and shall be deemed to have been given and made only at the time it is served by personal delivery to the Chief Executive Officer at the address of the principal executive offices of the Corporation, email (at the address as aforesaid) or sent by facsimile transmission (provided that receipt of confirmation of such transmission has been received); provided that if such delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Toronto time) on a day which is a business day, then such delivery or electronic communication shall be deemed to have been made on the next following day that is a business day. |
(vii) | Additional Matters |
(A) | The chair of any meeting of shareholders of the Corporation shall have the power to determine whether any proposed nomination is made in accordance with the provisions of this By-Law No. 1, and if any proposed nomination is not in compliance with such provisions, must declare that such defective nomination shall not be considered at any meeting of shareholders. |
(B) | Despite any other provision of this By-Law No. 1, if the Nominating Shareholder (or a qualified representative of the Nominating Shareholder) does not appear at the meeting of shareholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation. |
(C) | The Board may, in its sole discretion, waive any requirement of this By-Law No. 1. |
(D) | For the purposes of this By-Law No. 1, public announcement means disclosure in a press release disseminated by the Corporation through a national news service in Canada, or in a document filed by the Corporation for public access under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com. |
(E) | This By-Law No. 1 is subject to, and should be read in conjunction with, the Act and the articles of continuance of the Corporation (the Articles). If there is any conflict or |
inconsistency between any provision of the Act or the Articles and any provision of this By-Law No. 1, the provision of the Act or the Articles will govern. |
(b) | Number and Quorum. The number of directors shall be not fewer than the minimum and not more than the maximum provided in the articles, at least one-third of whom shall not be officers or employees of the Corporation or of any of its affiliates. The number of directors shall be determined by the directors when they are empowered by special resolution to make such determination and otherwise the number of directors shall be determined by special resolution. A simple majority of the number of directors so determined or such greater number as may be fixed by the directors or shareholders shall constitute a quorum for the transaction of business at any meeting of directors. |
(c) | Qualification. No person shall be qualified to be a director if he is less than eighteen years of age; if he is of unsound mind and has been so found by a court in Canada or elsewhere; or if he has the status of a bankrupt. At least 25 per cent of the directors shall be resident Canadians. |
(d) | Election and Term of Office. The directors shall be elected at each annual meeting of shareholders of the Corporation and each director shall hold office until the close of the first annual meeting following his election provided that if an election of directors is not held at an annual meeting of shareholders, the directors then in office shall continue in office until their successors are elected. Retiring directors are eligible for re-election. |
(e) | Vacation of Office. A director ceases to hold office if he dies, is removed from office by the shareholders, ceases to be qualified for election as a director or, subject to the Act, resigns by a written resignation received by the Corporation. A written resignation of a director becomes effective at the time it is received by the Corporation, or at the time specified in the resignation, whichever is later. |
(f) | Removal of Directors. The shareholders may by ordinary resolution at an annual or special meeting of shareholders remove any director or directors from office provided that where the holders of any class or series of shares have an exclusive right to elect one or more directors, a director so elected may only be removed by an ordinary resolution of the shareholders of that class or series. A vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed. |
(g) | Vacancies. Subject to the Act, a quorum of directors may fill a vacancy among the directors. A director appointed or elected to fill a vacancy holds office for the unexpired term of his predecessor. |
(h) | Action by Directors. The directors shall manage or supervise the management of the business and affairs of the Corporation. The powers of the directors may be exercised at a meeting (subject to section (i)) at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the directors. Where there is a vacancy in the board of directors, the remaining directors, may exercise all the powers of the board so long as a quorum remains in office. |
(i) | Meeting by Telephone. If all the directors of the Corporation present at or participating in the meeting consent, a meeting of directors or of a committee of directors may be held by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and a director participating in such a meeting by such means is deemed to be present at that meeting. |
(j) | Place of Meetings. Meetings of directors may be held at any place within or outside of Ontario. A majority of the meetings of directors need not be held within Canada in any financial year of the Corporation. |
(k) | Calling of Meetings. Meetings of the directors shall be held at such time and place as the Chairman of the Board, the President or any two directors may determine. |
(l) | Notice of Meeting. Notice of the time and place of each meeting of directors shall be given to each director by telephone or by written notice not less than 48 hours before the time of the meeting and need not specify the purpose of or the business to be transacted at the meeting. Meetings of the directors may be held at any time without notice if all the directors have waived or are deemed to have waived notice. |
(m) | First Meeting of New Board. No notice shall be necessary for the first meeting of newly-elected directors held immediately following their election at a meeting of shareholders. |
(n) | Adjourned Meeting. Notice of an adjourned meeting of directors is not required if the time and place of the adjourned meeting is announced at the original meeting. |
(o) | Regular Meetings. The directors may appoint a day or days in any month or months for regular meetings and shall designate the place and time at which such meetings are to be held. A copy of any resolution of directors fixing the place and time of regular meetings of the board shall be sent to each director forthwith after being passed, and no other notice shall be required for any such regular meeting. |
(p) | Chairman. The Chairman of the Board, or in his absence the President if a director, or in his absence a director chosen by the directors at the meeting shall be the chairman of any meeting of directors. |
(q) | Voting at Meetings. Questions arising at any meeting of directors shall be decided by a majority of votes. In the case of an equality of votes, the chairman of the meeting, in addition to his original vote, shall not have a second or casting vote. |
(r) | Conflict of Interest. A director or officer who is a party to, or who is a director or officer of or has a material interest in, any person who is a party to a material contract or transaction or proposed material contract or transaction with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided by the Act. |
(s) | Remuneration and Expenses. The directors shall be paid such remuneration as the directors may from time to time by resolution determine. The directors shall also be entitled to be paid their travelling and other expenses properly incurred by them in going to, attending and returning from meetings of directors or committees of directors. If any director or officer of the Corporation shall be employed by or shall perform services for the Corporation otherwise than as a director or officer or shall be a member of a firm or a shareholder, director or officer of a body corporate which is employed by or performs services for the Corporation, the fact of his being a director or officer of the Corporation shall not disentitle such director or officer or such firm or body corporate, as the case may be, from receiving proper remuneration for such services. |
4. | COMMITTEES |
(a) | Committees of Directors. The directors may appoint from among their number one or more committees of directors and delegate to them any of the powers of the directors except those which under the Act a committee of directors has no authority to exercise. |
(b) | Audit Committee. The directors shall appoint from among their number an audit committee composed of not fewer than three directors, all of whom are not officers or employees of the Corporation or any affiliate of the Corporation. The audit committee shall review the financial statements of the Corporation and shall report thereon to the directors of the Corporation before such financial statements are approved by the directors. The auditor of the Corporation is entitled |
to receive notice of every meeting of the audit committee and, at the expense of the Corporation, to attend and be heard thereat; and, if so requested by a member of the audit committee, shall attend every meeting of the committee held during the term of office of the auditor. The auditor of the Corporation or any member of the audit committee may call a meeting of the committee. |
(c) | Transaction of Business. Subject to section 3(i), the powers of a committee appointed by the directors may be exercised at a meeting at which a quorum is present or by resolution in writing signed by all members of the committee entitled to vote on that resolution at a meeting of the committee. Meetings of a committee may be held at any place in or outside Canada. |
(d) | Procedure. Unless otherwise determined by the directors each committee shall have power to fix its quorum and to regulate its procedure. |
5. | OFFICERS |
(a) | General. The directors may from time to time appoint a Chairman of the Board, a President, one or more Vice-Presidents, a Secretary, a Treasurer and such other officers as the directors may determine, including one or more assistants to any of the officers so appointed. The officers so appointed may but need not be members of the board of directors except as provided in sections 5(c) and 5(d). |
(b) | Term of Office. Any officer may be removed by the directors at any time but such removal shall not affect the rights of such officer under any contract of employment with the Corporation. Otherwise, each officer shall hold office until his successor is appointed. |
(c) | The Chairman of the Board. The Chairman of the Board, if any, shall be appointed from among the directors and shall, when present, be chairman of meetings of shareholders and directors and shall have such other powers and duties as the directors may determine. |
(d) | The President. Unless the directors otherwise determine, the President shall be the chief executive officer of the Corporation and shall have general supervision of its business and affairs and in the absence of the Chairman of the Board shall be chairman at meetings of shareholders and directors when present. |
(e) | Vice-President. A Vice-President shall have such powers and duties as the directors or the President may determine. |
(f) | Secretary. The Secretary shall give, or cause to be given, all notices required to be given to shareholders, directors, auditors and members of committees; shall attend and be secretary of all meetings of shareholders, directors and committees appointed by the directors and shall enter or cause to be entered on books kept for that purpose minutes of all proceedings at such meetings; shall be the custodian of the corporate seal of the Corporation and of all records, books, documents and other instruments belonging to the Corporation; and shall have such other powers and duties as the directors or the President may determine. |
(g) | Treasurer. The Treasurer shall keep proper books of account and accounting records with respect to all financial and other transactions of the Corporation; shall be responsible for the deposit of money, the safe-keeping of securities and the disbursement of the funds of the Corporation; shall render to the directors when required an account of all his transactions as Treasurer and of the financial position of the Corporation; and he shall have such other powers and duties as the directors or the President may determine. |
(h) | Other Officers. The powers and duties of all other officers shall be such as the directors or the President may determine. Any of the powers and duties of an officer to whom an assistant has |
been appointed may be exercised and performed by such assistant, unless the directors or the President otherwise direct. |
(i) | Variation of Duties. The directors may, from time to time, vary, add to or limit the powers and duties of any officer. |
(j) | Conflict of Interest. An officer shall disclose his interest in any material contract or proposed
material contract in accordance with |
(k) | Agents and Attorneys. The directors shall have power from time to time to appoint agents or attorneys for the Corporation in or out of Canada with such powers (including the power to sub-delegate) of management, administration or otherwise as the directors may specify. |
6. | PROTECTION OF DIRECTORS, OFFICERS AND OTHERS |
(a) | Indemnification of Directors and Officers. The Corporation shall indemnify a director or officer, a former director or officer or a person who acts or acted at the Corporations request as a director or officer, or an individual acting in a similar capacity, of another entity, and the heirs and legal representatives of such a person to the fullest extent permitted by the Act. |
(b) | Insurance. The Corporation may purchase and maintain insurance for the benefit of any person referred to in section 6(a) to the extent permitted by the Act. |
7. | MEETINGS OF SHAREHOLDERS |
(a) | Annual Meetings. The annual meeting of the shareholders shall be held at the registered office of the Corporation or at such other place, in or outside Ontario but within Canada, at such time in each year as the directors may determine, for the purpose of receiving the reports and statements required to be placed before the shareholders at an annual meeting, electing directors, appointing an auditor or auditors, and for the transaction of such other business as may properly be brought before the meeting. |
(b) | Other Meetings. The directors shall have power at any time to call a special meeting of shareholders to be held at such time and at such place, in or outside Ontario, as may be determined by the board of directors. |
(c) | Electronic Meetings. A meeting of shareholders may be held by telephonic or electronic means and a shareholder who, through those means, votes at a meeting or establishes a communications link to a meeting shall be deemed to be present at that meeting. |
(d) | Notice of Meetings. Notice of the time and place of a meeting of shareholders shall be given not less than twenty-one days nor more than sixty days before the meeting to each holder of shares carrying voting rights at the close of business on the record date for notice, to each director and to the auditor of the Corporation. Notice of a meeting of shareholders at which special business is to be transacted shall state or be accompanied by a statement of the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall include the text of any special resolution or by-law to be submitted to the meeting. All business transacted at a special meeting of shareholders and all business transacted at an annual meeting of shareholders, except consideration of the minutes of an earlier meeting, the financial statements and auditors report, election of directors and reappointment of the incumbent auditor, shall be deemed to be special business. |
(e) | Record Date for Notice. For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, the directors may fix in advance a date as the record date for such determination of shareholders, but the record date shall not precede by more than sixty days or by |
less than thirty days the date on which the meeting is to be held. Where no record date is fixed, the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders shall be at the close of business on the day immediately preceding the day on which the notice is given, or, if no notice is given, shall be the day on which the meeting is held. If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice thereof shall be given, not less than seven days before the date so fixed, by advertisement in a newspaper published or distributed in the place where the Corporation has its registered office and in each place in Canada where it has a transfer agent or where a transfer of its shares may be recorded and by written notice to each stock exchange in Canada on which the shares of the Corporation are listed for trading. |
(f) | Persons Entitled to be Present. The only persons entitled to be present at a meeting of shareholders shall be those entitled to vote thereat, the directors, the auditor and other persons who are entitled or required under any provision of the Act or the articles or by-laws of the Corporation to attend a meeting of shareholders of the Corporation. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting. |
(g) | Chairman. The Chairman of the Board, or in his absence the President, or in his absence a person chosen by a vote at the meeting shall be chairman of meetings of shareholders. |
(h) | Scrutineers. At each meeting of shareholders one or more scrutineers, who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting. |
(i) | Quorum. Two persons present in person and each being entitled to vote thereat, representing in person or by proxy at least 25% of the total number of shares entitled to vote at a meeting, shall constitute a quorum for the transaction of business at any meeting of shareholders. |
(j) | Right to Vote. The Corporation shall prepare a list of shareholders entitled to receive notice of a meeting, arranged in alphabetical order and showing the number of shares held by each shareholder, which list shall be prepared, |
(i) | if a record date is fixed as hereinbefore provided, not later than ten days after that date; |
(ii) | if no record date is fixed, at the close of business on the day immediately preceding the day on which the notice is given, or where no notice is given, on the day on which the meeting is held. |
A person named in the said list is entitled to vote the shares shown opposite his name at the meeting to which the list relates.
(k) | Joint Shareholders. Where two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons are present, in person or by proxy, they shall vote as one on the shares jointly held by them. |
(l) | Representatives. Where a body corporate or association is a shareholder of the Corporation, the Corporation shall recognize any individual authorized by a resolution of the directors or governing body of the body corporate or association to represent it at meetings of shareholders of the Corporation. An individual so authorized may exercise on behalf of the body corporate or association he represents all the powers it could exercise if it were an individual shareholder. |
(m) | Executors and Others. An executor, administrator, committee of a mentally incompetent person, guardian or trustee and, where a corporation is such executor, administrator, committee, guardian |
or trustee of a testator, intestate, mentally incompetent person, ward or cestui que trust, any duly appointed representative of such corporation, upon filing with the secretary of the meeting sufficient proof of his appointment, shall represent the shares in his or its hands at all meetings of shareholders of the Corporation and may vote accordingly as a shareholder in the same manner and to the same extent as the shareholder of record. If there be more than one executor, administrator, committee, guardian or trustee, the provisions of this by-law respecting joint shareholders shall apply. |
(n) | Proxyholders. Every shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders, who need not be shareholders, as his nominee to attend and act at the meeting in the manner, to the extent and with the authority conferred by the proxy. A proxyholder or an alternate proxyholder has the same rights as the shareholder who appointed him to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting and, except where a proxyholder or an alternate proxyholder has conflicting instructions from more than one shareholder, to vote at such meeting in respect of any matter by way of any show of hands. A proxy shall be executed by the shareholder or his attorney authorized in writing or, if the shareholder is a body corporate, by an officer or attorney thereof duly authorized and ceases to be valid one year from its date. A proxy shall be in such form as may be prescribed from time to time by the directors or in such other form as the chairman of the meeting may accept and as complies with all applicable laws and regulations. |
(o) | Time for Deposit of Proxies. The directors may by resolution fix a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding any meeting or adjourned meeting of shareholders before which time proxies to be used at that meeting must be deposited with the Corporation or an agent thereof, and any period of time so fixed shall be specified in the notice calling the meeting. |
(p) | Votes to Govern. Subject to the Act and the articles of the Corporation, at all meetings of shareholders every question shall be decided, either on a show of hands or by ballot, by a majority of the votes cast on the question. In case of an equality of votes, the chairman of the meeting shall not have a second or casting vote. |
(q) | Show of Hands. Voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting or where required by the chairman. A ballot may be demanded either before or after any vote by show of hands. Upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been taken upon a question, unless a ballot thereon be required or demanded, an entry in the minutes of a meeting of shareholders to the effect that the chairman declared a motion to be carried is admissible in evidence as prima facie proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the motion. A demand for a ballot may be withdrawn at any time prior to taking of a poll on the ballot. |
(r) | Ballots. If a ballot is demanded or required, the vote upon the question shall be taken in such manner as the chairman of the meeting shall direct and each person present and entitled to vote at the meeting shall, unless the articles of the Corporation otherwise provide, be entitled to one vote for each share in respect of which he is entitled to vote at the meeting. |
(s) | Adjournment. The chairman of any meeting of shareholders may, with the consent of the meeting and subject to such conditions as the meeting may decide, adjourn the same from time to time and from place to place. If a meeting of shareholders is adjourned for less than thirty days it is not necessary to give notice of the adjourned meeting other than by announcement at the earliest meeting that is adjourned. If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of thirty days or more, notice of the adjourned meeting shall be given as for an original meeting. Any business may be brought before or dealt with at any adjourned meeting which might have been brought before or dealt with at the original meeting in accordance with the notice calling such original meeting. |
(t) | Resolution in Lieu of Meeting. A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of shareholders except where a written statement in respect thereof has been submitted by a director or where representations in writing are submitted by the auditor of the Corporation, in either case, in accordance with the Act. |
8. | SHARES |
(a) | Issue. Subject to the Act and the articles of the Corporation, shares of the Corporation may be issued at such times and to such persons and for such consideration as the directors may determine, provided that no shares may be issued until it is fully paid as provided in the Act. |
(b) | Commissions. The directors may authorize the Corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the Corporation from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares. |
(c) | Share Certificate. Every shareholder is entitled at his option to a share certificate in respect of the shares held by him that complies with the Act or to a non-transferable written acknowledgement (written acknowledgement) of his right to obtain a share certificate from the Corporation in respect of the shares of the Corporation held by him, but the Corporation is not bound to issue more than one share certificate or written acknowledgement in respect of a share or shares held jointly by several persons and delivery of a share certificate or written acknowledgement to one of several joint holders is sufficient delivery to all. Written acknowledgements shall be in such form or forms as the directors shall from time to time by resolution determine. The Corporation may charge a fee in accordance with the Act for a share certificate issued in respect of a transfer. Subject to the provisions of the Act and to the requirements of any stock exchange on which shares of the Corporation may be listed, share certificates shall be in such form or forms as the directors shall from time to time approve. Unless otherwise determined by the directors, share certificates shall be signed by the Chairman of the Board, the President, or a Vice-President or a director and by the Secretary or an Assistant Secretary and need not be under the corporate seal and certificates for shares in respect of which a transfer agent and/or registrar has been appointed shall not be valid unless countersigned on behalf of such transfer agent and/or registrar. Share certificates shall be signed manually by at least one director or officer of the Corporation or by or on behalf of a registrar, transfer agent, branch transfer agent or issuing or other authenticating agent of the Corporation and any additional signatures required on share certificates may be printed or otherwise mechanically reproduced thereon. A manual signature is not required on a share certificate representing a fractional share. If a share certificate contains a printed or mechanically reproduced signature of a person, the Corporation may issue the share certificate, notwithstanding that the person has ceased to be a director or an officer of the Corporation, and the share certificate is as valid as if he were a director or an officer at the date of its issue. |
(d) | Transfer Agents and Registrars. For each class of shares issued by it, the Corporation may appoint one or more agents to keep the securities register and the register of transfers and one or more branch registers. Such an agent may be designated as a transfer agent or registrar according to functions and one agent may be designated both transfer agent and registrar. The securities register and the register of transfers shall be kept at the registered office of the Corporation or at such other places in Ontario as are designated by the directors, and the branch register or registers of transfers may be kept at such offices of the Corporation or other places, either within or outside Ontario, as are designated by the directors. |
(e) | Transfer of Shares. Subject to the Act, no transfer of a share shall be registered except upon presentation of the certificate representing such share with an endorsement which complies with the Act, together with such reasonable assurance that the endorsement is genuine and effective as the directors may prescribe, upon payment of all applicable taxes and fees and upon compliance with the articles of the Corporation. |
(f) | Non-Recognition of Trust. Subject to the Act, the Corporation may treat the registered holder of any share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payment in respect of the share, and to exercise all the rights and powers of an owner of the share. |
(g) | Replacement of Share Certificates. Where the owner of a share certificate claims that the share certificate has been lost, apparently destroyed or wrongfully taken, the Corporation shall issue or cause to be issued a new certificate in place of the original certificate if the owner (i) so requests before the Corporation has notice that the share certificate has been acquired by a bona fide purchaser; (ii) files with the Corporation an indemnity bond sufficient in the Corporations opinion to protect the Corporation and any transfer agent, registrar or other agent of the Corporation from any loss that it or any of them may suffer by complying with the request to issue a new share certificate; and (iii) satisfies any other reasonable requirements imposed from time to time by the Corporation. |
9. | DIVIDENDS AND RIGHTS |
(a) | Declaration of Dividends. Subject to the Act, the directors may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. |
(b) | Cheques. A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at the address of such holder in the Corporations securities register, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all such joint holders and mailed to them at their address in the Corporations securities register. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold. |
(c) | Non-Receipt of Cheques. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the directors may from time to time prescribe, whether generally or in any particular case. |
(d) | Record Date for Dividends and Rights. The directors may fix in advance a date, preceding by not more than fifty days the date for payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the rights to subscribe for such securities, and notice of any such record date shall be given not less than seven days before such record date in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the directors. |
(e) | Unclaimed Dividends. Any dividend unclaimed after a period of six years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation. |
10. | NOTICES |
(a) | General. A notice or document required by the Act, the regulations thereunder, the articles or the by-laws of the Corporation to be sent to a shareholder or director of the Corporation may be sent |
by prepaid mail addressed to, or may be delivered personally to, the shareholder at his latest address as shown in the records of the Corporation or to the director at his latest address as shown in the records of the Corporation or in the most recent notice filed under the Act, whichever is the more current. A notice or document if mailed to a shareholder or director of the Corporation shall be deemed to have been received on the fifth day after mailing. If the Corporation sends a notice or document to a shareholder in accordance with this section and the notice or document is returned on three consecutive occasions because the shareholder cannot be found, the Corporation is not required to send any further notices or documents to the shareholder until he informs the Corporation in writing of his new address. |
(b) | Computation of Time. In computing the time when a notice or document must be given or sent under any provision requiring a specified number of days notice of any meeting or other event, a day shall mean a clear day and the period of days shall be deemed to commence the day following the event that began the period and shall be deemed to terminate at midnight of the last day of the period except that if the last day of the period falls on a Sunday or holiday the period shall terminate at midnight of the day next following that is not a Sunday or holiday. |
(c) | Omission and Errors. The accidental omission to give any notice or send any document to any shareholder, director or other person or the non-receipt of any notice or document by any shareholder, director or other person or any error in any notice or document not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded on such notice or document. |
(d) | Notice to Joint Shareholders. All notices or documents with respect to any shares registered in more than one name may, if more than one address appears on the securities register of the Corporation in respect of such joint holding, be given to such joint shareholders at the first address so appearing, and all notices so given or documents so sent shall be sufficient notice to all the holders of such shares. |
(e) | Proof of Service. A certificate of the Secretary or other duly authorized officer of the Corporation, or of any agent of the Corporation, as to facts in relation to the mailing or delivery or sending of any notice or document to any shareholder or director of the Corporation or to any other person or publication of any such notice or document, shall be conclusive evidence thereof and shall be binding on every shareholder or director or other person as the case may be. |
(f) | Signature on Notice. The signature on any notice or document given by the Corporation may be printed or otherwise mechanically reproduced thereon or partly printed or otherwise mechanically reproduced thereon. |
(g) | Waiver of Notice. Notice may be waived or the time for the sending of a notice or document may be waived or abridged at any time with the consent in writing of the person entitled thereto. Attendance of any director at a meeting of the directors or of any shareholder at a meeting of shareholders is a waiver of notice of such meeting, except where he attends for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
11. | BUSINESS OF THE CORPORATION |
(a) | Voting Shares and Securities in Other Corporations. All of the shares or other securities carrying voting rights of any other body corporate or bodies corporate held from time to time by the Corporation may be voted at any and all meetings of holders of such securities of such other body corporate or bodies corporate in such manner and by such person or persons as the directors of the Corporation shall from to time determine or failing such determination the proper signing officers of the Corporation may also from time to time execute and deliver for and on behalf of the Corporation instruments of proxy and arrange for the issue of voting certificates and other evidence of the right to vote in such names as they may determine. |
(b) | Bank Accounts, Cheques, Drafts and Notes. The Corporations bank accounts shall be kept in such chartered bank or banks, trust company or trust companies or other firm or corporation carrying on a banking business as the directors may by resolution from time to time determine. Cheques on bank accounts, drafts drawn or accepted by the Corporation, promissory notes given by it, acceptances, bills of exchange, orders for the payment of money and other instruments of a like nature may be made, signed, drawn, accepted or endorsed, as the case may be, by such officer or officers, person or persons as the directors may by resolution from time to time name for that purpose. Cheques, promissory notes, bills of exchange, orders for the payment of money and other negotiable paper may be endorsed for deposit to the credit of any one of the Corporations bank accounts by such officer or officers, person or persons, as the directors may by resolution from time to time name for that purpose, or they may be endorsed for such deposit by means of a stamp bearing the Corporations name. |
(c) | Execution of Instruments. Any one director or officer shall have authority to sign in the name and on behalf of the Corporation all instruments in writing and any instruments in writing so signed shall be binding upon the Corporation without any further authorization or formality. The board of directors shall have power from time to time by resolution to appoint any officer or officers or any person or persons on behalf of the Corporation either to sign instruments in writing generally or to sign specific instruments in writing. Any signing officer may affix the corporate seal to any instrument requiring the same. The term instruments in writing as used herein shall, without limiting the generality thereof, include contracts, documents, powers of attorney, deeds, mortgages, hypothecs, charges, conveyances, transfers and assignments of property (real or personal, immovable or movable), agreements, tenders, releases, receipts and discharges for the payment of money or other obligations, conveyances, transfers and assignments of shares, stocks, bonds, debentures or other securities, instruments of proxy and all paper writing. |
(d) | Fiscal Year. Until changed by resolution of the directors the fiscal year of the Corporation shall terminate on the 31st day of December in each year. |
12. | INTERPRETATION |
(a) | In this by-law, wherever the context requires or permits, the singular shall include the plural and the plural the singular; the word person shall include firms and corporations, and masculine gender shall include the feminine and neuter genders. Wherever reference is made to any determination or other action by the directors such shall mean determination or other action by or pursuant to a resolution passed at a meeting of the directors, or by or pursuant to a resolution consented to by all the directors as evidenced by their signatures thereto. Wherever reference is made to the Act, it shall mean the Canada Business Corporations Act, and every other act or statute incorporated therewith or amending the same, or any act or statute substituted therefor. Unless the context otherwise requires, all words used in this by-law shall have the meanings given to such words in the Act. |
13. | REPEAL |
(a) | All prior by-laws of the Corporation be and they are hereby repealed without prejudice to any action or actions taken thereunder. |
Exhibit T3B.2
BY-LAW NO. 1
A by-law relating generally to the
transaction of the business and
affairs of
672538 ALBERTA LTD.
Contents
One | - | Interpretation | ||
Two | - | Business of the Corporation | ||
Three | - | Borrowing and Security | ||
Four | - | Directors | ||
Five | - | Committees | ||
Six | - | Officers | ||
Seven | - | Protection of Directors, Officers and Others | ||
Eight | - | Shares | ||
Nine | - | Dividends and Rights | ||
Ten | - | Meetings of Shareholders | ||
Eleven | - | Notices | ||
Twelve | - | Effective Date |
BE IT ENACTED as a by-law of the Corporation as follows:
TABLE OF CONTENTS
SECTION 1 |
INTERPRETATION |
5 | ||||
1.01 |
Definitions |
5 | ||||
SECTION 2 |
BUSINESS OF THE CORPORATION |
6 | ||||
2.01 |
Registered Office |
6 | ||||
2.02 |
Corporate Seal |
6 | ||||
2.03 |
Financial Year |
6 | ||||
2.04 |
Execution of Instruments |
6 | ||||
2.05 |
Banking Arrangements |
6 | ||||
2.06 |
Voting Rights in Other Bodies Corporate |
6 | ||||
2.07 |
Divisions |
6 | ||||
SECTION 3 |
BORROWING AND SECURITY |
7 | ||||
3.01 |
Borrowing Power |
7 | ||||
3.02 |
Delegation |
7 | ||||
SECTION 4 |
DIRECTORS |
8 | ||||
4.01 |
Number of Directors |
8 | ||||
4.02 |
Qualification |
8 | ||||
4.03 |
Election and Term |
8 | ||||
4.04 |
Removal of Directors |
8 | ||||
4.05 |
Vacation of Office |
8 | ||||
4.06 |
Vacancies |
8 | ||||
4.07 |
Action by the Board |
9 | ||||
4.08 |
At Least Half Canadians at Meetings |
9 | ||||
4.09 |
Meeting by Telephone |
9 | ||||
4.10 |
Place of Meeting |
9 | ||||
4.11 |
Calling of Meetings |
9 | ||||
4.12 |
Notice of Meeting |
9 | ||||
4.13 |
First Meeting of New Board |
10 | ||||
4.14 |
Adjourned Meeting |
10 | ||||
4.15 |
Regular Meetings |
10 | ||||
4.16 |
Chairman |
10 | ||||
4.17 |
Quorum |
10 | ||||
4.18 |
Votes to Govern |
10 | ||||
4.19 |
Conflict of Interest |
11 | ||||
4.20 |
Remuneration and Expenses |
11 |
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SECTION 5 |
COMMITTEES |
11 | ||||
5.01 |
Committees of the Board |
11 | ||||
5.02 |
Transaction of Business |
11 | ||||
5.03 |
Advisory Bodies |
11 | ||||
5.04 |
Procedure |
11 | ||||
SECTION 6 |
OFFICERS |
12 | ||||
6.01 |
Appointment |
12 | ||||
6.02 |
Chairman of the Board |
12 | ||||
6.03 |
Managing Director |
12 | ||||
6.04 |
President |
12 | ||||
6.05 |
Secretary |
12 | ||||
6.06 |
Treasurer |
12 | ||||
6.07 |
Powers and Duties of Officers |
13 | ||||
6.08 |
Term of Office |
13 | ||||
6.09 |
Agents and Attorneys |
13 | ||||
6.10 |
Conflict of Interest |
13 | ||||
SECTION 7 |
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS |
13 | ||||
7.01 |
Limitation of Liability |
13 | ||||
7.02 |
Indemnity |
14 | ||||
SECTION 8 |
SHARES |
14 | ||||
8.01 |
Allotment of Shares |
14 | ||||
8.02 |
Commissions |
14 | ||||
8.03 |
Registration of Transfers |
14 | ||||
8.04 |
Non-recognition of Trusts |
15 | ||||
8.05 |
Share Certificates |
15 | ||||
8.06 |
Replacement of Share Certificates |
15 | ||||
8.07 |
Joint Shareholders |
15 | ||||
8.08 |
Deceased Shareholders |
15 | ||||
8.09 |
Lien for Indebtedness |
15 | ||||
SECTION 9 |
DIVIDENDS AND RIGHTS |
16 | ||||
9.01 |
Dividends |
16 | ||||
9.02 |
Dividend Cheques |
16 | ||||
9.03 |
Record Date for Dividends and Rights |
16 |
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SECTION 10 |
MEETINGS OF SHAREHOLDERS |
16 | ||||
10.01 |
Annual Meetings |
16 | ||||
10.02 |
Special Meetings |
17 | ||||
10.03 |
Place of Meetings |
17 | ||||
10.04 |
Notice of Meetings |
17 | ||||
10.05 |
List of Shareholders Entitled to Notice |
17 | ||||
10.06 |
Record Date for Notice |
17 | ||||
10.07 |
Meetings without Notice |
17 | ||||
10.08 |
Chairman, Secretary and Scrutineers |
18 | ||||
10.09 |
Persons Entitled to be Present |
18 | ||||
10.10 |
Quorum |
18 | ||||
10.11 |
Right to Vote |
18 | ||||
10.12 |
Proxyholders and Representatives |
19 | ||||
10.13 |
Time for Deposit of Proxies |
19 | ||||
10.14 |
Joint Shareholders |
19 | ||||
10.15 |
Votes to Govern |
19 | ||||
10.16 |
Show of Hands |
19 | ||||
10.17 |
Ballots |
20 | ||||
10.18 |
Adjournment |
20 | ||||
10.19 |
Action in Writing by Shareholders |
20 | ||||
10.20 |
Only One Shareholder |
20 | ||||
10.21 |
Meeting by Telephone |
20 | ||||
SECTION 11 |
NOTICES |
21 | ||||
11.01 |
Method of Giving Notices |
21 | ||||
11.02 |
Notice to Joint Shareholders |
21 | ||||
11.03 |
Computation of Time |
21 | ||||
11.04 |
Undelivered Notices |
21 | ||||
11.05 |
Omissions and Errors |
21 | ||||
11.06 |
Persons Entitled by Death or Operation of Law |
21 | ||||
11.07 |
Waiver of Notice |
22 | ||||
11.08 |
Interpretation |
22 | ||||
SECTION 12 |
EFFECTIVE DATE |
22 | ||||
12.01 |
Effective Date |
22 |
- 4 -
SECTION ONE
INTERPRETATION
1.01 Definitions.In the by-laws of the Corporation, unless the context otherwise requires:
Act means the Business Corporations Act (Alberta), or any statute that may be substituted therefor, as from time to time amended;
appoint includes elect and vice versa;
articles means the articles attached to the Certificate of Incorporation of the Corporation as from time to time amended or restated;
board means the board of directors of the Corporation;
by-laws means this by-law and all other by-laws of the Corporation from time to time in force and effect;
cheque includes a draft;
Corporation means the corporation incorporated under the Act by the said certificate to which the articles are attached and named 672538 Alberta Ltd.;
meeting of shareholders includes an annual meeting of shareholders and a special meeting of shareholders;
recorded address has the meaning set forth in section 11.08;
Regulations means the Regulations under the Act as published or from time to time amended and every regulation that may be substituted therefor and, in the case of such substitution, any references in the by-laws of the Corporation to provisions of the Regulations shall be read as references to the substituted provisions therefor in the new regulations; and
special meeting of shareholders includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders.
Except as defined above, words and expressions defined in the Act and the Regulations, including resident Canadian and unanimous shareholder agreement, have the same meanings when used herein. Words importing the singular number include the plural and vice versa; words importing gender include the masculine, feminine and neuter genders; and words importing a person include an individual, partnership, association, body corporate, trustee, executor, administrator and legal representative.
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SECTION TWO
BUSINESS OF THE CORPORATION
2.01 Registered Office.The registered office of the Corporation shall be at the place within the Province of Alberta as is specified in the notice thereof filed with the articles and thereafter as the board may from time to time determine.
2.02 Corporate Seal.The Corporation may have one or more different corporate seals, which seals may be adopted or changed from time to time by the board.
2.03 Financial Year.The financial year of the Corporation shall end on such date as may be determined by the directors from time to time.
2.04 Execution of Instruments.Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two directors or officers. In addition, this does not limit the power of the board to, from time to time, direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal to any instrument requiring the same.
2.05 Banking Arrangements.The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time prescribe.
2.06 Voting Rights in Other Bodies Corporate.The signing officers of the Corporation under section 2.04 may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such instruments shall be in favour of such persons as may be determined by the officers executing or arranging for them. In addition, the board may from time to time direct the manner in which and the persons by whom any particular voting rights or class of voting rights may or shall be exercised.
2.07 Divisions.The board may cause the business and operations of the Corporation or any part thereof to be divided into one or more divisions upon a basis, including without limitation types of business or operations, geographical territories, product lines or goods or services, as may be considered appropriate in each case. In connection with any such division the board or, subject to any direction by the board, the chief executive officer, may authorize from time to time, upon such basis as may be considered appropriate in each case:
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(a) | Subdivision and Consolidationthe further division of the business and operations of any division into sub-units and the consolidation of the business and operations of any divisions and sub-units; |
(b) | Namethe designation of any division or sub-unit by, and the carrying on of the business and operations of any division or sub-unit under, a name other than the name of the Corporation; provided that the Corporation shall set out its name in legible characters in all places required by law; and |
(c) | Officersthe appointment of officers for any division or sub-unit, the determination of their powers and duties, and the removal of any officers so appointed, provided that any such officers shall not by reason of their being officers of a division or sub-unit, be officers of the Corporation. |
SECTION THREE
BORROWING AND SECURITY
3.01 Borrowing Power.Without limiting the borrowing powers of the Corporation as set forth in the Act, but subject to the articles and any unanimous shareholder agreement, the board may from time to time on behalf of the Corporation, without authorization of the shareholders:
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge bonds, debentures, notes or other evidences of indebtedness or guarantee of the Corporation whether secured or unsecured; |
(c) | to the extent permitted by the Act, give a guarantee on behalf of the Corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation. |
Nothing in this section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
3.02 Delegation.The board may from time to time delegate to a committee of the board a director or an officer of the Corporation or any other person as may be
- 7 -
designated by the board all or any of the powers conferred on the board by section 3.01 or by the Act to such extent and in such manner as the board may determine at the time of such delegation.
SECTION FOUR
DIRECTORS
4.01 Number of Directors.Until changed in accordance with the Act, the board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the articles.
4.02 Qualification.No person shall be qualified for election as a director if he is less than 18 years of age; if he is a dependent adult as defined in The Dependent Adults Act (Alberta) or is the subject of a certificate of incapacity under that Act, is a formal patient as defined in The Mental Health Act (Alberta), is the subject of an order under The Mentally Incapacitated Persons Act (Alberta) appointing a committee of his person or estate or both, or has been found to be a person of unsound mind by a court in Alberta or elsewhere, if he is not an individual; or if he has the status of a bankrupt. A director need not be a shareholder. At least half of the directors shall be resident Canadians.
4.03 Election and Term.The election of directors shall take place at each annual meeting of shareholders and all the directors then in office shall retire but, if qualified, shall be eligible for re-election. The number of directors to be elected at any such meeting shall be the number of directors then in office unless the directors otherwise determine. Where the shareholders adopt an amendment to the articles to increase the number or minimum number of directors, the shareholders may, at the meeting at which they adopt the amendment, elect the additional number of directors authorized by the amendment. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.
4.04 Removal of Directors.Subject to the Act or a unanimous shareholder agreement the shareholders may by resolution passed at a meeting of shareholders specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting, failing which it may be filled by the board.
4.05 Vacation of Office.A director ceases to hold office when he dies; he is removed from office by the shareholders; he ceases to be qualified for election as a director; or his written resignation is sent or delivered to the Corporation, or, if a time is specified in such resignation, at the time so specified, whichever is later.
4.06 Vacancies.Subject to the Act, a quorum of the board may appoint a qualified individual to fill a vacancy in the board.
- 8 -
4.07 Action by the Board.Subject to any unanimous shareholder agreement, the board shall manage the business and affairs of the Corporation. The powers of the board may be exercised at a meeting (subject to sections 4.08 and 4.09) at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the board. Where there is a vacancy in the board, the remaining directors may exercise all the powers of the board so long as a quorum remains in office.
4.08 At Least Half Canadians at Meetings.The board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least half of the directors present are resident Canadians, except where
(a) | a resident Canadian director who is unable to be present approves in writing or by telephone or other communications facilities the business transacted at the meeting; and |
(b) | the number of resident Canadian directors present at the meeting, together with any resident Canadian director who gives his approval under clause (a), totals at least half of the directors present at the meeting. |
4.09 Meeting Telephone.A director may participate in a meeting of the board or of a committee of the board by means of conference telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed to be present at the meeting.
4.10 Place of Meetings.Meetings of the board may be held at any place in or outside Alberta.
4.11 Calling of Meeting.Meetings of the board shall be held from time to time at such time and at such place as the board, the chairman of the board, the managing director, the president or any two directors may determine.
4.12 Notice of Meeting.Notice of the time and place of each meeting of the board shall be given in the manner provided in Section Eleven to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified, including, if required by the Act, any proposal to:
(a) | submit to the shareholders any question or matter requiring approval of the shareholders; |
(b) | fill a vacancy among the directors or in the office of auditor; |
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(c) | issue securities, except in the manner and on the terms authorized by the directors; |
(d) | declare dividends; |
(e) | purchase, redeem or otherwise acquire shares issued by the Corporation, except in the manner and on the terms authorized by the directors; |
(f) | pay a commission for the sale of shares; |
(g) | approve a management proxy circular; |
(h) | approve any annual financial statements; or |
(i) | adopt, amend or repeal by-laws. |
4.13 First Meeting of New Board.Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting immediately following the meeting of shareholders at which such board is elected.
4.14 Adjourned Meeting.Notice of an adjourned meeting of the board is not required if the time and place of the adjourned meeting is announced at the original meeting.
4.15 Regular Meetings.The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except where the Act requires the purpose thereof or the business to be transacted thereat to be specified.
4.16 Chairman.The chairman of any meeting of the board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chairman of the board, managing director or president. If no such officer is present, the directors present shall choose one of their number to be chairman.
4.17 Quorum.Subject to section 4.08, the quorum for the transaction of business at any meeting of the board shall be a majority of directors or such greater number of directors as the board may from time to time determine. Where the Corporation has a board consisting of only one director, that director may constitute a meeting.
4.18 Votes to Govern.At all meetings of the board every question shall be decided by a majority of the votes cast on the question. In case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
- 10 -
4.19 Conflict of Interest.A director who is a party to, or who is a director or officer of or has a material interest in any person who is a party to, a material contract or proposed material contract with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided by the Act. Any such contract or proposed contract shall be referred to the board or shareholders for approval even if such contract is one that in the ordinary course of the Corporations business would not require approval by the board or shareholders. Such a director shall not vote on any resolution to approve any such contract or proposed contract except as permitted by the Act.
4.20 Remuneration and Expenses.Subject to any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
SECTION FIVE
COMMITTEES
5.01 Committees of the Board.The board may appoint one or more committees of the board, however designated, and delegate to any such committee any of the powers of the board except those which pertain to items which, under the Act, a committee of the board has no authority to exercise. At least half of the members of any such committee shall be resident Canadians.
5.02 Transaction of Business.The powers of a committee of the board may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place in or outside Canada.
5.03 Advisory Bodies.The board may from time to time appoint such advisory bodies as it may deem advisable.
5.04 Procedure.Unless otherwise determined by the board, each committee and advisory body shall have power to fix its quorum at not less than a majority of its members, to elect its chairman and to regulate its procedure.
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SECTION SIX
OFFICERS
6.01 Appointment.Subject to any unanimous shareholder agreement, the board may from time to time appoint a president, one or more vice-presidents (to which title may be added words indicating seniority or function), a secretary, a treasurer and such other officers as the board may determine, including one or more assistants to any of the officers so appointed. One person may hold more than one office. The board may specify the duties of and, in accordance with this by-law and subject to the Act, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not be a director.
6.02 Chairman of the Board.The board may from time to time also appoint a chairman of the board who shall be a director. If appointed, the board may assign to him any of the powers and duties that are by any provisions of this by-law assigned to the managing director or to the president; and he shall have such other powers and duties as the board may specify.
6.03 Managing Director.The board may from time to time also appoint a managing director who shall be a resident Canadian and a director. If appointed, he shall be the chief executive officer and, subject to the authority of the board, shall have general supervision of the business and affairs of the Corporation; and he shall have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the managing director shall also have the powers and duties of that office.
6.04 President.The president shall be the chief operating officer and, subject to the authority of the board, shall have general supervision of the business of the Corporation, and he shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.
6.05 Secretary.The secretary shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; he shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the board; he shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation and of all books, records and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and he shall have such other powers and duties as otherwise may be specified.
6.06 Treasurer.The treasurer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; he shall render to the board
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whenever required an account of all his transactions as treasurer and of the financial position of the Corporation; and he shall have such other powers and duties as otherwise may be specified.
6.07 Powers and Duties of Officers.The powers and duties of all officers shall be such as the terms of their engagement call for or as the board or (except for those whose powers and duties are to be specified only by the board) the chief executive officer may specify. The board and (except as aforesaid) the chief executive officer may, from time to time and subject to the provisions of the Act, vary, add to or limit the powers and duties of any officer. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the board or the chief executive officer otherwise directs.
6.08 Term of Office.The board, in its discretion, may remove any officer of the Corporation. Otherwise each officer appointed by the board shall hold office until his successor is appointed or until his earlier resignation.
6.09 Agents and Attorneys.The Corporation, by or under the authority of the board, shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers (including the power to subdelegate) of management, administration or otherwise as may be thought fit.
6.10 Conflict of Interest.An officer shall disclose his interest in any material contract or proposed material contract with the Corporation in accordance with section 4.19.
SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability.Every director and officer of the Corporation in exercising his powers and discharging his duties shall act honestly and in good faith with a view to the best interests of the Corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Subject to the foregoing, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director, officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on his part, or for any other loss, damage or misfortune which shall happen in the execution of the duties of his office or in relation thereto; provided that nothing herein shall relieve any director or officer
- 13 -
from the duty to act in accordance with the Act and the regulations thereunder or from liability for any breach thereof.
7.02 Indemnity.Subject to the Act, the Corporation shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or such body corporate, if (a) he acted honestly and in good faith with a view to the best interests of the Corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Corporation may also indemnify such person in such other circumstances as the Act or law permits. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
SECTION EIGHT
SHARES
8.01 Allotment of Shares.Subject to the Act, the articles and any unanimous shareholder agreement, the board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.
8.02 Commissions.The board may from time to time authorize the Corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
8.03 Registration of Transfers.Subject to the Act, no transfer of a share shall be registered in a securities register except upon presentation of the certificate representing such share with an endorsement which complies with the Act made thereon or delivered therewith duly executed by an appropriate person as provided by the Act, together with such reasonable assurance that the endorsement is genuine and effective as the board may from time to time prescribe, upon payment of all applicable taxes and any reasonable fees prescribed by the board, upon compliance with such restrictions on transfer as are authorized by the articles and upon satisfaction of any lien referred to in section 8.09.
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8.04 Non-recognition of Trusts.Subject to the Act, the Corporation may treat the registered holder of any share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payment in respect of the share, and otherwise to exercise all the rights and powers of an owner of the share.
8.05 Share Certificates.Every holder of one or more shares of the Corporation shall be entitled, at his option, to a share certificate, or to a non-transferable written certificate of acknowledgement of his right to obtain a share certificate, stating the number and class or series of shares held by him as shown on the securities register.
Such certificates shall be in such form as the board may from time to time approve. Any such certificate shall be signed in accordance with section 2.04 and need not be under the corporate seal.
8.06 Replacement of Share Certificates.The board or any officer or agent designated by the board may in its or his discretion direct the issue of a new share or other such certificate in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken on payment of such reasonable fee and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the board may from time to time prescribe, whether generally or in any particular case.
8.07 Joint Shareholders.If two or more persons are registered as joint holders of any share, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such share.
8.08 Deceased Shareholders.In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make any dividend or other payments in respect thereof except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents.
8.09 Lien of Indebtedness.If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 Dividends.Subject to the Act, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation. Any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9.02 Dividend Cheques.A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at his recorded address, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their recorded address. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the board may from time to time prescribe, whether generally or in any particular case.
9.03 Record Date for Dividends and Rights.The board may fix in advance a date, preceding by not more than 50 days the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, and notice of any such record date shall be given not less than 7 days before such record date in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the board.
SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 Annual Meetings.The annual meeting of shareholders shall be held at such time in each year and, subject to section 10.03, at such place as the board, the chairman of the board, the managing director or the president may from time to time determine, for
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the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting
10.02 Special Meetings.The board, the chairman of the board, the managing director or the president shall have power to call a special meeting of shareholders at any time.
10.03 Place of Meetings.Meetings of shareholders shall be held at the registered office of the Corporation or elsewhere in the municipality in which the registered office is situate or, if the board shall so determine, at some other place in Alberta or, if all the shareholders entitled to vote at the meeting so agree, at some place outside Alberta.
10.04 Notice of Meetings.Notice of the time and place of each meeting of shareholders shall be given in the manner provided in Section Eleven not less than 21 nor more than 50 days before the date of the meeting to each director, to the auditor, and to each shareholder who at the close of business on the record date for notice is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditors report, election of directors and reappointment of the incumbent auditor shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.
10.05 List of Shareholders Entitled to Notice.If the Corporation has more than 15 shareholders entitled to vote at a meeting of shareholders, it shall prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder entitled to vote at the meeting. If a record date for the meeting is fixed pursuant to section 10.06, the shareholders listed shall be those registered at the close of business on such record date. If no record date is fixed, the shareholders listed shall be those registered at the close of business on the day immediately preceding the day on which notice of the meeting is given or, where no such notice is given, on the day on which the meeting is held. The list shall be available for examination by any shareholder during usual business hours at the records office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared. Where a separate list of shareholders has not been prepared, the names of persons appearing in the securities register at the requisite time as the holder of one or more shares carrying the right to vote at such meeting shall be deemed to be a list of shareholders.
10.06 Record Date for Notice.If no such record date is so fixed, the record date for the determination of the shareholders entitled to receive notice of the meeting shall be at the close of business on the day immediately preceding the day on which the notice is given or, if no notice is given, shall be the day on which the meeting is held.
10.07 Meetings Without Notice.A meeting of shareholders may be held without notice at any time and place permitted by the Act (a) if all the shareholders entitled to vote
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thereat are present in person or duly represented or if those not present or represented waive notice of or otherwise consent to such meeting being held, and (b) if the auditors and the directors are present or waive notice of or otherwise consent to such meeting being held, so long as such shareholders, auditors or directors present are not attending for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. At such a meeting any business may be transacted which the Corporation at a meeting of shareholders may transact. If the meeting is held at a place outside Alberta, shareholders not present or duly represented, but who have waived notice of or otherwise consented to such meeting, shall also be deemed to have consented to the meeting being held at such place.
10.08 Chairman, Secretary and Scrutineers.The chairman of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed and who is present at the meeting: managing director, president, chairman of the board, or a vice-president who is a shareholder. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting.
10.09 Persons Entitled to be Present.The only persons entitled to be present at a meeting of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting.
10.10 Quorum.Subject to the Act in respect of a sole shareholder, a quorum for the transaction of business at any meeting of shareholders shall be two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxyholder or representative for a shareholder so entitled, and together holding or representing shares of the Corporation having not less than 51% of the outstanding votes entitled to be cast at the meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.11 Right to Vote.Every person named in the list referred to in section 10.05 shall be entitled to vote the shares shown thereon opposite his name at the meeting to which such list relates, except to the extent that (a) where the Corporation has fixed a record date in respect of such meeting, such person has transferred any of his shares after such record date or, where the Corporation has not fixed a record date in respect of such
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meeting, such person has transferred any of his shares after the date on which such list is prepared, and (b) the transferee, having produced properly endorsed certificates evidencing such shares or having otherwise established that he owns such shares, has demanded not later than 2 days before the meeting or any shorter period that the chairman of the meeting may permit that his name be included in such list. In any such excepted case the transferee shall be entitled to vote the transferred shares at such meeting.
10.12 Proxyholders and Representatives.Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder and one or more alternate proxyholders, to attend and act as his representative at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or his attorney and shall conform with the requirements of the Act. Alternatively, every such shareholder which is a body corporate or association may authorize by resolution of its directors or governing body an individual to represent it at a meeting of shareholders and such individual may exercise on the shareholders behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting. Any such proxyholder or representative need not be a shareholder.
10.13 Time for Deposit of Proxies.The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours, excluding Saturdays and holidays, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time having been specified in such notice, it has been received by the secretary of the Corporation or by the chairman of the meeting or any adjournment thereof prior to the time of voting.
10.14 Joint Shareholders.If two or more persons hold shares jointly, any one of them present in person or duly represented at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented and vote, they shall vote as one the shares jointly held by them.
10.15 Votes to Govern.At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by law, be determined by a majority of the votes cast on the question. In case of an equality of votes either upon a show of hands or upon a poll, the chairman of the meeting shall be entitled to a second or casting vote.
10.16 Show of Hands.Subject to the Act, any question at a meeting of shareholders shall be decided by a show of hands, unless a ballot thereon is required or demanded as hereinafter provided, and upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been
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taken upon a question, unless a ballot thereon is so required or demanded, a declaration by the chairman of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the shareholders upon the said question.
10.17 Ballots.On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairman may require a ballot or any person who is present and entitled to vote on such question at the meeting may demand a ballot. A ballot so required or demanded shall be taken in such manner as the chairman shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which he is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon the said question.
10.18 Adjournment.The chairman at a meeting of shareholders may, with the consent of the meeting and subject to such conditions as the meeting may decide, adjourn the meeting from time to time and from place to place. If a meeting of shareholders is adjourned for less than 30 days, it shall not be necessary to give notice of the adjourned meeting, other than by announcement at the time of adjournment. Subject to the Act, if a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.19 Action in Writing by Shareholders.A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
10.20 Only One Shareholder.Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or duly represented constitutes a meeting.
10.21 Meeting by Telephone.A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephone or other communications facility that permits all persons participating in the meeting to hear each other, and a person participating in such a meeting by those means is deemed to be present at the meeting.
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SECTION ELEVEN
NOTICES
11.01 Method of Giving Notice.Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the regulations thereunder, the articles, the by-laws or otherwise to a shareholder, director, officer, auditor or member of a committee of the board shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to his recorded address or if mailed to him at his recorded address by prepaid ordinary or air mail or if sent to him at his recorded address by any means of prepaid transmitted or recorded communication. A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been given when deposited in a post office or public letter box; and a notice so sent by any means of transmitted or recorded communication shall be deemed to have been given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the board in accordance with any information believed by him to be reliable.
11.02 Notice to Joint Shareholders.If two or more persons are registered as joint holders of any share, any notice may be addressed to all such joint holders, but notice addressed to one of such persons shall be sufficient notice to all of them.
11.03 Computation of Time.In computing the date when notice must be given under any provision requiring a specified number of days notice of any meeting or other event, the day of giving the notice shall be excluded and the day of the meeting or other event shall be included, unless the computation of time is required by law to be performed differently.
11.04 Undelivered Notices.If any notice given to a shareholder pursuant to section 11.01 is returned on three consecutive occasions because he cannot be found, the Corporation shall not be required to give any further notices to such shareholder until he informs the Corporation in writing of his new address.
11.05 Omissions and Errors.The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.
11.06 Persons Entitled by Death or Operation of Law.Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom he derives his title to such share
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prior to his name and address being entered on the securities register (whether such notice was given before or after the happening of the event upon which he became so entitled) and prior to his furnishing to the Corporation the proof of authority or evidence of his entitlement prescribed by the Act.
11.07 Waiver of Notice.Any shareholder, proxyholder or other person entitled to attend a meeting of shareholders, director, officer, auditor or member of a committee of the board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to him under the Act, the regulations thereunder, the articles, the by-laws or otherwise, and such waiver or abridgement, whether given before or after the meeting or other extent of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board or a committee of the board which may be given in any manner.
11.08 Interpretation.In this by-law, recorded address means in the case of a shareholder his address as recorded in the securities register; and in the case of joint shareholders the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one; and in the case of a director, officer, auditor or member of a committee of the board, his latest address as recorded in the records of the Corporation.
SECTION TWELVE
EFFECTIVE DATE
12.01 Effective Date.This by-law shall come into force when made by the board in accordance with the Act.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
Donald R. Leitch |
C.S. |
Beverley D. Liske | ||
President |
Secretary |
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672538 ALBERTA LTD.
BY-LAW NO. 2
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of 672538 ALBERTA LTD. (hereinafter called the Corporation) as follows:
1. The directors may and they are hereby authorized from time to time to
(a) | borrow money upon the credit of the Corporation; |
(b) | limit or increase the amount to be borrowed; |
(c) | issue, reissue, sell or pledge bonds, debentures, notes or other securities or debt obligations of the Corporation; |
(d) | issue, sell or pledge such bonds, debentures, notes or other securities or debt obligations for such sums and at such prices as may be deemed expedient; and |
(e) | mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the Corporation, and the undertaking and rights of the Corporation to secure any such bonds, debentures, notes or other securities or debt obligations, or to secure any present or future borrowing, liability or obligation of the Corporation. |
2. The directors may from time to time by resolution delegate to the Chairman of the Board of Directors or the President together with the Secretary or to any two directors of the Corporation all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
3. The powers hereby conferred shall be deemed to be in supplement of and not in substitution for any powers to borrow money for the purposes of the Corporation possessed by its directors or officers independently of a borrowing by-law.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
Donald R. Leitch | C.S. | Beverley D. Liske | ||
President | Secretary |
672538 ALBERTA LTD.
CANADIAN IMPERIAL BANK OF COMMERCE
BY-LAW NO. 3
A By-Law respecting the borrowing of money, the issuing of securities and the securing of liabilities by 672538 ALBERTA LTD. (the Company).
BE IT ENACTED as a By-Law of the Company as follows:
The directors of the Company may from time to time
(a) | borrow money or otherwise obtain credit upon the credit of the Company in such amounts and upon such terms as may be considered advisable; |
(b) | issue, reissue, sell or pledge debt obligations of the Company, including without limitation, bonds, debentures, debenture stock, notes or other securities or obligations of the Company, whether secured or unsecured for such sums, upons such terms, covenants and conditions and at such prices as may be deemed expedient; |
(c) | charge, mortgage, hypothecate, pledge, assign, transfer or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable property of the Company, including without limitation, book debts and unpaid calls, rights, powers, franchises and undertaking, to secure any money borrowed or any other debt or liability of the Company; |
(d) | delegate to such one or more of the officers and directors of the Company as may be designated by the directors all or any of the powers conferred by the foregoing clauses of this By-Law to such extent and in such manner as the directors shall determine at the time of each delegation. |
PASSED by the directors and sealed with the Companys seal this 6th day of November, 1995.
Donald R. Leitch |
C.S. |
Beverley D. Liske | ||
President |
Secretary |
Exhibit T3B.3
BY-LAW NO. 1
A by-law relating generally to the
transaction of the business and
affairs of
672539 ALBERTA LTD.
Contents
One |
- |
Interpretation | ||
Two |
- |
Business of the Corporation | ||
Three |
- |
Borrowing and Security | ||
Four |
- |
Directors | ||
Five |
- |
Committees | ||
Six |
- |
Officers | ||
Seven |
- |
Protection of Directors, Officers and Others | ||
Eight |
- |
Shares | ||
Nine |
- |
Dividends and Rights | ||
Ten |
- |
Meetings of Shareholders | ||
Eleven |
- |
Notices | ||
Twelve |
- |
Effective Date |
BE IT ENACTED as a by-law of the Corporation as follows:
TABLE OF CONTENTS
SECTION 1 |
INTERPRETATION |
5 | ||||
1.01 |
Definitions |
5 | ||||
SECTION 2 |
BUSINESS OF THE CORPORATION |
6 | ||||
2.01 |
Registered Office |
6 | ||||
2.02 |
Corporate Seal |
6 | ||||
2.03 |
Financial Year |
6 | ||||
2.04 |
Execution of Instruments |
6 | ||||
2.05 |
Banking Arrangements |
6 | ||||
2.06 |
Voting Rights in Other Bodies Corporate |
6 | ||||
2.07 |
Divisions |
6 | ||||
SECTION 3 |
BORROWING AND SECURITY |
7 | ||||
3.01 |
Borrowing Power |
7 | ||||
3.02 |
Delegation |
7 | ||||
SECTION 4 |
DIRECTORS |
8 | ||||
4.01 |
Number of Directors |
8 | ||||
4.02 |
Qualification |
8 | ||||
4.03 |
Election and Term |
8 | ||||
4.04 |
Removal of Directors |
8 | ||||
4.05 |
Vacation of Office |
8 | ||||
4.06 |
Vacancies |
8 | ||||
4.07 |
Action by the Board |
9 | ||||
4.08 |
At Least Half Canadians at Meetings |
9 | ||||
4.09 |
Meeting by Telephone |
9 | ||||
4.10 |
Place of Meeting |
9 | ||||
4.11 |
Calling of Meetings |
9 | ||||
4.12 |
Notice of Meeting |
9 | ||||
4.13 |
First Meeting of New Board |
10 | ||||
4.14 |
Adjourned Meeting |
10 | ||||
4.15 |
Regular Meetings |
10 | ||||
4.16 |
Chairman |
10 | ||||
4.17 |
Quorum |
10 | ||||
4.18 |
Votes to Govern |
10 | ||||
4.19 |
Conflict of Interest |
11 | ||||
4.20 |
Remuneration and Expenses |
11 |
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SECTION 5 |
COMMITTEES |
11 | ||||
5.01 |
Committees of the Board |
11 | ||||
5.02 |
Transaction of Business |
11 | ||||
5.03 |
Advisory Bodies |
11 | ||||
5.04 |
Procedure |
11 | ||||
SECTION 6 |
OFFICERS |
12 | ||||
6.01 |
Appointment |
12 | ||||
6.02 |
Chairman of the Board |
12 | ||||
6.03 |
Managing Director |
12 | ||||
6.04 |
President |
12 | ||||
6.05 |
Secretary |
12 | ||||
6.06 |
Treasurer |
12 | ||||
6.07 |
Powers and Duties of Officers |
13 | ||||
6.08 |
Term of Office |
13 | ||||
6.09 |
Agents and Attorneys |
13 | ||||
6.10 |
Conflict of Interest |
13 | ||||
SECTION 7 |
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS |
13 | ||||
7.01 |
Limitation of Liability |
13 | ||||
7.02 |
Indemnity |
14 | ||||
SECTION 8 |
SHARES |
14 | ||||
8.01 |
Allotment of Shares |
14 | ||||
8.02 |
Commissions |
14 | ||||
8.03 |
Registration of Transfers |
14 | ||||
8.04 |
Non-recognition of Trusts |
15 | ||||
8.05 |
Share Certificates |
15 | ||||
8.06 |
Replacement of Share Certificates |
15 | ||||
8.07 |
Joint Shareholders |
15 | ||||
8.08 |
Deceased Shareholders |
15 | ||||
8.09 |
Lien for Indebtedness |
15 | ||||
SECTION 9 |
DIVIDENDS AND RIGHTS |
16 | ||||
9.01 |
Dividends |
16 | ||||
9.02 |
Dividend Cheques |
16 | ||||
9.03 |
Record Date for Dividends and Rights |
16 |
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SECTION 10 |
MEETINGS OF SHAREHOLDERS |
16 | ||||
10.01 |
Annual Meetings |
16 | ||||
10.02 |
Special Meetings |
17 | ||||
10.03 |
Place of Meetings |
17 | ||||
10.04 |
Notice of Meetings |
17 | ||||
10.05 |
List of Shareholders Entitled to Notice |
17 | ||||
10.06 |
Record Date for Notice |
17 | ||||
10.07 |
Meetings without Notice |
17 | ||||
10.08 |
Chairman, Secretary and Scrutineers |
18 | ||||
10.09 |
Persons Entitled to be Present |
18 | ||||
10.10 |
Quorum |
18 | ||||
10.11 |
Right to Vote |
18 | ||||
10.12 |
Proxyholders and Representatives |
19 | ||||
10.13 |
Time for Deposit of Proxies |
19 | ||||
10.14 |
Joint Shareholders |
19 | ||||
10.15 |
Votes to Govern |
19 | ||||
10.16 |
Show of Hands |
19 | ||||
10.17 |
Ballots |
20 | ||||
10.18 |
Adjournment |
20 | ||||
10.19 |
Action in Writing by Shareholders |
20 | ||||
10.20 |
Only One Shareholder |
20 | ||||
10.21 |
Meeting by Telephone |
20 | ||||
SECTION 11 |
NOTICES |
21 | ||||
11.01 |
Method of Giving Notices |
21 | ||||
11.02 |
Notice to Joint Shareholders |
21 | ||||
11.03 |
Computation of Time |
21 | ||||
11.04 |
Undelivered Notices |
21 | ||||
11.05 |
Omissions and Errors |
21 | ||||
11.06 |
Persons Entitled by Death or Operation of Law |
21 | ||||
11.07 |
Waiver of Notice |
22 | ||||
11.08 |
Interpretation |
22 | ||||
SECTION 12 |
EFFECTIVE DATE |
22 | ||||
12.01 |
Effective Date |
22 |
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SECTION ONE
INTERPRETATION
1.01 Definitions.In the by-laws of the Corporation, unless the context otherwise requires:
Act means the Business Corporations Act (Alberta), or any statute that may be substituted therefor, as from time to time amended;
appoint includes elect and vice versa;
articles means the articles attached to the Certificate of Incorporation of the Corporation as from time to time amended or restated;
board means the board of directors of the Corporation;
by-laws means this by-law and all other by-laws of the Corporation from time to time in force and effect;
cheque includes a draft;
Corporation means the corporation incorporated under the Act by the said certificate to which the articles are attached and named 672539 Alberta Ltd.;
meeting of shareholders includes an annual meeting of shareholders and a special meeting of shareholders;
recorded address has the meaning set forth in section 11.08;
Regulations means the Regulations under the Act as published or from time to time amended and every regulation that may be substituted therefor and, in the case of such substitution, any references in the by-laws of the Corporation to provisions of the Regulations shall be read as references to the substituted provisions therefor in the new regulations; and
special meeting of shareholders includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders.
Except as defined above, words and expressions defined in the Act and the Regulations, including resident Canadian and unanimous shareholder agreement, have the same meanings when used herein. Words importing the singular number include the plural and vice versa; words importing gender include the masculine, feminine and neuter genders; and words importing a person include an individual, partnership, association, body corporate, trustee, executor, administrator and legal representative.
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SECTION TWO
BUSINESS OF THE CORPORATION
2.01 Registered Office.The registered office of the Corporation shall be at the place within the Province of Alberta as is specified in the notice thereof filed with the articles and thereafter as the board may from time to time determine.
2.02 Corporate Seal.The Corporation may have one or more different corporate seals, which seals may be adopted or changed from time to time by the board.
2.03 Financial Year.The financial year of the Corporation shall end on such date as may be determined by the directors from time to time.
2.04 Execution of Instruments.Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two directors or officers. In addition, this does not limit the power of the board to, from time to time, direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal to any instrument requiring the same.
2.05 Banking Arrangements.The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time prescribe.
2.06 Voting Rights in Other Bodies Corporate.The signing officers of the Corporation under section 2.04 may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such instruments shall be in favour of such persons as may be determined by the officers executing or arranging for them. In addition, the board may from time to time direct the manner in which and the persons by whom any particular voting rights or class of voting rights may or shall be exercised.
2.07 Divisions.The board may cause the business and operations of the Corporation or any part thereof to be divided into one or more divisions upon a basis, including without limitation types of business or operations, geographical territories, product lines or goods or services, as may be considered appropriate in each case. In connection with any such division the board or, subject to any direction by the board, the chief executive officer, may authorize from time to time, upon such basis as may be considered appropriate in each case:
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(a) | Subdivision and Consolidationthe further division of the business and operations of any division into sub-units and the consolidation of the business and operations of any divisions and sub-units; |
(b) | Namethe designation of any division or sub-unit by, and the carrying on of the business and operations of any division or sub-unit under, a name other than the name of the Corporation; provided that the Corporation shall set out its name in legible characters in all places required by law; and |
(c) | Officersthe appointment of officers for any division or sub-unit, the determination of their powers and duties, and the removal of any officers so appointed, provided that any such officers shall not by reason of their being officers of a division or sub-unit, be officers of the Corporation. |
SECTION THREE
BORROWING AND SECURITY
3.01 Borrowing Power.Without limiting the borrowing powers of the Corporation asset forth in the Act, but subject to the articles and any unanimous shareholder agreement, the board may from time to time on behalf of the Corporation, without authorization of the shareholders:
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge bonds, debentures, notes or other evidences of indebtedness or guarantee of the Corporation whether secured or unsecured; |
(c) | to the extent permitted by the Act, give a guarantee on behalf of the Corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation. |
Nothing in this section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
3.02 Delegation.The board may from time to time delegate to a committee of the board a director or an officer of the Corporation or any other person as may be
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designated by the board all or any of the powers conferred on the board by section 3.01 or by the Act to such extent and in such manner as the board may determine at the time of such delegation.
SECTION FOUR
DIRECTORS
4.01 Number of Directors.Until changed in accordance with the Act, the board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the articles.
4.02 Qualification.No person shall be qualified for election as a director if he is less than 18 years of age; if he is a dependent adult as defined in The Dependent Adults Act (Alberta) or is the subject of a certificate of incapacity under that Act, is a formal patient as defined in The Mental Health Act (Alberta), is the subject of an order under The Mentally Incapacitated Persons Act (Alberta) appointing a committee of his person or estate or both, or has been found to be a person of unsound mind by a court in Alberta or elsewhere, if he is not an individual; or if he has the status of a bankrupt. A director need not be a shareholder. At least half of the directors shall be resident Canadians.
4.03 Election and Term.The election of directors shall take place at each annual meeting of shareholders and all the directors then in office shall retire but, if qualified, shall be eligible for re-election. The number of directors to be elected at any such meeting shall be the number of directors then in office unless the directors otherwise determine. Where the shareholders adopt an amendment to the articles to increase the number or minimum number of directors, the shareholders may, at the meeting at which they adopt the amendment, elect the additional number of directors authorized by the amendment. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.
4.04 Removal of Directors.Subject to the Act or a unanimous shareholder agreement the shareholders may by resolution passed at a meeting of shareholders specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting, failing which it may be filled by the board.
4.05 Vacation of Office.A director ceases to hold office when he dies; he is removed from office by the shareholders; he ceases to be qualified for election as a director; or his written resignation is sent or delivered to the Corporation, or, if a time is specified in such resignation, at the time so specified, whichever is later.
4.06 Vacancies.Subject to the Act, a quorum of the board may appoint a qualified individual to fill a vacancy in the board.
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4.07 Action by the Board.Subject to any unanimous shareholder agreement, the board shall manage the business and affairs of the Corporation. The powers of the board may be exercised at a meeting (subject to sections 4.08 and 4.09) at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the board. Where there is a vacancy in the board, the remaining directors may exercise all the powers of the board so long as a quorum remains in office.
4.08 At Least Half Canadians at Meetings.The board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least half of the directors present are resident Canadians, except where
(a) | a resident Canadian director who is unable to be present approves in writing or by telephone or other communications facilities the business transacted at the meeting; and |
(b) | the number of resident Canadian directors present at the meeting, together with any resident Canadian director who gives his approval under clause (a), totals at least half of the directors present at the meeting. |
4.09 Meeting Telephone.A director may participate in a meeting of the board or of a committee of the board by means of conference telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed to be present at the meeting.
4.10 Place of Meetings.Meetings of the board may be held at any place in or outside Alberta.
4.11 Calling of Meeting.Meetings of the board shall be held from time to time at such time and at such place as the board, the chairman of the board, the managing director, the president or any two directors may determine.
4.12 Notice of Meeting.Notice of the time and place of each meeting of the board shall be given in the manner provided in Section Eleven to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified, including, if required by the Act, any proposal to:
(a) | submit to the shareholders any question or matter requiring approval of the shareholders; |
(b) | fill a vacancy among the directors or in the office of auditor; |
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(c) | issue securities, except in the manner and on the terms authorized by the directors; |
(d) | declare dividends; |
(e) | purchase, redeem or otherwise acquire shares issued by the Corporation, except in the manner and on the terms authorized by the directors; |
(f) | pay a commission for the sale of shares; |
(g) | approve a management proxy circular; |
(h) | approve any annual financial statements; or |
(i) | adopt, amend or repeal by-laws. |
4.13 First Meeting of New Board.Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting immediately following the meeting of shareholders at which such board is elected.
4.14 Adjourned Meeting.Notice of an adjourned meeting of the board is not required if the time and place of the adjourned meeting is announced at the original meeting.
4.15 Regular Meetings.The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except where the Act requires the purpose thereof or the business to be transacted thereat to be specified.
4.16 Chairman.The chairman of any meeting of the board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chairman of the board, managing director or president. If no such officer is present, the directors present shall choose one of their number to be chairman.
4.17 Quorum.Subject to section 4.08, the quorum for the transaction of business at any meeting of the board shall be a majority of directors or such greater number of directors as the board may from time to time determine. Where the Corporation has a board consisting of only one director, that director may constitute a meeting.
4.18 Votes to Govern.At all meetings of the board every question shall be decided by a majority of the votes cast on the question. In case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
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4.19 Conflict of Interest.A director who is a party to, or who is a director or officer of or has a material interest in any person who is a party to, a material contract or proposed material contract with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided by the Act. Any such contract or proposed contract shall be referred to the board or shareholders for approval even if such contract is one that in the ordinary course of the Corporations business would not require approval by the board or shareholders. Such a director shall not vote on any resolution to approve any such contract or proposed contract except as permitted by the Act.
4.20 Remuneration and Expenses.Subject to any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
SECTION FIVE
COMMITTEES
5.01 Committees of the Board.The board may appoint one or more committees of the board, however designated, and delegate to any such committee any of the powers of the board except those which pertain to items which, under the Act, a committee of the board has no authority to exercise. At least half of the members of any such committee shall be resident Canadians.
5.02 Transaction of Business.The powers of a committee of the board may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place in or outside Canada.
5.03 Advisory Bodies.The board may from time to time appoint such advisory bodies as it may deem advisable.
5.04 Procedure.Unless otherwise determined by the board, each committee and advisory body shall have power to fix its quorum at not less than a majority of its members, to elect its chairman and to regulate its procedure.
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SECTION SIX
OFFICERS
6.01 Appointment.Subject to any unanimous shareholder agreement, the board may from time to time appoint a president, one or more vice-presidents (to which title maybe added words indicating seniority or function), a secretary, a treasurer and such other officers as the board may determine, including one or more assistants to any of the officers so appointed. One person may hold more than one office. The board may specify the duties of and, in accordance with this by-law and subject to the Act, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not be a director.
6.02 Chairman of the Board.The board may from time to time also appoint a chairman of the board who shall be a director. If appointed, the board may assign to him any of the powers and duties that are by any provisions of this by-law assigned to the managing director or to the president; and he shall have such other powers and duties as the board may specify.
6.03 Managing Director.The board may from time to time also appoint a managing director who shall be a resident Canadian and a director. If appointed, he shall be the chief executive officer and, subject to the authority of the board, shall have general supervision of the business and affairs of the Corporation; and he shall have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the managing director shall also have the powers and duties of that office.
6.04 President.The president shall be the chief operating officer and, subject to the authority of the board, shall have general supervision of the business of the Corporation, and he shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.
6.05 Secretary.The secretary shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; he shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the board; he shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation and of all books, records and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and he shall have such other powers and duties as otherwise may be specified.
6.06 Treasurer.The treasurer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; he shall render to the board
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whenever required an account of all his transactions as treasurer and of the financial position of the Corporation; and he shall have such other powers and duties as otherwise may be specified.
6.07 Powers and Duties of Officers.The powers and duties of all officers shall be such as the terms of their engagement call for or as the board or (except for those whose powers and duties are to be specified only by the board) the chief executive officer may specify. The board and (except as aforesaid) the chief executive officer may, from time to time and subject to the provisions of the Act, vary, add to or limit the powers and duties of any officer. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the board or the chief executive officer otherwise directs.
6.08 Term of Office.The board, in its discretion, may remove any officer of the Corporation. Otherwise each officer appointed by the board shall hold office until his successor is appointed or until his earlier resignation.
6.09 Agents and Attorneys.The Corporation, by or under the authority of the board, shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers (including the power to subdelegate) of management, administration or otherwise as may be thought fit.
6.10 Conflict of Interest.An officer shall disclose his interest in any material contract or proposed material contract with the Corporation in accordance with section 4.19.
SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability.Every director and officer of the Corporation in exercising his powers and discharging his duties shall act honestly and in good faith with a view to the best interests of the Corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Subject to the foregoing, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director, officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on his part, or for any other loss, damage or misfortune which shall happen in the execution of the duties of his office or in relation thereto; provided that nothing herein shall relieve any director or officer
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from the duty to act in accordance with the Act and the regulations thereunder or from liability for any breach thereof.
7.02 Indemnity.Subject to the Act, the Corporation shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or such body corporate, if (a) he acted honestly and in good faith with a view to the best interests of the Corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Corporation may also indemnify such person in such other circumstances as the Act or law permits. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
SECTION EIGHT
SHARES
8.01 Allotment of Shares.Subject to the Act, the articles and any unanimous shareholder agreement, the board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.
8.02 Commissions.The board may from time to time authorize the Corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
8.03 Registration of Transfers.Subject to the Act, no transfer of a share shall be registered in a securities register except upon presentation of the certificate representing such share with an endorsement which complies with the Act made thereon or delivered therewith duly executed by an appropriate person as provided by the Act, together with such reasonable assurance that the endorsement is genuine and effective as the board may from time to time prescribe, upon payment of all applicable taxes and any reasonable fees prescribed by the board, upon compliance with such restrictions on transfer as are authorized by the articles and upon satisfaction of any lien referred to in section 8.09.
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8.04 Non-recognition of Trusts.Subject to the Act, the Corporation may treat the registered holder of any share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payment in respect of the share, and otherwise to exercise all the rights and powers of an owner of the share.
8.05 Share Certificates.Every holder of one or more shares of the Corporation shall be entitled, at his option, to a share certificate, or to a non-transferable written certificate of acknowledgement of his right to obtain a share certificate, stating the number and class or series of shares held by him as shown on the securities register.
Such certificates shall be in such form as the board may from time to time approve. Any such certificate shall be signed in accordance with section 2.04 and need not be under the corporate seal.
8.06 Replacement of Share Certificates.The board or any officer or agent designated by the board may in its or his discretion direct the issue of a new share or other such certificate in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken on payment of such reasonable fee and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the board may from time to time prescribe, whether generally or in any particular case.
8.07 Joint Shareholders.If two or more persons are registered as joint holders of any share, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such share.
8.08 Deceased Shareholders.In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make any dividend or other payments in respect thereof except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents.
8.09 Lien of Indebtedness.If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 Dividends.Subject to the Act, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation. Any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9.02 Dividend Cheques.A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at his recorded address, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their recorded address. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the board may from time to time prescribe, whether generally or in any particular case.
9.03 Record Date for Dividends and Rights.The board may fix in advance a date, preceding by not more than 50 days the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, and notice of any such record date shall be given not less than 7 days before such record date in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the board.
SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 Annual Meetings.The annual meeting of shareholders shall be held at such time in each year and, subject to section 10.03, at such place as the board, the chairman of the board, the managing director or the president may from time to time determine, for
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the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting
10.02 Special Meetings.The board, the chairman of the board, the managing director or the president shall have power to call a special meeting of shareholders at any time.
10.03 Place of Meetings.Meetings of shareholders shall be held at the registered office of the Corporation or elsewhere in the municipality in which the registered office is situate or, if the board shall so determine, at some other place in Alberta or, if all the shareholders entitled to vote at the meeting so agree, at some place outside Alberta.
10.04 Notice of Meetings.Notice of the time and place of each meeting of shareholders shall be given in the manner provided in Section Eleven not less than 21 nor more than 50 days before the date of the meeting to each director, to the auditor, and to each shareholder who at the close of business on the record date for notice is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditors report, election of directors and reappointment of the incumbent auditor shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.
10.05 List of Shareholders Entitled to Notice.If the Corporation has more than 15 shareholders entitled to vote at a meeting of shareholders, it shall prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder entitled to vote at the meeting. If a record date for the meeting is fixed pursuant to section 10.06, the shareholders listed shall be those registered at the close of business on such record date. If no record date is fixed, the shareholders listed shall be those registered at the close of business on the day immediately preceding the day on which notice of the meeting is given or, where no such notice is given, on the day on which the meeting is held. The list shall be available for examination by any shareholder during usual business hours at the records office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared. Where a separate list of shareholders has not been prepared, the names of persons appearing in the securities register at the requisite time as the holder of one or more shares carrying the right to vote at such meeting shall be deemed to be a list of shareholders.
10.06 Record Date for Notice.If no such record date is so fixed, the record date for the determination of the shareholders entitled to receive notice of the meeting shall be at the close of business on the day immediately preceding the day on which the notice is given or, if no notice is given, shall be the day on which the meeting is held.
10.07 Meetings Without Notice.A meeting of shareholders may be held without notice at any time and place permitted by the Act (a) if all the shareholders entitled to vote
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thereat are present in person or duly represented or if those not present or represented waive notice of or otherwise consent to such meeting being held, and (b) if the auditors and the directors are present or waive notice of or otherwise consent to such meeting being held, so long as such shareholders, auditors or directors present are not attending for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. At such a meeting any business may be transacted which the Corporation at a meeting of shareholders may transact. If the meeting is held at a place outside Alberta, shareholders not present or duly represented, but who have waived notice of or otherwise consented to such meeting, shall also be deemed to have consented to the meeting being held at such place.
10.08 Chairman. Secretary and Scrutineers.The chairman of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed and who is present at the meeting: managing director, president, chairman of the board, or a vice-president who is a shareholder. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting.
10.09 Persons Entitled to be Present.The only persons entitled to be present at a meeting of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting.
10.10 Quorum.Subject to the Act in respect of a sole shareholder, a quorum for the transaction of business at any meeting of shareholders shall be two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxyholder or representative for a shareholder so entitled, and together holding or representing shares of the Corporation having not less than 51% of the outstanding votes entitled to be cast at the meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.11 Right to Vote.Every person named in the list referred to in section 10.05 shall be entitled to vote the shares shown thereon opposite his name at the meeting to which such list relates, except to the extent that (a) where the Corporation has fixed a record date in respect of such meeting, such person has transferred any of his shares after such record date or, where the Corporation has not fixed a record date in respect of such
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meeting, such person has transferred any of his shares after the date on which such list is prepared, and (b) the transferee, having produced properly endorsed certificates evidencing such shares or having otherwise established that he owns such shares, has demanded not later than 2 days before the meeting or any shorter period that the chairman of the meeting may permit that his name be included in such list. In any such excepted case the transferee shall be entitled to vote the transferred shares at such meeting.
10.12 Proxyholders and Representatives.Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder and one or more alternate proxyholders, to attend and act as his representative at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or his attorney and shall conform with the requirements of the Act. Alternatively, every such shareholder which is a body corporate or association may authorize by resolution of its directors or governing body an individual to represent it at a meeting of shareholders and such individual may exercise on the shareholders behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting. Any such proxyholder or representative need not be a shareholder.
10.13 Time for Deposit of Proxies.The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours, excluding Saturdays and holidays, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time having been specified in such notice, it has been received by the secretary of the Corporation or by the chairman of the meeting or any adjournment thereof prior to the time of voting.
10.14 Joint Shareholders.If two or more persons hold shares jointly, any one of them present in person or duly represented at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented and vote, they shall vote as one the shares jointly held by them.
10.15 Votes to Govern.At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by law, be determined by a majority of the votes cast on the question. In case of an equality of votes either upon a show of hands or upon a poll, the chairman of the meeting shall be entitled to a second or casting vote.
10.16 Show of Hands.Subject to the Act, any question at a meeting of shareholders shall be decided by a show of hands, unless a ballot thereon is required or demanded as hereinafter provided, and upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been
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taken upon a question, unless a ballot thereon is so required or demanded, a declaration by the chairman of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the shareholders upon the said question.
10.17 Ballots.On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairman may require a ballot or any person who is present and entitled to vote on such question at the meeting may demand a ballot. A ballot so required or demanded shall be taken in such manner as the chairman shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which he is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon the said question.
10.18 Adjournment.The chairman at a meeting of shareholders may, with the consent of the meeting and subject to such conditions as the meeting may decide, adjourn the meeting from time to time and from place to place. If a meeting of shareholders is adjourned for less than 30 days, it shall not be necessary to give notice of the adjourned meeting, other than by announcement at the time of adjournment. Subject to the Act, if a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.19 Action in Writing by Shareholders.A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
10.20 Only One Shareholder.Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or duly represented constitutes a meeting.
10.21 Meeting by Telephone.A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephone or other communications facility that permits all persons participating in the meeting to hear each other, and a person participating in such a meeting by those means is deemed to be present at the meeting.
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SECTION ELEVEN
NOTICES
11.01 Method of Giving Notice.Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the regulations thereunder, the articles, the by-laws or otherwise to a shareholder, director, officer, auditor or member of a committee of the board shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to his recorded address or if mailed to him at his recorded address by prepaid ordinary or air mail or if sent to him at his recorded address by any means of prepaid transmitted or recorded communication. A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been given when deposited in a post office or public letter box; and a notice so sent by any means of transmitted or recorded communication shall be deemed to have been given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the board in accordance with any information believed by him to be reliable.
11.02 Notice to Joint Shareholders.If two or more persons are registered as joint holders of any share, any notice may be addressed to all such joint holders, but notice addressed to one of such persons shall be sufficient notice to all of them.
11.03 Computation of Time.In computing the date when notice must be given under any provision requiring a specified number of days notice of any meeting or other event, the day of giving the notice shall be excluded and the day of the meeting or other event shall be included, unless the computation of time is required by law to be performed differently.
11.04 Undelivered Notices.If any notice given to a shareholder pursuant to section 11.01 is returned on three consecutive occasions because he cannot be found, the Corporation shall not be required to give any further notices to such shareholder until he informs the Corporation in writing of his new address.
11.05 Omissions and Errors.The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.
11.06 Persons Entitled by Death or Operation of Law.Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom he derives his title to such share
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prior to his name and address being entered on the securities register (whether such notice was given before or after the happening of the event upon which he became so entitled) and prior to his furnishing to the Corporation the proof of authority or evidence of his entitlement prescribed by the Act.
11.07 Waiver of Notice.Any shareholder, proxyholder or other person entitled to attend a meeting of shareholders, director, officer, auditor or member of a committee of the board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to him under the Act, the regulations thereunder, the articles, the by-laws or otherwise, and such waiver or abridgement, whether given before or after the meeting or other extent of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board or a committee of the board which may be given in any manner.
11.08 Interpretation.In this by-law, recorded address means in the case of a shareholder his address as recorded in the securities register; and in the case of joint shareholders the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one; and in the case of a director, officer, auditor or member of a committee of the board, his latest address as recorded in the records of the Corporation.
SECTION TWELVE
EFFECTIVE DATE
12.01 Effective Date.This by-law shall come into force when made by the board in accordance with the Act.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
/s/ Donald R. Leitch | C.S. | /s/ Beverley D. Liske | ||
President | Secretary |
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The undersigned, being the sole director of 672539 ALBERTA LTD., pursuant to subsection 112(1) of the Business Corporations Act (Alberta), by his signature hereby makes the foregoing By-law No. 2 of the by-laws of the Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
The undersigned, being the sole shareholder of 672539 ALBERTA LTD., pursuant to subsection 136(1) of the Business Corporations Act (Alberta), by his signature hereby confirms without amendment the foregoing By-law No. 2 of the by-laws of the Corporation made by the director of the Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
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672539 ALBERTA LTD.
BY-LAW NO. 2
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of 672539 ALBERTA LTD. (hereinafter called the Corporation) as follows:
1. The directors may and they are hereby authorized from time to time to
(a) | borrow money upon the credit of the Corporation; |
(b) | limit or increase the amount to be borrowed; |
(c) | issue, reissue, sell or pledge bonds, debentures, notes or other securities or debt obligations of the Corporation; |
(d) | issue, sell or pledge such bonds, debentures, notes or other securities or debt obligations for such sums and at such prices as may be deemed expedient; and |
(e) | mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the Corporation, and the undertaking and rights of the Corporation to secure any such bonds, debentures, notes or other securities or debt obligations, or to secure any present or future borrowing, liability or obligation of the Corporation. |
2. The directors may from time to time by resolution delegate to the Chairman of the Board of Directors or the President together with the Secretary or to any two directors of the Corporation all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
3. The powers hereby conferred shall be deemed to be in supplement of and not in substitution for any powers to borrow money for the purposes of the Corporation possessed by its directors or officers independently of a borrowing by-law.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
/s/ Donald R. Leitch | C.S. | /s/ Beverley D. Liske | ||
President | Secretary |
The undersigned, being the sole director of 672539 ALBERTA LTD., pursuant to subsection 112(1) of the Business Corporations Act (Alberta), by his signature hereby makes the foregoing By-law No. 2 of the by-laws of the Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
The undersigned, being the sole shareholder of 672539 ALBERTA LTD., pursuant to subsection 136(1) of the Business Corporations Act (Alberta), by his signature hereby confirms without amendment the foregoing By-law No. 2 of the by-laws of the Corporation made by the director of the Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
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672539 ALBERTA LTD.
CANADIAN IMPERIAL BANK OF COMMERCE
BY-LAW NO. 3
A By-Law respecting the borrowing of money, the issuing of securities and the securing of liabilities by 672539 ALBERTA LTD. (the Company).
BE IT ENACTED as a By-Law of the Company as follows:
The directors of the Company may from time to time
(a) | borrow money or otherwise obtain credit upon the credit of the Company in such amounts and upon such terms as may be considered advisable; |
(b) | issue, reissue, sell or pledge debt obligations of the Company, including without limitation, bonds, debentures, debenture stock, notes or other securities or obligations of the Company, whether secured or unsecured for such sums, upons such terms, covenants and conditions and at such prices as may be deemed expedient; |
(c) | charge, mortgage, hypothecate, pledge, assign, transfer or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable property of the Company, including without limitation, book debts and unpaid calls, rights, powers, franchises and undertaking, to secure any money borrowed or any other debt or liability of the Company; |
(d) | delegate to such one or more of the officers and directors of the Company as may be designated by the directors all or any of the powers conferred by the foregoing clauses of this By-Law to such extent and in such manner as the directors shall determine at the time of each delegation. |
PASSED by the directors and sealed with the Companys seal this 6th day of November, 1995.
/s/ Donald R. Leitch |
C.S. | /s/ Beverley D. Liske | ||
President | Secretary |
The undersigned, being the sole director of 672539 ALBERTA LTD., pursuant to subsection 112(1) of the Business Corporations Act (Alberta), by his signature hereby makes the foregoing By-law No. 3 of the by-laws of the said Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
The undersigned, being the sole shareholder of 672539 ALBERTA LTD., pursuant to subsection 136(1) of the Business Corporations Act (Alberta), by his signature hereby confirms without amendment the foregoing By-law No. 3 of the by-laws of the said Corporation made by the director of the Corporation.
DATED the 6th day of November, 1995.
/s/ Donald R. Leitch |
Donald R. Leitch |
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Exhibit T3B.4
BY-LAW NO. 1
A by-law relating generally to the
transaction of the business and
affairs of
672540 ALBERTA LTD.
Contents
One | - | Interpretation | ||
Two | - | Business of the Corporation | ||
Three | - | Borrowing and Security | ||
Four | - | Directors | ||
Five | - | Committees | ||
Six | - | Officers | ||
Seven | - | Protection of Directors, Officers and Others | ||
Eight | - | Shares | ||
Nine | - | Dividends and Rights | ||
Ten | - | Meetings of Shareholders | ||
Eleven | - | Notices | ||
Twelve | - | Effective Date |
BE IT ENACTED as a by-law of the Corporation as follows:
TABLE OF CONTENTS
SECTION 1 |
INTERPRETATION |
5 | ||||
1.01 |
Definitions |
5 | ||||
SECTION 2 |
BUSINESS OF THE CORPORATION |
6 | ||||
2.01 |
Registered Office |
6 | ||||
2.02 |
Corporate Seal |
6 | ||||
2.03 |
Financial Year |
6 | ||||
2.04 |
Execution of Instruments |
6 | ||||
2.05 |
Banking Arrangements |
6 | ||||
2.06 |
Voting Rights in Other Bodies Corporate |
6 | ||||
2.07 |
Divisions |
6 | ||||
SECTION 3 |
BORROWING AND SECURITY |
7 | ||||
3.01 |
Borrowing Power |
7 | ||||
3.02 |
Delegation |
7 | ||||
SECTION 4 |
DIRECTORS |
8 | ||||
4.01 |
Number of Directors |
8 | ||||
4.02 |
Qualification |
8 | ||||
4.03 |
Election and Term |
8 | ||||
4.04 |
Removal of Directors |
8 | ||||
4.05 |
Vacation of Office |
8 | ||||
4.06 |
Vacancies |
8 | ||||
4.07 |
Action by the Board |
9 | ||||
4.08 |
At Least Half Canadians at Meetings |
9 | ||||
4.09 |
Meeting by Telephone |
9 | ||||
4.10 |
Place of Meeting |
9 | ||||
4.11 |
Calling of Meetings |
9 | ||||
4.12 |
Notice of Meeting |
9 | ||||
4.13 |
First Meeting of New Board |
10 | ||||
4.14 |
Adjourned Meeting |
10 | ||||
4.15 |
Regular Meetings |
10 | ||||
4.16 |
Chairman |
10 | ||||
4.17 |
Quorum |
10 | ||||
4.18 |
Votes to Govern |
10 | ||||
4.19 |
Conflict of Interest |
11 | ||||
4.20 |
Remuneration and Expenses |
11 |
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SECTION 5 |
COMMITTEES |
11 | ||||
5.01 |
Committees of the Board |
11 | ||||
5.02 |
Transaction of Business |
11 | ||||
5.03 |
Advisory Bodies |
11 | ||||
5.04 |
Procedure |
11 | ||||
SECTION 6 |
OFFICERS |
12 | ||||
6.01 |
Appointment |
12 | ||||
6.02 |
Chairman of the Board |
12 | ||||
6.03 |
Managing Director |
12 | ||||
6.04 |
President |
12 | ||||
6.05 |
Secretary |
12 | ||||
6.06 |
Treasurer |
12 | ||||
6.07 |
Powers and Duties of Officers |
13 | ||||
6.08 |
Term of Office |
13 | ||||
6.09 |
Agents and Attorneys |
13 | ||||
6.10 |
Conflict of Interest |
13 | ||||
SECTION 7 |
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS |
13 | ||||
7.01 |
Limitation of Liability |
13 | ||||
7.02 |
Indemnity |
14 | ||||
SECTION 8 |
SHARES |
14 | ||||
8.01 |
Allotment of Shares |
14 | ||||
8.02 |
Commissions |
14 | ||||
8.03 |
Registration of Transfers |
14 | ||||
8.04 |
Non-recognition of Trusts |
15 | ||||
8.05 |
Share Certificates |
15 | ||||
8.06 |
Replacement of Share Certificates |
15 | ||||
8.07 |
Joint Shareholders |
15 | ||||
8.08 |
Deceased Shareholders |
15 | ||||
8.09 |
Lien for Indebtedness |
15 | ||||
SECTION 9 |
DIVIDENDS AND RIGHTS |
16 | ||||
9.01 |
Dividends |
16 | ||||
9.02 |
Dividend Cheques |
16 | ||||
9.03 |
Record Date for Dividends and Rights |
16 |
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SECTION 10 |
MEETINGS OF SHAREHOLDERS |
16 | ||||
10.01 |
Annual Meetings |
16 | ||||
10.02 |
Special Meetings |
17 | ||||
10.03 |
Place of Meetings |
17 | ||||
10.04 |
Notice of Meetings |
17 | ||||
10.05 |
List of Shareholders Entitled to Notice |
17 | ||||
10.06 |
Record Date for Notice |
17 | ||||
10.07 |
Meetings without Notice |
17 | ||||
10.08 |
Chairman, Secretary and Scrutineers |
18 | ||||
10.09 |
Persons Entitled to be Present |
18 | ||||
10.10 |
Quorum |
18 | ||||
10.11 |
Right to Vote |
18 | ||||
10.12 |
Proxyholders and Representatives |
19 | ||||
10.13 |
Time for Deposit of Proxies |
19 | ||||
10.14 |
Joint Shareholders |
19 | ||||
10.15 |
Votes to Govern |
19 | ||||
10.16 |
Show of Hands |
19 | ||||
10.17 |
Ballots |
20 | ||||
10.18 |
Adjournment |
20 | ||||
10.19 |
Action in Writing by Shareholders |
20 | ||||
10.20 |
Only One Shareholder |
20 | ||||
10.21 |
Meeting by Telephone |
20 | ||||
SECTION 11 |
NOTICES |
21 | ||||
11.01 |
Method of Giving Notices |
21 | ||||
11.02 |
Notice to Joint Shareholders |
21 | ||||
11.03 |
Computation of Time |
21 | ||||
11.04 |
Undelivered Notices |
21 | ||||
11.05 |
Omissions and Errors |
21 | ||||
11.06 |
Persons Entitled by Death or Operation of Law |
21 | ||||
11.07 |
Waiver of Notice |
22 | ||||
11.08 |
Interpretation |
22 | ||||
SECTION 12 |
EFFECTIVE DATE |
22 | ||||
12.01 |
Effective Date |
22 |
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SECTION ONE
INTERPRETATION
1.01 Definitions.In the by-laws of the Corporation, unless the context otherwise requires:
Act means the Business Corporations Act (Alberta), or any statute that may be substituted therefor, as from time to time amended;
appoint includes elect and vice versa;
articles means the articles attached to the Certificate of Incorporation of the Corporation as from time to time amended or restated;
board means the board of directors of the Corporation;
by-laws means this by-law and all other by-laws of the Corporation from time to time in force and effect;
cheque includes a draft;
Corporation means the corporation incorporated under the Act by the said certificate to which the articles are attached and named 672540 Alberta Ltd.;
meeting of shareholders includes an annual meeting of shareholders and a special meeting of shareholders;
recorded address has the meaning set forth in section 11.08;
Regulations means the Regulations under the Act as published or from time to time amended and every regulation that may be substituted therefor and, in the case of such substitution, any references in the by-laws of the Corporation to provisions of the Regulations shall be read as references to the substituted provisions therefor in the new regulations; and
special meeting of shareholders includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders.
Except as defined above, words and expressions defined in the Act and the Regulations, including resident Canadian and unanimous shareholder agreement, have the same meanings when used herein. Words importing the singular number include the plural and vice versa; words importing gender include the masculine, feminine and neuter genders; and words importing a person include an individual, partnership, association, body corporate, trustee, executor, administrator and legal representative.
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SECTION TWO
BUSINESS OF THE CORPORATION
2.01 Registered Office.The registered office of the Corporation shall be at the place within the Province of Alberta as is specified in the notice thereof filed with the articles and thereafter as the board may from time to time determine.
2.02 Corporate Seal.The Corporation may have one or more different corporate seals, which seals may be adopted or changed from time to time by the board.
2.03 Financial Year.The financial year of the Corporation shall end on such date as may be determined by the directors from time to time.
2.04 Execution of Instruments.Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two directors or officers. In addition, this does not limit the power of the board to, from time to time, direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal to any instrument requiring the same.
2.05 Banking Arrangements.The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time prescribe.
2.06 Voting Rights in Other Bodies Corporate.The signing officers of the Corporation under section 2.04 may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such instruments shall be in favour of such persons as may be determined by the officers executing or arranging for them. In addition, the board may from time to time direct the manner in which and the persons by whom any particular voting rights or class of voting rights may or shall be exercised.
2.07 Divisions.The board may cause the business and operations of the Corporation or any part thereof to be divided into one or more divisions upon a basis, including without limitation types of business or operations, geographical territories, product lines or goods or services, as may be considered appropriate in each case. In connection with any such division the board or, subject to any direction by the board, the chief executive officer, may authorize from time to time, upon such basis as may be considered appropriate in each case:
- 6 -
(a) | Subdivision and Consolidationthe further division of the business and operations of any division into sub-units and the consolidation of the business and operations of any divisions and sub-units; |
(b) | Namethe designation of any division or sub-unit by, and the carrying on of the business and operations of any division or sub-unit under, a name other than the name of the Corporation; provided that the Corporation shall set out its name in legible characters in all places required by law; and |
(c) | Officersthe appointment of officers for any division or sub-unit, the determination of their powers and duties, and the removal of any officers so appointed, provided that any such officers shall not by reason of their being officers of a division or sub-unit, be officers of the Corporation. |
SECTION THREE
BORROWING AND SECURITY
3.01 Borrowing Power.Without limiting the borrowing powers of the Corporation as set forth in the Act, but subject to the articles and any unanimous shareholder agreement, the board may from time to time on behalf of the Corporation, without authorization of the shareholders:
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge bonds, debentures, notes or other evidences of indebtedness or guarantee of the Corporation whether secured or unsecured; |
(c) | to the extent permitted by the Act, give a guarantee on behalf of the Corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation. |
Nothing in this section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
3.02 Delegation.The board may from time to time delegate to a committee of the board a director or an officer of the Corporation or any other person as may be
- 7 -
designated by the board all or any of the powers conferred on the board by section 3.01 or by the Act to such extent and in such manner as the board may determine at the time of such delegation.
SECTION FOUR
DIRECTORS
4.01 Number of Directors.Until changed in accordance with the Act, the board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the articles.
4.02 Qualification.No person shall be qualified for election as a director if he is less than 18 years of age; if he is a dependent adult as defined in The Dependent Adults Act (Alberta) or is the subject of a certificate of incapacity under that Act, is a formal patient as defined in The Mental Health Act (Alberta), is the subject of an order under The Mentally Incapacitated Persons Act (Alberta) appointing a committee of his person or estate or both, or has been found to be a person of unsound mind by a court in Alberta or elsewhere, if he is not an individual; or if he has the status of a bankrupt. A director need not be a shareholder. At least half of the directors shall be resident Canadians.
4.03 Election and Term.The election of directors shall take place at each annual meeting of shareholders and all the directors then in office shall retire but, if qualified, shall be eligible for re-election. The number of directors to be elected at any such meeting shall be the number of directors then in office unless the directors otherwise determine. Where the shareholders adopt an amendment to the articles to increase the number or minimum number of directors, the shareholders may, at the meeting at which they adopt the amendment, elect the additional number of directors authorized by the amendment. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.
4.04 Removal of Directors.Subject to the Act or a unanimous shareholder agreement the shareholders may by resolution passed at a meeting of shareholders specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting, failing which it may be filled by the board.
4.05 Vacation of Office.A director ceases to hold office when he dies; he is removed from office by the shareholders; he ceases to be qualified for election as a director; or his written resignation is sent or delivered to the Corporation, or, if a time is specified in such resignation, at the time so specified, whichever is later.
4.06 Vacancies.Subject to the Act, a quorum of the board may appoint a qualified individual to fill a vacancy in the board.
- 8 -
4.07 Action by the Board.Subject to any unanimous shareholder agreement, the board shall manage the business and affairs of the Corporation. The powers of the board may be exercised at a meeting (subject to sections 4.08 and 4.09) at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the board. Where there is a vacancy in the board, the remaining directors may exercise all the powers of the board so long as a quorum remains in office.
4.08 At Least Half Canadians at Meetings.The board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least half of the directors present are resident Canadians, except where
(a) | a resident Canadian director who is unable to be present approves in writing or by telephone or other communications facilities the business transacted at the meeting; and |
(b) | the number of resident Canadian directors present at the meeting, together with any resident Canadian director who gives his approval under clause (a), totals at least half of the directors present at the meeting. |
4.09 Meeting Telephone.A director may participate in a meeting of the board or of a committee of the board by means of conference telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed to be present at the meeting.
4.10 Place of Meetings.Meetings of the board may be held at any place in or outside Alberta.
4.11 Calling of Meeting.Meetings of the board shall be held from time to time at such time and at such place as the board, the chairman of the board, the managing director, the president or any two directors may determine.
4.12 Notice of Meeting.Notice of the time and place of each meeting of the board shall be given in the manner provided in Section Eleven to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified, including, if required by the Act, any proposal to:
(a) | submit to the shareholders any question or matter requiring approval of the shareholders; |
(b) | fill a vacancy among the directors or in the office of auditor; |
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(c) | issue securities, except in the manner and on the terms authorized by the directors; |
(d) | declare dividends; |
(e) | purchase, redeem or otherwise acquire shares issued by the Corporation, except in the manner and on the terms authorized by the directors; |
(f) | pay a commission for the sale of shares; |
(g) | approve a management proxy circular; |
(h) | approve any annual financial statements; or |
(i) | adopt, amend or repeal by-laws. |
4.13 First Meeting of New Board.Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting immediately following the meeting of shareholders at which such board is elected.
4.14 Adjourned Meeting.Notice of an adjourned meeting of the board is not required if the time and place of the adjourned meeting is announced at the original meeting.
4.15 Regular Meetings.The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except where the Act requires the purpose thereof or the business to be transacted thereat to be specified.
4.16 Chairman.The chairman of any meeting of the board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chairman of the board, managing director or president. If no such officer is present, the directors present shall choose one of their number to be chairman.
4.17 Quorum.Subject to section 4.08, the quorum for the transaction of business at any meeting of the board shall be a majority of directors or such greater number of directors as the board may from time to time determine. Where the Corporation has a board consisting of only one director, that director may constitute a meeting.
4.18 Votes to Govern.At all meetings of the board every question shall be decided by a majority of the votes cast on the question. In case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
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4.19 Conflict of Interest.A director who is a party to, or who is a director or officer of or has a material interest in any person who is a party to, a material contract or proposed material contract with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided by the Act. Any such contract or proposed contract shall be referred to the board or shareholders for approval even if such contract is one that in the ordinary course of the Corporations business would not require approval by the board or shareholders. Such a director shall not vote on any resolution to approve any such contract or proposed contract except as permitted by the Act.
4.20 Remuneration and Expenses.Subject to any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
SECTION FIVE
COMMITTEES
5.01 Committees of the Board.The board may appoint one or more committees of the board, however designated, and delegate to any such committee any of the powers of the board except those which pertain to items which, under the Act, a committee of the board has no authority to exercise. At least half of the members of any such committee shall be resident Canadians.
5.02 Transaction of Business.The powers of a committee of the board may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place in or outside Canada.
5.03 Advisory Bodies.The board may from time to time appoint such advisory bodies as it may deem advisable.
5.04 Procedure.Unless otherwise determined by the board, each committee and advisory body shall have power to fix its quorum at not less than a majority of its members, to elect its chairman and to regulate its procedure.
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SECTION SIX
OFFICERS
6.01 Appointment.Subject to any unanimous shareholder agreement, the board may from time to time appoint a president, one or more vice-presidents (to which title may be added words indicating seniority or function), a secretary, a treasurer and such other officers as the board may determine, including one or more assistants to any of the officers so appointed. One person may hold more than one office. The board may specify the duties of and, in accordance with this by-law and subject to the Act, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not be a director.
6.02 Chairman of the Board.The board may from time to time also appoint a chairman of the board who shall be a director. If appointed, the board may assign to him any of the powers and duties that are by any provisions of this by-law assigned to the managing director or to the president; and he shall have such other powers and duties as the board may specify.
6.03 Managing Director.The board may from time to time also appoint a managing director who shall be a resident Canadian and a director. If appointed, he shall be the chief executive officer and, subject to the authority of the board, shall have general supervision of the business and affairs of the Corporation; and he shall have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the managing director shall also have the powers and duties of that office.
6.04 President.The president shall be the chief operating officer and, subject to the authority of the board, shall have general supervision of the business of the Corporation, and he shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.
6.05 Secretary.The secretary shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; he shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the board; he shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation and of all books, records and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and he shall have such other powers and duties as otherwise may be specified.
6.06 Treasurer.The treasurer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; he shall render to the board
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whenever required an account of all his transactions as treasurer and of the financial position of the Corporation; and he shall have such other powers and duties as otherwise may be specified.
6.07 Powers and Duties of Officers.The powers and duties of all officers shall be such as, the terms of their engagement call for or as the board or (except for those whose powers and duties are to be specified only by the board) the chief executive officer may specify. The board and (except as aforesaid) the chief executive officer may, from time to time and subject to the provisions of the Act, vary, add to or limit the powers and duties of any officer. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the board or the chief executive officer otherwise directs.
6.08 Term of Office.The board, in its discretion, may remove any officer of the Corporation. Otherwise each officer appointed by the board shall hold office until his successor is appointed or until his earlier resignation.
6.09 Agents and Attorneys.The Corporation, by or under the authority of the board, shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers (including the power to subdelegate) of management, administration or otherwise as may be thought fit.
6.10 Conflict of Interest.An officer shall disclose his interest in any material contract or proposed material contract with the Corporation in accordance with section 4.19.
SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability.Every director and officer of the Corporation in exercising his powers and discharging his duties shall act honestly and in good faith with a view to the best interests of the Corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Subject to the foregoing, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director, officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on his part, or for any other loss, damage or misfortune which shall happen in the execution of the duties of his office or in relation thereto; provided that nothing herein shall relieve any director or officer
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from the duty to act in accordance with the Act and the regulations thereunder or from liability for any breach thereof.
7.02 Indemnity.Subject to the Act, the Corporation shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or such body corporate, if (a) he acted honestly and in good faith with a view to the best interests of the Corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Corporation may also indemnify such person in such other circumstances as the Act or law permits. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
SECTION EIGHT
SHARES
8.01 Allotment of Shares.Subject to the Act, the articles and any unanimous shareholder agreement, the board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.
8.02 Commissions.The board may from time to time authorize the Corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
8.03 Registration of Transfers.Subject to the Act, no transfer of a share shall be registered in a securities register except upon presentation of the certificate representing such share with an endorsement which complies with the Act made thereon or delivered therewith duly executed by an appropriate person as provided by the Act, together with such reasonable assurance that the endorsement is genuine and effective as the board may from time to time prescribe, upon payment of all applicable taxes and any reasonable fees prescribed by the board, upon compliance with such restrictions on transfer as are authorized by the articles and upon satisfaction of any lien referred to in section 8.09.
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8.04 Non-recognition of Trusts.Subject to the Act, the Corporation may treat the registered holder of any share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payment in respect of the share, and otherwise to exercise all the rights and powers of an owner of the share.
8.05 Share Certificates.Every holder of one or more shares of the Corporation shall be entitled, at his option, to a share certificate, or to a non-transferable written certificate of acknowledgement of his right to obtain a share certificate, stating the number and class or series of shares held by him as shown on the securities register.
Such certificates shall be in such form as the board may from time to time approve. Any such certificate shall be signed in accordance with section 2.04 and need not be under the corporate seal.
8.06 Replacement of Share Certificates.The board or any officer or agent designated by the board may in its or his discretion direct the issue of a new share or other such certificate in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken on payment of such reasonable fee and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the board may from time to time prescribe, whether generally or in any particular case.
8.07 Joint Shareholders.If two or more persons are registered as joint holders of any share, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such share.
8.08 Deceased Shareholders.In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make any dividend or other payments in respect thereof except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents.
8.09 Lien of Indebtedness.If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 Dividends.Subject to the Act, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation. Any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9.02 Dividend Cheques.A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at his recorded address, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their recorded address. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the board may from time to time prescribe, whether generally or in any particular case.
9.03 Record Date for Dividends and Rights.The board may fix in advance a date, preceding by not more than 50 days the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, and notice of any such record date shall be given not less than 7 days before such record date in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the board.
SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 Annual Meetings.The annual meeting of shareholders shall be held at such time in each year and, subject to section 10.03, at such place as the board, the chairman of the board, the managing director or the president may from time to time determine, for
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the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting
10.02 Special Meetings.The board, the chairman of the board, the managing director or the president shall have power to call a special meeting of shareholders at any time.
10.03 Place of Meetings.Meetings of shareholders shall be held at the registered office of the Corporation or elsewhere in the municipality in which the registered office is situate or, if the board shall so determine, at some other place in Alberta or, if all the shareholders entitled to vote at the meeting so agree, at some place outside Alberta.
10.04 Notice of Meetings.Notice of the time and place of each meeting of shareholders shall be given in the manner provided in Section Eleven not less than 21 nor more than 50 days before the date of the meeting to each director, to the auditor, and to each shareholder who at the close of business on the record date for notice is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditors report, election of directors and reappointment of the incumbent auditor shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.
10.05 List of Shareholders Entitled to Notice.If the Corporation has more than 15 shareholders entitled to vote at a meeting of shareholders, it shall prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder entitled to vote at the meeting. If a record date for the meeting is fixed pursuant to section 10.06, the shareholders listed shall be those registered at the close of business on such record date. If no record date is fixed, the shareholders listed shall be those registered at the close of business on the day immediately preceding the day on which notice of the meeting is given or, where no such notice is given, on the day on which the meeting is held. The list shall be available for examination by any shareholder during usual business hours at the records office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared. Where a separate list of shareholders has not been prepared, the names of persons appearing in the securities register at the requisite time as the holder of one or more shares carrying the right to vote at such meeting shall be deemed to be a list of shareholders.
10.06 Record Date for Notice.If no such record date is so fixed, the record date for the determination of the shareholders entitled to receive notice of the meeting shall be at the close of business on the day immediately preceding the day on which the notice is given or, if no notice is given, shall be the day on which the meeting is held.
10.07 Meetings Without Notice.A meeting of shareholders may be held without notice at any time and place permitted by the Act (a) if all the shareholders entitled to vote
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thereat are present in person or duly represented or if those not present or represented waive notice of or otherwise consent to such meeting being held, and (b) if the auditors and the directors are present or waive notice of or otherwise consent to such meeting being held, so long as such shareholders, auditors or directors present are not attending for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. At such a meeting any business may be transacted which the Corporation at a meeting of shareholders may transact. If the meeting is held at a place outside Alberta, shareholders not present or duly represented, but who have waived notice of or otherwise consented to such meeting, shall also be deemed to have consented to the meeting being held at such place.
10.08 Chairman, Secretary and Scrutineers.The chairman of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed and who is present at the meeting: managing director, president, chairman of the board, or a vice-president who is a shareholder. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting.
10.09 Persons Entitled to be Present.The only persons entitled to be present at a meeting of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting.
10.10 Quorum.Subject to the Act in respect of a sole shareholder, a quorum for the transaction of business at any meeting of shareholders shall be two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxyholder or representative for a shareholder so entitled, and together holding or representing shares of the Corporation having not less than 51% of the outstanding votes entitled to be cast at the meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.11 Right to Vote.Every person named in the list referred to in section 10.05 shall be entitled to vote the shares shown thereon opposite his name at the meeting to which such list relates, except to the extent that (a) where the Corporation has fixed a record date in respect of such meeting, such person has transferred any of his shares after such record date or, where the Corporation has not fixed a record date in respect of such
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meeting, such person has transferred any of his shares after the date on which such list is prepared, and (b) the transferee, having produced properly endorsed certificates evidencing such shares or having otherwise established that he owns such shares, has demanded not later than 2 days before the meeting or any shorter period that the chairman of the meeting may permit that his name be included in such list. In any such excepted case the transferee shall be entitled to vote the transferred shares at such meeting.
10.12 Proxyholders and Representatives.Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder and one or more alternate proxyholders, to attend and act as his representative at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or his attorney and shall conform with the requirements of the Act. Alternatively, every such shareholder which is a body corporate or association may authorize by resolution of its directors or governing body an individual to represent it at a meeting of shareholders and such individual may exercise on the shareholders behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting. Any such proxyholder or representative need not be a shareholder.
10.13 Time for Deposit of Proxies.The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours, excluding Saturdays and holidays, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time having been specified in such notice, it has been received by the secretary of the Corporation or by the chairman of the meeting or any adjournment thereof prior to the time of voting.
10.14 Joint Shareholders.If two or more persons hold shares jointly, any one of them present in person or duly represented at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented and vote, they shall vote as one the shares jointly held by them.
10.15 Votes to Govern.At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by law, be determined by a majority of the votes cast on the question. In case of an equality of votes either upon a show of hands or upon a poll, the chairman of the meeting shall be entitled to a second or casting vote.
10.16 Show of Hands.Subject to the Act, any question at a meeting of shareholders shall be decided by a show of hands, unless a ballot thereon is required or demanded as hereinafter provided, and upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been
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taken upon a question, unless a ballot thereon is so required or demanded, a declaration by the chairman of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the shareholders upon the said question.
10.17 Ballots.On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairman may require a ballot or any person who is present and entitled to vote on such question at the meeting may demand a ballot. A ballot so required or demanded shall be taken in such manner as the chairman shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which he is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon the said question.
10.18 Adjournment.The chairman at a meeting of shareholders may, with the consent of the meeting and subject to such conditions as the meeting may decide, adjourn the meeting from time to time and from place to place. If a meeting of shareholders is adjourned for less than 30 days, it shall not be necessary to give notice of the adjourned meeting, other than by announcement at the time of adjournment. Subject to the Act, if a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.19 Action in Writing by Shareholders.A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
10.20 Only One Shareholder.Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or duly represented constitutes a meeting.
10.21 Meeting by Telephone.A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephone or other communications facility that permits all persons participating in the meeting to hear each other, and a person participating in such a meeting by those means is deemed to be present at the meeting.
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SECTION ELEVEN
NOTICES
11.01 Method of Giving Notice.Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the regulations thereunder, the articles, the by-laws or otherwise to a shareholder, director, officer, auditor or member of a committee of the board shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to his recorded address or if mailed to him at his recorded address by prepaid ordinary or air mail or if sent to him at his recorded address by any means of prepaid transmitted or recorded communication. A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been given when deposited in a post office or public letter box; and a notice so sent by any means of transmitted or recorded communication shall be deemed to have been given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the board in accordance with any information believed by him to be reliable.
11.02 Notice to Joint Shareholders.If two or more persons are registered as joint holders of any share, any notice may be addressed to all such joint holders, but notice addressed to one of such persons shall be sufficient notice to all of them.
11.03 Computation of Time.In computing the date when notice must be given under any provision requiring a specified number of days notice of any meeting or other event, the day of giving the notice shall be excluded and the day of the meeting or other event shall be included, unless the computation of time is required by law to be performed differently.
11.04 Undelivered Notices.If any notice given to a shareholder pursuant to section 11.01 is returned on three consecutive occasions because he cannot be found, the Corporation shall not be required to give any further notices to such shareholder until he informs the Corporation in writing of his new address.
11.05 Omissions and Errors.The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.
11.06 Persons Entitled by Death or Operation of Law.Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom he derives his title to such share
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prior to his name and address being entered on the securities register (whether such notice was given before or after the happening of the event upon which he became so entitled) and prior to his furnishing to the Corporation the proof of authority or evidence of his entitlement prescribed by the Act.
11.07 Waiver of Notice.Any shareholder, proxyholder or other person entitled to attend a meeting of shareholders, director, officer, auditor or member of a committee of the board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to him under the Act, the regulations thereunder, the articles, the by-laws or otherwise, and such waiver or abridgement, whether given before or after the meeting or other extent of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board or a committee of the board which may be given in any manner.
11.08 Interpretation.In this by-law, recorded address means in the case of a shareholder his address as recorded in the securities register; and in the case of joint shareholders the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one; and in the case of a director, officer, auditor or member of a committee of the board, his latest address as recorded in the records of the Corporation.
SECTION TWELVE
EFFECTIVE DATE
12.01 Effective Date.This by-law shall come into force when made by the board in accordance with the Act.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
Donald R. Leitch |
C.S. | Beverley D. Liske | ||
President | Secretary |
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672540 ALBERTA LTD.
BY-LAW NO. 2
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of 672540 ALBERTA LTD. (hereinafter called the Corporation) as follows:
1. The directors may and they are hereby authorized from time to time to
(a) | borrow money upon the credit of the Corporation; |
(b) | limit or increase the amount to be borrowed; |
(c) | issue, reissue, sell or pledge bonds, debentures, notes or other securities or debt obligations of the Corporation; |
(d) | issue, sell or pledge such bonds, debentures, notes or other securities or debt obligations for such sums and at such prices as may be deemed expedient; and |
(e) | mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the Corporation, and the undertaking and rights of the Corporation to secure any such bonds, debentures, notes or other securities or debt obligations, or to secure any present or future borrowing, liability or obligation of the Corporation. |
2. The directors may from time to time by resolution delegate to the Chairman of the Board of Directors or the President together with the Secretary or to any two directors of the Corporation all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
3. The powers hereby conferred shall be deemed to be in supplement of and not in substitution for any powers to borrow money for the purposes of the Corporation possessed by its directors or officers independently of a borrowing by-law.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
Donald R. Leitch | C.S. | Beverley D. Liske | ||
President | Secretary |
672540 ALBERTA LTD.
CANADIAN IMPERIAL BANK OF COMMERCE
BY-LAW NO. 3
A By-Law respecting the borrowing of money, the issuing of securities and the securing of liabilities by 672540 ALBERTA LTD. (the Company).
BE IT ENACTED as a By-Law of the Company as follows:
The directors of the Company may from time to time
(a) | borrow money or otherwise obtain credit upon the credit of the Company in such amounts and upon such terms as may be considered advisable; |
(b) | issue, reissue, sell or pledge debt obligations of the Company, including without limitation, bonds, debentures, debenture stock, notes or other securities or obligations of the Company, whether secured or unsecured for such sums, upons such terms, covenants and conditions and at such prices as may be deemed expedient; |
(c) | charge, mortgage, hypothecate, pledge, assign, transfer or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable property of the Company, including without limitation, book debts and unpaid calls, rights, powers, franchises and undertaking, to secure any money borrowed or any other debt or liability of the Company; |
(d) | delegate to such one or more of the officers and directors of the Company as may be designated by the directors all or any of the powers conferred by the foregoing clauses of this By-Law to such extent and in such manner as the directors shall determine at the time of each delegation. |
PASSED by the directors and sealed with the Companys seal this 6th day of November, 1995.
Donald R. Leitch | C.S. | Beverley D. Liske | ||
President | Secretary |
Exhibit T3B.5
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
1683740 ALBERTA LTD.
FRASER MILNER CASGRAIN LLP
2900-10180 101 ST
EDMONTON AB T5J 3V5
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
1683740 ALBERTA LTD.
ARTICLE 1. INTERPRETATION
1.1 Definitions
In the By-laws, unless the context requires a different meaning:
(a) | Act shall mean the Business Corporations Act, RSA 2000, c. B-9, as amended, and any statute that may be substituted therefor; |
(b) | appoint shall include elect and vice versa; |
(c) | Board shall mean the board of directors or sole director of the Corporation; |
(d) | By-laws shall mean all by-laws of the Corporation which are in force; |
(e) | Corporation shall mean 1683740 ALBERTA LTD., a body corporate incorporated under the Act; |
(f) | President shall mean the person appointed as president of the Corporation; and |
(g) | Secretary shall mean the person appointed as secretary of the Corporation. |
1.2 Unless defined in section 1.1, words and phrases in the By-laws shall have the meaning set forth in the Act. Words importing the singular shall include the plural, and the converse shall also apply. Words importing gender shall include the masculine, feminine and neuter. Words importing persons shall include individuals, partnerships, associations, bodies corporate, trustees, executors, administrators, associations and legal representatives.
ARTICLE 2. LIEN ON SHARES
2.1 A lien on shares (the Subject Shares) registered in the name of a shareholder (the Subject Shareholder) for a debt of the Subject Shareholder to the Corporation (including an amount unpaid in
respect of a share already issued by the Corporation on the date it was continued under the Act), together with interest accrued thereon and any expenses incurred by the Corporation in respect of such debt (the sum of all three amounts shall herein be called the Debt), may be enforced by the Corporation by the sale of the Subject Shares, or by the sale of such of the Subject Shares as are required to satisfy the Debt, or by any other action, suit, remedy or proceeding authorized or permitted at law or in equity, provided that prior to selling the Subject Shares the Corporation shall give the Subject Shareholder 7 days written notice (the Notice) as follows:
(a) | stating the amount of the Debt; |
(b) | demanding immediate payment of the Debt; |
(c) | setting forth the matters contained in section 2.2; and |
(d) | setting forth the Corporations intention to sell the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, if the Debt remains in default for 7 days after receipt of the Notice by the Subject Shareholder. |
2.2 Immediately upon receipt of the Notice by the Subject Shareholder,
(a) | the Subject Shareholder shall deliver the security certificate representing the Subject Shares to the Corporation; |
(b) | until the Debt is satisfied in full, the president shall be constituted |
(i) | as the Subject Shareholders proxy to vote for and on his behalf in respect of the Subject Shares and as the Subject Shareholders attorney with full power and authority to assent to and adopt in writing any resolutions of the shareholders, |
(ii) | as the Subject Shareholders attorney with full power and authority to transfer the Subject Shares, and |
(iii) | as the Subject Shareholders agent with authority to receive and apply any dividends paid on the Subject Shares against the Debt. |
2.3 If the Corporation sells the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, the proceeds shall be applied in the following order:
(a) | in payment of any expenses incurred by reason of the Subject Shareholders default, including the cost of selling the Subject Shares; |
(b) | in satisfaction of the remainder of the Debt; and |
(c) | the residue, if any, shall be paid to the Subject Shareholder. |
2.4 If all of the Subject Shares are not sold to satisfy the Debt, the Corporation shall issue a security certificate to the Subject Shareholder in respect of the Subject Shares which are not sold.
ARTICLE 3. DIRECTORS
3.1 Calling Meetings
Upon the written request of a director, the Secretary shall call a meeting of the Board. If the Secretary is unavailable or fails to call a meeting within 24 hours of receipt of such request, any director may call a meeting of the Board in accordance with the provisions of section 3.2.
A meeting of the Board shall be called on 72 hours notice to each director, verbally or in writing, by means of any communication facilities available.
3.2 Place of Meetings
Meetings of the Board shall be held at the place described in the Notice of Meeting.
3.3 Chairman
The President shall act as chairman of a meeting of the Board, or if he is not present within fifteen minutes of the time fixed for holding the meeting, the directors present shall choose one of their number to act as chairman.
3.4 Secretary
If the Secretary is absent from a meeting of the Board, the chairman of the meeting shall appoint some person, who need not be a director, to act as secretary of the meeting.
3.5 Voting
Questions arising at a meeting of the Board shall be decided by a majority of the votes cast, excluding abstentions; and in the case of an equality of votes, the chairman of the meeting shall not be entitled to a second or casting vote.
3.6 Telecommunication Meetings
A director may participate in a meeting of the Board, or of a committee of the Board, by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
ARTICLE 4. OFFICERS
4.1 Appointment
The Board may appoint
(a) | a chairman of the Board; |
(b) | a president; |
(c) | one or more vice-presidents (to whose title may be added words indicating seniority or function); |
(d) | a secretary; |
(e) | a treasurer; and |
(f) | such other officers as the Board may determine, including one or more assistants to any of the officers appointed. |
4.2 Chairman of the Board
The chairman of the Board shall be a director and shall have such powers and duties as are called for by the terms of his engagement or as the Board may specify.
4.3 President
The president shall:
(a) | be the chief executive officer of the Corporation; |
(b) | have general supervision of the officers and the business of the Corporation; and |
(c) | have such other powers and duties as are called for by the terms of his engagement or as the Board may specify. |
4.4 Secretary
The secretary shall:
(a) | record the proceedings at all meetings of the Board and shareholders; |
(b) | prepare and keep minutes of all such meetings in a book kept for that purpose; |
(c) | give, or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the Board; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.5 Treasurer
The treasurer shall:
(a) | keep, or cause to be kept, proper accounting records in compliance with the Act; |
(b) | be responsible for the deposit of money, the safekeeping of securities and the disbursement of the Corporations funds; |
(c) | whenever required, render to the Board an account of all transactions and of the financial position of the Corporation; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.6 Powers and Duties
The powers and duties of all the officers of the corporation shall be such as the terms of their engagement call for or as the Board of Directors may determine. The powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the Board directs otherwise.
ARTICLE 5. INDEMNITY TO DIRECTORS, OFFICERS AND OTHERS
5.1 In all circumstances and to the fullest extent permitted by the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
ARTICLE 6. SHAREHOLDERS
6.1 Chairman
The President shall act as chairman of a meeting of shareholders or if the President is not present within fifteen (15) minutes of the time fixed for holding the meeting, the shareholders present and entitled to vote shall choose one of their number to act as chairman.
6.2 Secretary
The Secretary shall act as secretary of a meeting of shareholders or if the Secretary is absent from a shareholders meeting, the chairman of the meeting shall appoint some person, who need not be a shareholder, to act as secretary of the meeting.
6.3 Telecommunication Meetings
A shareholder or any other person entitled to attend a meeting of shareholders may participate in a meeting of shareholders by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
Enacted by the Board on June 13, 2012
Confirmed by the sole Shareholder on June 13, 2012.
BY-LAW NO. 2
A BY-LAW AUTHORIZING THE DIRECTORS TO BORROW AND GIVE SECURITY ON BEHALF OF 1683740 ALBERTA LTD.
|
The directors of the corporation may
(a) | borrow money on the credit of the corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the corporation; |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
Enacted by the Board on June 13, 2012.
Confirmed by the sole Shareholder on June 13, 2012.
Exhibit T3B.6
CNWL OIL (ESPAÑA) S.A.
CORPORATE BY-LAWS
Article 1. CORPORATE NAME
The name of the Company shall be CNWL OIL (ESPAÑA), S.A.
Article 2. CORPORATE PURPOSE
The purpose of the Company shall be the exploration and exploitation of hydrocarbons in compliance with the Law and other applicable legal provisions and it may perform any acts and agreements related to said corporate purpose.
Article 3. REGISTERED OFFICE
The company shall have its registered office in Madrid, at c/ Orense 58, 11B.
Article 4. DURATION
The Company is organized for an unlimited duration and have commenced its business on the date of its incorporation.
Article 5. CAPITAL
The capital stock is 787,416 euros and shall be represented by 140,610 shares of the same class and series, each with a par value of 5.60 euros, to the bearer, fully subscribed for and paid up, serially numbered from 1 through 140,610, both numbers included.
Article 6. TRANSFER OF SHARES
The shares shall be freely transferable.
Article 7. SHAREHOLDER RIGHTS
Each share confers upon its holder shareholder status and the right to one vote, in addition to the rest of the rights established by the Law in force.
Article 8. CO-OWNERSHIP, USUFRUCT AND PLEDGE OVER SHARES
The shares are indivisible. Co-owners of a single share shall designate a single person to exercise the shareholder rights and shall be jointly and severally liable to the Company for any obligations arising from their shareholder status. The usufruct and pledge over shares shall be governed by the provisions of the Law.
Article 9. MANAGEMENT OF THE COMPANY
The Company shall be governed by the Shareholders Meeting and by a Board of Directors.
Article 10. SHAREHOLDERS MEETING
The shareholders assembled as a Shareholders Meeting shall have supreme authority to decide on any matters of the Company within the authority of the Shareholders Meeting.
Article 11. ANNUAL AND SPECIAL SHAREHOLDERS MEETING
Shareholders Meetings may be annual or special and shall be called by the Directors or liquidators.
The Annual Shareholders Meeting, previously called, shall necessarily assemble within the first six months of each year to review the management of the company, approve, if fitting, the financial statements for the preceding year and resolve on the allocation of profit or loss of the year. Any other Shareholders Meeting shall be deemed a Special Shareholders Meeting.
Article 12. SHAREHOLDERS MEETING ATTENDANCE REPRESENTATION PROCEDURE
Shareholders Meetings shall be called through an announcement published in the Official Gazette of the Commercial Registry and in one of the newspapers most widely circulated in the province of the domicile, at least one month in advance of the date established for the meeting. The announcement shall state the companys name the date and time on which the Shareholders Meeting is to assemble at first and second call and the matters to be discussed and the position of the persons calling the meeting. Special Shareholders Meetings may be called by the Directors when they deem this necessary or advisable in the interest of the Company and they shall necessary call such meetings at the request of shareholders holding at least 5% of the capital stock, stating in the request the issues to be dealt with.
The Shareholders meeting shall be called within one month after it has been notarially requested to the Administrators to call it including in the agenda the requested issues.
Between the first and the second call there must be at least twenty four hours.
Notwithstanding the above, the Shareholders Meeting shall be deemed to have been called and to be validly assembled to discuss any matter whenever the entire capital is present and the shareholders unanimously accept that the meeting be held. The resolutions of the Shareholders Meeting must be adopted by the majority of votes. Except for such instances in which the law or this bylaws requires qualified majorities or which legally need to be adopted.
The Shareholders Meeting shall be validly assembled at first call where the shareholders present in person or by proxy hold at least 50% of the subscribed voting capital and, at second call, regardless of the capital present at the meeting.
To resolve on the issue of debentures, the increase or reduction of capital, the re-registration of the Company in another corporate form, the merger or spin off of the Company and, in general, any amendment to the Corporate Bylaws, imposing any limits to the preferred acquisition right, the move abroad of the domicile and the
assignment in whole of the assets and liabilities, it shall be necessary, at first call, for shareholders to be present in person or by proxy holding at least 75% of the subscribed voting capital and, at second call, the presence of 50% of such capital shall suffice. Resolutions shall always be adopted by a majority of the capital present or represented.
Directors shall attend Shareholders Meeting either in person or by proxy, unless they are reasonably unable to do so and this shall be recorded in the Minutes. Attendance by electronic means that guarantee the identification of the person in compliance with the legal requirements is envisaged. The Chairman may authorize the attendance of any Managers or Technical Personnel he deems appropriate from time to time, though the Shareholders Meeting may override such authorization. Any shareholder having the right to attend may be represented at the Shareholders Meeting by another person who need not be a shareholder, proxies to be conferred in writing and especially for each Shareholders Meeting.
Shareholders Meetings shall be held in the town or city where the company has its registered office at may be extended for one or more consecutive days at the request of the Directors or of one quarter of the capital present; they shall be presided over by the Chairman of the Board of Directors and, in his absence, by the shareholder elected by the shareholders present. The Chairman shall be assisted by the Secretary of the Board of Directors or by person designated by the shareholders present, as the case may be.
Article 13. THE BOARD OF DIRECTORS
The Board of Directors shall consist of no less than three and no more than nine members. Directors shall be elected by the Shareholders Meeting and need not be shareholders of the Company or be obliged to furnish security.
The appointed Directors shall hold office for five years and may be reelected any number of times. The Board of Directors shall elect from among its members the Chairman of the Board and may appoint one or more Deputy Chairmen and one or more Managing Directors. The Board of Directors may appoint one Secretary and one or more Deputy Secretaries who need not be shareholders or directors.
Should any vacancy arise in the Board of Directors, not being any alternates, the Board itself shall have authority to appoint a substitute who shall be a shareholder and shall hold office until the next Shareholders Meeting is held and ratifies his office or appoints another person to replace him.
Article 14. POWERS OF THE BOARD OF DIRECTORS
The Board of Directors shall have the fullest powers to represent the Company, with the sole limitation of the powers that are reserves solely to the Shareholders Meeting by the Law.
The Board of Directors shall particularly have the following powers:
1) To represent the Company before any body of the Public Authority, either central or local or semi-public, and before any Tribunals and Courts; and before any natural or legal persons, public or private, without any limitation or restriction.
2) To manage and administer the corporate affairs and interests of the Company in compliance with the Law, attending their management in an ongoing manner. For such purpose it may establish the rules of government and system of management and operation of the Company, organizing and regulating its services.
3) To appoint, post and remove any personnel of the Company, establishing their duties and remuneration.
4) To purchase or acquire in any manner and sell or dispose of in any manner any movable or real property and rights of the Company.
5) To take money on loan from any Banks or financial or credit Institutions offering financial security or otherwise, including security over real estate.
6) To lease movables or real estate of any kind without limitation as regards the term, prices or other conditions.
7) To open, maintain, operate and close, in the name of the Company, current, special, savings and other accounts, depositing amounts therein and drawing on such funds through checks, bills of exchange, promissory notes and other documents.
8) To draw, accept, secure, endorse, collect and submit for trading and discount bills of exchange, promissory notes and any other strict orders of payment and to protest them for lack of acceptance or payment.
9) To receive payments of amounts due or owned by the Company for any reason for any reason from any individual or legal person, including amounts receivable or deposits of the Public Treasury, Tax Offices or other state or semi-public bodies; to sign receipts and issue letters of payment for such amounts, render and demand the rendering of accounts, contesting or approving them; to create, cancel or withdraw deposits of any kind including with the Government Depository (Caja General de Depósitos) or its Branches.
10) To collect letters sent by ordinary or registered mail and shipments addressed to the Company, to open them and, in general, to open and sign any correspondence of the Company; to keep any books of the Company, in compliance with the Law, as may be necessary or advisable.
11) To request entries and registrations on the records and books of the Company; to pay taxes, submitting the tax returns demanded by the tax laws; to bring claims against the allocation and calculation of the taxable amounts should they be deemed inappropriate; to appeal any decisions of the authorities and civil servants of the State, Province and Municipal Authority, as may be deemed inappropriate; to file claims, serve notices and lodge appeals before the authorities, bodies and civil servants in question.
12) To make execute and sign any contracts and agreements relating to the purposes and objectives of the Company, freely agreeing any arrangement, commitment and obligation.
13) To represent the Company in any auctions or procedures for award, submitting bids and accepting the results thereof; to represent the Company and exercise all its rights without limitation in any suspension of payments, bankruptcy or similar proceeding.
14) To reach settlement in court or out of court relating to matters subject to court proceedings or otherwise, and to submit any dispute in which the Company may have an interest to the decision or arbitrators.
15) To confer and sign powers of attorney upon Lawyers and Court Solicitors to represent the Company before any Court of justice, as plaintiff, defendant or in any other capacity, conferring upon such attorneys in fact any powers deemed advisable without restriction.
16) To decide and resolve on the creation, cancellation or relocation of Branches of the Branch (sic.).
The above list is merely informative and implies no limitation, it to be understood that the Board of Directors shall have authority to exercise the fullest powers with the exception contemplated in the first paragraph of this Article.
Article 15. PROCEDURE OF THE BOARD
The Board of Directors shall be called by the Chairman or by the person acting as such, on his own initiative or at the request of at least two Directors. The Board shall be validly assembled where half plus one of its members are present, in person or by proxy, unless a higher quorum is required by law. Each Director may, through a letter or telegram addressed to the Chairman, appoint another Director to act as his proxy. Ballots held through the written procedure and without assembly shall be valid provided that none of the Directors has objected to such procedure.
Resolutions shall be adopted by an absolute majority of the Directors present, although the permanent delegation of any power to the Executive Committee or to the Managing Director or the appointment of the person to hold such offices shall require the vote in favor of two thirds of the members of the Board
The discussions and resolutions of the Board shall be recorded in a minutes book each set of minutes to be signed by the Chairman and by the Secretary.
Article 16. FINANCIAL YEAR ANNUAL FINANCIAL STATEMENTS
The financial year shall commence on the 1st of January and end on the 31st of December each calendar year and the directors shall prepare, with reference to the closing of each year at December 31 each year and within the following three months the appropriate balance sheet, income statement, notes to the financial statements,
management report and proposal for the allocation of profit or loss. The annual financial statements and the management report shall be reviewed by auditors, other than in the case of an abridged balance sheet. The annual financial statements shall be submitted to the Shareholders Meeting for approval.
Article 17. DISTRIBUTION OF RESULTS
The profits of each financial year established as provided for in the above Article shall be distributed as may be resolved by the Shareholders Meeting, in accordance with the approved balance sheet and in compliance with the Law and, after the provisions established by law or under the bylaws have been made and only provided that the net equity is not and will not become due to such distribution lower than the capital stock. In any event, an amount equal to 10% of the profit shall be allocated to the statutory reserve until such reserve reaches, at least, 20% of the capital stock.
Should there be losses from previous fiscal years that would make the figure of the Companys net assets lower than the share capital, the profits will be used to compensate such losses.
Article 18. DISSOLUTION AND LIQUIDATION OF THE COMPANY
The Company shall be dissolved by a resolution of the Shareholders Meeting adopted in compliance with the Law and in other events of dissolution established.
The Shareholders Meeting that resolves the dissolution shall appoint the liquidators, always in an odd number with the powers established by the Law or by the Shareholders Meeting.
Exhibit T3B.7
BY-LAW NO. 1
of
DYNATEC TECHNOLOGIES LTD.
(the Corporation)
1. INTERPRETATION
1.1 Expressions used in this By-law shall have the same meanings as corresponding expressions in the Business Corporations Act (Ontario) (the Act).
2. CORPORATE SEAL
2.1 Until changed by the directors, the corporate seal of the Corporation shall be in the form impressed in the margin hereof.
3. FINANCIAL YEAR
3.1 Until changed by the directors, the financial year of the Corporation shall end on the last day of December in each year.
4. DIRECTORS
4.1 Number. The number of directors shall be not fewer than the minimum and not more than the maximum provided in the articles. At each election of directors the number elected shall be such number as shall be determined from time to time by special resolution or, if the directors are empowered by special resolution to determine the number, by the directors.
4.2 Quorum. A quorum of directors shall be two-fifths of the number of directors or such greater number as the directors or shareholders may from time to time determine.
4.3 Calling of Meetings. Meetings of the directors shall be held at such time and place within or outside Ontario as the Chairman of the Board, the President or any two directors may determine. A majority of meetings of directors need not be held within Canada in any financial year.
4.4 Notice of Meetings. Notice of the time and place of each meeting of directors shall be given to each director by telephone not less than 48 hours before the time of the meeting
or by written notice not less than four days before the date of the meeting, provided that the first meeting immediately following a meeting of shareholders at which directors are elected may be held without notice if a quorum is present. Meetings may be held without notice if the directors waive or are deemed to waive notice.
4.5 Chairman. The Chairman of the Board, or in his absence the President if a director, or in his absence a director chosen by the directors at the meeting, shall be chairman of any meeting of directors.
4.6 Voting at Meetings. At meetings of directors each director shall have one vote and questions shall be decided by a majority of votes. In case of an equality of votes the Chairman of the meeting shall have a second or casting vote.
5. OFFICERS
5.1 General. The directors may from time to time appoint a Chairman of the Board, a President, one or more Vice-Presidents, a Secretary, a Treasurer and such other officers as the directors may determine.
5.2 Chairman of the Board. The Chairman of the Board, if any, shall be appointed from among the directors and when present shall be chairman of meetings of directors and shareholders and shall have such other powers and duties as the directors may determine.
5.3 President. Unless the directors otherwise determine the President shall be appointed from among the directors and shall be the chief executive officer of the Corporation and shall have general supervision of its business and affairs and in the absence of the Chairman of the Board shall be chairman of meetings of directors and shareholders when present.
5.4 Vice-President. A Vice-President shall have such powers and duties as the directors or the chief executive officer may determine.
5.5 Secretary. The Secretary shall give required notices to shareholders, directors, auditors and members of committees, act as secretary of meetings of directors and shareholders when present, keep and enter minutes of such meetings, maintain the corporate records of the
Corporation, have custody of the corporate seal and shall have such other powers and duties as the directors or the chief executive officer may determine.
5.6 Treasurer. The Treasurer shall keep proper accounting records in accordance with the Act, have supervision over the safekeeping of securities and the deposit and disbursement of funds of the Corporation, report as required on the financial position of the Corporation, and have such other powers and duties as the directors or the chief executive officer may determine.
5.7 Assistants. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant unless the directors or the chief executive officer otherwise direct.
5.8 Variation of Duties. The directors may, from time to time, vary, add to or limit the powers and duties of any officer.
5.9 Term of Office. Each officer shall hold office until his successor is elected or appointed, provided that the directors may at any time remove any officer from office but such removal shall not affect the rights of such officer under any contract of employment with the Corporation.
6. INDEMNIFICATION AND INSURANCE
6.1 Indemnification of Directors and Officers. The Corporation shall indemnify a director or officer, a former director or officer or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and the heirs and legal representative of such a person to the extent permitted by the Act.
6.2 Insurance. The Corporation may purchase and maintain insurance for the benefit of any person referred to in the preceding section to the extent permitted by the Act.
7. SHAREHOLDERS
7.1 Quorum. A quorum for the transaction of business at a meeting of shareholders shall be two persons present and each entitled to vote at the meeting.
7.2 Casting Vote. In case of an equality of votes at a meeting of shareholders the Chairman of the meeting shall have a second or casting vote.
7.3 Electronic Meetings. A meeting of shareholders may be held by telephonic or electronic means and a shareholder who, through those means, votes at a meeting or establishes a communications link to a meeting shall be deemed to be present at that meeting.
7.4 Scrutineers. The Chairman at any meeting of shareholders may appoint one or more persons (who need not be shareholders) to act as scrutineer or scrutineers at the meeting.
8. DIVIDENDS AND RIGHTS
8.1 Declaration of Dividends. Subject to the Act, the directors may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation.
8.2 Cheques. A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at the address of such holder in the Corporations securities register, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their address in the Corporations securities register. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.
8.3 Non-Receipt of Cheques. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the directors may from time to time prescribe, whether generally or in any particular case.
8.4 Unclaimed Dividends. Any dividend unclaimed after a period of six years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9. EXECUTION OF INSTRUMENTS
9.1 Deeds, transfers, assignments, agreements, proxies and other instruments may be signed on behalf of the Corporation by any two directors or by a director and an officer or by one of the Chairman of the Board, the President and a Vice-President together with one of the Secretary and the Treasurer or in such other manner as the directors may determine; except that insider trading reports may be signed on behalf of the Corporation by any one director or officer of the Corporation.
10. NOTICE
10.1 A notice mailed to a shareholder, director, auditor or member of a committee shall be deemed to have been received on the fifth day after mailing.
10.2 Accidental omission to give any notice to any shareholder, director, auditor or member of a committee or non-receipt of any notice or any error in a notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice.
RESOLVED THAT the foregoing by-law is made a by-law of the Corporation by the signatures hereto of all the directors of the Corporation pursuant to the Business Corporations Act (Ontario), this 14th day of September, 2007.
/s/ Jowdat Waheed |
Jowdat Waheed |
/s/ Guy I. Bentinck |
Guy I. Bentinck |
/s/ Julie Lee Harrs |
Julie Lee Harrs |
RESOLVED THAT the foregoing by-law is confirmed as a by-law of the Corporation by the signature hereto of the sole shareholder of the Corporation pursuant to the Business Corporations Act (Ontario), this 14th day of September, 2007.
SHERRITT INTERNATIONAL CORPORATION | ||
By: | /s/ Julie A. Lee Harrs | |
Name: Julie A. Lee Harrs | ||
Title: Senior Vice President, General Counsel and Corporate Secretary |
Exhibit T3B.8
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
OG FINANCE INC.
FRASER MILNER CASGRAIN LLP
2900-10180 101 ST
EDMONTON AB T5J 3V5
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
OG FINANCE INC.
ARTICLE 1. INTERPRETATION
1.1 | Definitions |
In the By-laws, unless the context requires a different meaning:
(a) | Act shall mean the Business Corporations Act, RSA 2000, c. B-9, as amended, and any statute that may be substituted therefor; |
(b) | appoint shall include elect and vice versa; |
(c) | Board shall mean the board of directors or sole director of the Corporation; |
(d) | By-laws shall mean all by-laws of the Corporation which are in force; |
(e) | Corporation shall mean OG FINANCE INC., a body corporate incorporated under the Act; |
(f) | President shall mean the person appointed as president of the Corporation; and |
(g) | Secretary shall mean the person or persons appointed as secretary or assistant secretary of the Corporation, from time to time. |
1.2 Unless defined in section 1.1, words and phrases in the By-laws shall have the meaning set forth in the Act. Words importing the singular shall include the plural, and the converse shall also apply. Words importing gender shall include the masculine, feminine and neuter. Words importing persons shall include individuals, partnerships, associations, bodies corporate, trustees, executors, administrators, associations and legal representatives.
ARTICLE 2. LIEN ON SHARES
2.1 A lien on shares (the Subject Shares) registered in the name of a shareholder (the Subject Shareholder) for a debt of the Subject Shareholder to the Corporation (including an amount unpaid in respect of a share already issued by the Corporation on the date it was continued under the Act), together with interest accrued thereon and any expenses incurred by the Corporation in respect of such debt (the sum of all three amounts shall herein be called the Debt), may be enforced by the Corporation by the sale of the Subject Shares, or by the sale of such of the Subject Shares as are required to satisfy the Debt, or by any other action, suit, remedy or proceeding authorized or permitted at law or in equity, provided that prior to selling the Subject Shares the Corporation shall give the Subject Shareholder 7 days written notice (the Notice) as follows:
(a) | stating the amount of the Debt; |
(b) | demanding immediate payment of the Debt; |
(c) | setting forth the matters contained in section 2.2; and |
(d) | setting forth the Corporations intention to sell the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, if the Debt remains in default for 7 days after receipt of the Notice by the Subject Shareholder. |
2.2 Immediately upon receipt of the Notice by the Subject Shareholder,
(a) | the Subject Shareholder shall deliver the security certificate representing the Subject Shares to the Corporation; |
(b) | until the Debt is satisfied in full, the president shall be constituted |
(i) | as the Subject Shareholders proxy to vote for and on his behalf in respect of the Subject Shares and as the Subject Shareholders attorney with full power and authority to assent to and adopt in writing any resolutions of the shareholders, |
(ii) | as the Subject Shareholders attorney with full power and authority to transfer the Subject Shares, and |
(iii) | as the Subject Shareholders agent with authority to receive and apply any dividends paid on the Subject Shares against the Debt. |
2.3 If the Corporation sells the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, the proceeds shall be applied in the following order:
(a) | in payment of any expenses incurred by reason of the Subject Shareholders default, including the cost of selling the Subject Shares; |
(b) | in satisfaction of the remainder of the Debt; and |
(c) | the residue, if any, shall be paid to the Subject Shareholder. |
2.4 If all of the Subject Shares are not sold to satisfy the Debt, the Corporation shall issue a security certificate to the Subject Shareholder in respect of the Subject Shares which are not sold.
ARTICLE 3. DIRECTORS
3.1 | Calling Meetings |
Upon the written request of a director, the Secretary, or any one of them, shall call a meeting of the Board. If the Secretary (or in the case of more than one, each of them) is unavailable or fails to call a meeting within 24 hours of receipt of such request, any director may call a meeting of the Board in accordance with the provisions of section 3.2.
A meeting of the Board shall be called on 72 hours notice to each director, verbally or in writing, by means of any communication facilities available.
3.2 | Place of Meetings |
Meetings of the Board shall be held at the place described in the Notice of Meeting.
3.3 | Chairman |
The President shall act as chairman of a meeting of the Board, or if he is not present within fifteen minutes of the time fixed for holding the meeting, the directors present shall choose one of their number to act as chairman.
3.4 | Secretary |
If the Secretary (or in the case of more than one, each of them) is absent from a meeting of the Board, the chairman of the meeting shall appoint some person, who need not be a director, to act as secretary of the meeting.
3.5 | Voting |
Questions arising at a meeting of the Board shall be decided by a majority of the votes cast, excluding abstentions; and in the case of an equality of votes, the chairman of the meeting shall not be entitled to a second or casting vote.
3.6 | Telecommunication Meetings |
A director may participate in a meeting of the Board, or of a committee of the Board, by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
ARTICLE 4. OFFICERS
4.1 | Appointment |
The Board may appoint
(a) | a chairman of the Board; |
(b) | a president; |
(c) | a chief financial officer; |
(d) | one or more vice-presidents (to whose title may be added words indicating seniority or function); |
(e) | one or more secretaries; |
(f) | one or more assistant secretaries; and |
(g) | such other officers as the Board may determine, including one or more assistants to any of the officers appointed. |
4.2 | Chairman of the Board |
The chairman of the Board shall be a director and shall have such powers and duties as are called for by the terms of his engagement or as the Board may specify.
4.3 | President |
The President shall:
(a) | be the chief executive officer of the Corporation; |
(b) | have general supervision of the officers and the business of the Corporation; and |
(c) | have such other powers and duties as are called for by the terms of his engagement or as the Board may specify. |
4.4 | Secretary |
The Secretary, or any one of them, shall:
(a) | record the proceedings at all meetings of the Board and shareholders; |
(b) | prepare and keep minutes of all such meetings in a book kept for that purpose; |
(c) | give, or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the Board; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.5 | Chief Financial Officer |
The chief financial officer shall:
(a) | keep, or cause to be kept, proper accounting records in compliance with the Act; |
(b) | be responsible for the deposit of money, the safekeeping of securities and the disbursement of the Corporations funds; |
(c) | whenever required, render to the Board an account of all transactions and of the financial position of the Corporation; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.6 | Powers and Duties |
The powers and duties of all the officers of the Corporation shall be such as the terms of their engagement call for or as the Board of Directors may determine. The powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the Board directs otherwise.
ARTICLE 5. INDEMNITY TO DIRECTORS, OFFICERS AND OTHERS
5.1 In all circumstances and to the fullest extent permitted by the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
ARTICLE 6. SHAREHOLDERS
6.1 | Chairman |
The President shall act as chairman of a meeting of shareholders or if the President is not present within fifteen (15) minutes of the time fixed for holding the meeting, the shareholders present and entitled to vote shall choose one of their number to act as chairman.
6.2 | Secretary |
The Secretary, or any one of them, shall act as secretary of a meeting of shareholders as determined by the President or if the Secretary (or in the case of more than one, each of them) is absent from a shareholders meeting, the chairman of the meeting shall appoint some person, who need not be a shareholder, to act as secretary of the meeting.
6.3 | Telecommunication Meetings |
A shareholder or any other person entitled to attend a meeting of shareholders may participate in a meeting of shareholders by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
Enacted by the Board on October 18, 2012
Confirmed by the sole Shareholder on October 18, 2012.
BY-LAW NO. 2
A BY-LAW AUTHORIZING THE DIRECTORS TO BORROW AND GIVE
SECURITY ON BEHALF OF POWER FINANCE INC.
The directors of the corporation may
(a) | borrow money on the credit of the corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the corporation; |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
Enacted by the Board on October 18, 2012.
Confirmed by the sole Shareholder on October 18, 2012.
Exhibit T3B.9
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
POWER FINANCE INC.
FRASER MILNER CASGRAIN LLP
2900-10180 101 ST
EDMONTON AB T5J 3V5
BY-LAW NO. 1
A by-law relating generally to
the transaction of the business
and affairs of
POWER FINANCE INC.
ARTICLE 1. INTERPRETATION
1.1 | Definitions |
In the By-laws, unless the context requires a different meaning:
(a) | Act shall mean the Business Corporations Act, RSA 2000, c. B-9, as amended, and any statute that may be substituted therefor; |
(b) | appoint shall include elect and vice versa; |
(c) | Board shall mean the board of directors or sole director of the Corporation; |
(d) | By-laws shall mean all by-laws of the Corporation which are in force; |
(e) | Corporation shall mean POWER FINANCE INC., a body corporate incorporated under the Act; |
(f) | President shall mean the person appointed as president of the Corporation; and |
(g) | Secretary shall mean the person or persons appointed as secretary or assistant secretary of the Corporation, from time to time. |
1.2 Unless defined in section 1.1, words and phrases in the By-laws shall have the meaning set forth in the Act. Words importing the singular shall include the plural, and the converse shall also apply. Words importing gender shall include the masculine, feminine and neuter. Words importing persons shall include individuals, partnerships, associations, bodies corporate, trustees, executors, administrators, associations and legal representatives.
ARTICLE 2. LIEN ON SHARES
2.1 A lien on shares (the Subject Shares) registered in the name of a shareholder (the Subject Shareholder) for a debt of the Subject Shareholder to the Corporation (including an amount unpaid in respect of a share already issued by the Corporation on the date it was continued under the Act), together with interest accrued thereon and any expenses incurred by the Corporation in respect of such debt (the sum of all three amounts shall herein be called the Debt), may be enforced by the Corporation by the sale of the Subject Shares, or by the sale of such of the Subject Shares as are required to satisfy the Debt, or by any other action, suit, remedy or proceeding authorized or permitted at law or in equity, provided that prior to selling the Subject Shares the Corporation shall give the Subject Shareholder 7 days written notice (the Notice) as follows:
(a) | stating the amount of the Debt; |
(b) | demanding immediate payment of the Debt; |
(c) | setting forth the matters contained in section 2.2; and |
(d) | setting forth the Corporations intention to sell the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, if the Debt remains in default for 7 days after receipt of the Notice by the Subject Shareholder. |
2.2 Immediately upon receipt of the Notice by the Subject Shareholder,
(a) | the Subject Shareholder shall deliver the security certificate representing the Subject Shares to the Corporation; |
(b) | until the Debt is satisfied in full, the president shall be constituted |
(i) | as the Subject Shareholders proxy to vote for and on his behalf in respect of the Subject Shares and as the Subject Shareholders attorney with full power and authority to assent to and adopt in writing any resolutions of the shareholders, |
(ii) | as the Subject Shareholders attorney with full power and authority to transfer the Subject Shares, and |
(iii) | as the Subject Shareholders agent with authority to receive and apply any dividends paid on the Subject Shares against the Debt. |
2.3 If the Corporation sells the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, the proceeds shall be applied in the following order:
(a) | in payment of any expenses incurred by reason of the Subject Shareholders default, including the cost of selling the Subject Shares; |
(b) | in satisfaction of the remainder of the Debt; and |
(c) | the residue, if any, shall be paid to the Subject Shareholder. |
2.4 If all of the Subject Shares are not sold to satisfy the Debt, the Corporation shall issue a security certificate to the Subject Shareholder in respect of the Subject Shares which are not sold.
ARTICLE 3. DIRECTORS
3.1 | Calling Meetings |
Upon the written request of a director, the Secretary, or any one of them, shall call a meeting of the Board. If the Secretary (or in the case of more than one, each of them) is unavailable or fails to call a meeting within 24 hours of receipt of such request, any director may call a meeting of the Board in accordance with the provisions of section 3.2.
A meeting of the Board shall be called on 72 hours notice to each director, verbally or in writing, by means of any communication facilities available.
3.2 | Place of Meetings |
Meetings of the Board shall be held at the place described in the Notice of Meeting.
3.3 | Chairman |
The President shall act as chairman of a meeting of the Board, or if he is not present within fifteen minutes of the time fixed for holding the meeting, the directors present shall choose one of their number to act as chairman.
3.4 | Secretary |
If the Secretary (or in the case of more than one, each of them) is absent from a meeting of the Board, the chairman of the meeting shall appoint some person, who need not be a director, to act as secretary of the meeting.
3.5 | Voting |
Questions arising at a meeting of the Board shall be decided by a majority of the votes cast, excluding abstentions; and in the case of an equality of votes, the chairman of the meeting shall not be entitled to a second or casting vote.
3.6 | Telecommunication Meetings |
A director may participate in a meeting of the Board, or of a committee of the Board, by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
ARTICLE 4. OFFICERS
4.1 | Appointment |
The Board may appoint
(a) | a chairman of the Board; |
(b) | a president; |
(c) | a chief financial officer; |
(d) | one or more vice-presidents (to whose title may be added words indicating seniority or function); |
(e) | one or more secretaries; |
(f) | one or more assistant secretaries; and |
(g) | such other officers as the Board may determine, including one or more assistants to any of the officers appointed. |
4.2 | Chairman of the Board |
The chairman of the Board shall be a director and shall have such powers and duties as are called for by the terms of his engagement or as the Board may specify.
4.3 | President |
The President shall:
(a) | be the chief executive officer of the Corporation; |
(b) | have general supervision of the officers and the business of the Corporation; and |
(c) | have such other powers and duties as are called for by the terms of his engagement or as the Board may specify. |
4.4 | Secretary |
The Secretary, or any one of them, shall:
(a) | record the proceedings at all meetings of the Board and shareholders; |
(b) | prepare and keep minutes of all such meetings in a book kept for that purpose; |
(c) | give, or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the Board; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.5 | Chief Financial Officer |
The chief financial officer shall:
(a) | keep, or cause to be kept, proper accounting records in compliance with the Act; |
(b) | be responsible for the deposit of money, the safekeeping of securities and the disbursement of the Corporations funds; |
(c) | whenever required, render to the Board an account of all transactions and of the financial position of the Corporation; and |
(d) | have such other powers and duties as are called for by the terms of his engagement or as the Board or the president may specify. |
4.6 | Powers and Duties |
The powers and duties of all the officers of the Corporation shall be such as the terms of their engagement call for or as the Board of Directors may determine. The powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the Board directs otherwise.
ARTICLE 5. INDEMNITY TO DIRECTORS, OFFICERS AND OTHERS
5.1 In all circumstances and to the fullest extent permitted by the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
ARTICLE 6. SHAREHOLDERS
6.1 | Chairman |
The President shall act as chairman of a meeting of shareholders or if the President is not present within fifteen (15) minutes of the time fixed for holding the meeting, the shareholders present and entitled to vote shall choose one of their number to act as chairman.
6.2 | Secretary |
The Secretary, or any one of them, shall act as secretary of a meeting of shareholders as determined by the President or if the Secretary (or in the case of more than one, each of them) is absent from a shareholders meeting, the chairman of the meeting shall appoint some person, who need not be a shareholder, to act as secretary of the meeting.
6.3 | Telecommunication Meetings |
A shareholder or any other person entitled to attend a meeting of shareholders may participate in a meeting of shareholders by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
Enacted by the Board on October 18, 2012
Confirmed by the sole Shareholder on October 18, 2012.
BY-LAW NO. 2
A BY-LAW AUTHORIZING THE DIRECTORS TO BORROW AND GIVE
SECURITY ON BEHALF OF POWER FINANCE INC.
The directors of the corporation may
(a) | borrow money on the credit of the corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the corporation; |
(c) | give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
Enacted by the Board on October 18, 2012.
Confirmed by the sole Shareholder on October 18, 2012.
Exhibit T3B.10
BYLAW NO. 1
A bylaw relating generally to
the transaction of the business
and affairs of
SHERRITT BULK COMMODITIES AND TRANSPORTATION LTD.
ARTICLE 1 INTERPRETATION
1.1 | Definitions |
Bylaws, unless the context requires a different meaning:
(a) | Act means the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, and any statute that may be substituted therefor; |
(b) | appoint includes elect and vice versa; |
(c) | Board means the board of directors or sole director of the Corporation; |
(d) | Bylaws means all bylaws of the Corporation which are in force; |
(e) | Corporation means Sherritt Bulk Commodities and Transportation Ltd., a body corporate incorporated under the Act; |
(f) | President means the person appointed as president of the Corporation; and |
(g) | Secretary means the person appointed as secretary of the Corporation. |
1.2 | Additional Rules |
Unless defined in section 1.1, words and phrases in the Bylaws have the respective meanings set forth in the Act. Words importing the singular shall include the plural, and the converse also applies. Words importing gender include the masculine, feminine and neuter. Words importing persons include individuals, partnerships, associations, bodies corporate, trustees, executors, administrators and legal representatives.
ARTICLE 2 LIEN ON SHARES
2.1 | Enforcement of Lien |
A lien on shares (the Subject Shares) registered in the name of a shareholder (the Subject Shareholder) for a debt of the Subject Shareholder to the Corporation (including an amount unpaid in respect of a share already issued by the Corporation on the date it was continued under the Act), together with interest accrued thereon and any expenses incurred by the Corporation in respect of such debt (the sum of all three amounts is herein called the Debt), may be enforced by the Corporation by the sale of the Subject Shares, or by the sale of such of the Subject Shares as are required to satisfy the Debt, or by any other action, suit, remedy or proceeding authorized or permitted at law or in equity, provided that prior to selling the Subject Shares the Corporation shall give the Subject Shareholder seven days written notice (the Notice) as follows:
(a) | stating the amount of the Debt; |
41108410_1|NATDOCS
- 2 -
(b) | demanding immediate payment of the Debt; |
(c) | setting forth the matters contained in section 2.2; and |
(d) | setting forth the Corporations intention to sell the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, if the Debt remains in default for seven days after receipt of the Notice by the Subject Shareholder. |
2.2 | Proxy, Attorney and Agent |
Immediately upon receipt of the Notice by the Subject Shareholder,
(a) | the Subject Shareholder shall deliver the share certificate representing the Subject Shares to the Corporation; |
(b) | until the Debt is satisfied in full, the president shall be constituted |
(i) | as the Subject Shareholders proxy to vote for and on his or her behalf in respect of the Subject Shares and as the Subject Shareholders attorney with full power and authority to assent to and adopt in writing any resolutions of the shareholders, |
(ii) | as the Subject Shareholders attorney with full power and authority to transfer the Subject Shares, and |
(iii) | as the Subject Shareholders agent with authority to receive and apply any dividends paid on the Subject Shares against the Debt. |
2.3 | Proceeds of Sale |
If the Corporation sells the Subject Shares, or such of the Subject Shares as are required to satisfy the Debt, the proceeds shall be applied in the following order:
(a) | in payment of any expenses incurred by reason of the Subject Shareholders default, including the cost of selling the Subject Shares; |
(b) | in satisfaction of the remainder of the Debt; and |
(c) | the residue, if any, shall be paid to the Subject Shareholder. |
2.4 | Certificate for Unsold Shares |
If all of the Subject Shares are not sold to satisfy the Debt, the Corporation shall issue a share certificate to the Subject Shareholder in respect of the Subject Shares which are not sold.
ARTICLE 3 DIRECTORS
3.1 | Calling Meetings |
Upon the written request of a director, the Secretary shall call a meeting of the Board. If the Secretary is unavailable or fails to call a meeting within twenty-four hours of receipt of such request, any director may call a meeting of the Board in accordance with the provisions of section 3.2.
41108410_1|NATDOCS
- 3 -
A meeting of the Board shall be called on seventy-two hours notice to each director, verbally or in writing, by means of any communication facilities available.
3.2 | Place of Meetings |
Meetings of the Board shall be held at the place described in the Notice of Meeting.
3.3 | Chairman |
The President shall act as chairman of a meeting of the Board, or if he or she is not present within fifteen minutes of the time fixed for holding the meeting, the directors present shall choose one of their number to act as chairman.
3.4 | Secretary |
If the Secretary is absent from a meeting of the Board, the chairman of the meeting shall appoint some person, who need not be a director, to act as secretary of the meeting.
3.5 | Voting |
Questions arising at a meeting of the Board shall be decided by a majority of the votes cast, excluding abstentions; and in the case of an equality of votes, the chairman of the meeting shall not be entitled to a second or casting vote.
3.6 | Telecommunication Meetings |
A director may participate in a meeting of the Board, or of a committee of the Board, by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
ARTICLE 4 OFFICERS
4.1 | Appointment |
The Board may appoint
(a) | a chairman of the Board; |
(b) | a president; |
(c) | one or more vice-presidents (to whose title may be added words indicating seniority or function); |
(d) | a secretary; |
(e) | a treasurer; and |
(f) | such other officers as the Board may determine, including one or more assistants to any of the officers appointed. |
4.2 | Chairman of the Board |
The chairman of the Board shall be a director and shall have such powers and duties as are called for by the terms of his or her engagement or as the Board may specify.
41108410_1|NATDOCS
- 4 -
4.3 | President |
The president shall:
(a) | be the chief executive officer of the Corporation; |
(b) | have general supervision of the officers and the business of the Corporation; and |
(c) | have such other powers and duties as are called for by the terms of his or her engagement or as the Board may specify. |
4.4 | Secretary |
The secretary shall:
(a) | record the proceedings at all meetings of the Board and shareholders; |
(b) | prepare and keep minutes of all such meetings in a book kept for that purpose; |
(c) | give, or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the Board; and |
(d) | have such other powers and duties as are called for by the terms of his or her engagement or as the Board or the president may specify. |
4.5 | Treasurer |
The treasurer shall:
(a) | keep, or cause to be kept, proper accounting records in compliance with the Act; |
(b) | be responsible for the deposit of money, the safekeeping of securities and the disbursement of the Corporations funds; |
(c) | whenever required, render to the Board an account of all transactions and of the financial position of the Corporation; and |
(d) | have such other powers and duties as are called for by the terms of his or her engagement or as the Board or the president may specify. |
4.6 | Powers and Duties |
The powers and duties of all the officers of the Corporation shall be such as the terms of their engagement call for or as the Board of Directors may determine. The powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the Board directs otherwise.
ARTICLE 5 INDEMNITY TO DIRECTORS AND OFFICERS
5.1 | Indemnity |
In all circumstances and to the fullest extent permitted by the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his or her heirs and legal
41108410_1|NATDOCS
- 5 -
representatives. Nothing in this bylaw shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this bylaw.
ARTICLE 6 SHAREHOLDERS
6.1 | Chairman |
The President shall act as the chairman of any meeting of shareholders or if the President is not present within fifteen minutes of the time fixed for holding the meeting, the shareholders present and entitled to vote shall choose one of their number to act as chairman.
6.2 | Secretary |
The Secretary shall act as the secretary of any meeting of shareholders or if the Secretary is absent from the meeting, the chairman of the meeting shall appoint another individual, who need not be a shareholder, to act as the secretary of the meeting.
6.3 | Telecommunication Meetings |
A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other.
Enacted by the Board as of August 23, 2019.
Confirmed by the Shareholder as of August 23, 2019.
41108410_1|NATDOCS
BYLAW NO. 2
A bylaw authorizing the directors
to borrow and give security on behalf of
SHERRITT BULK COMMODITIES AND TRANSPORTATION LTD.
The directors of the Corporation may:
(a) | borrow money on the credit of the Corporation; |
(b) | issue, reissue, sell or pledge debt obligations of the Corporation; |
(c) | give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation. |
Enacted by the Board as of August 23, 2019.
Confirmed by the Shareholder as of August 23, 2019.
41108410_1|NATDOCS
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Exhibit T3B.11
General By-Law No. 1
of
Sherritt International (Cuba)
Oil and Gas Limited
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P. 08 |
Contents
1 | INTERPRETATION | 1 | ||||
2 | REGISTERED OFFICE | 1 | ||||
3 | SEAL | 1 | ||||
4 | DIRECTORS | 2 | ||||
5 | BORROWING POWERS OF DIRECTORS | 3 | ||||
6 | MEETINGS OF DIRECTORS | 3 | ||||
7 | REMUNERATION OF DIRECTORS | 4 | ||||
8 | SUBMISSION OF CONTRACTS OR TRANSACTIONS TO SHAREHOLDERS FOR APPROVAL | 4 | ||||
9 | FOR THE PROTECTION OF DIRECTORS AND OFFICERS | 4 | ||||
10 | INDEMNITIES TO DIRECTORS AND OFFICERS | 5 | ||||
11 | OFFICERS | 6 | ||||
12 | SHAREHOLDERS MEETINGS | 8 | ||||
13 | SHARES | 11 | ||||
14 | TRANSFER OF SHARES AND DEBENTURES | 11 | ||||
15 | DIVIDENDS | 11 | ||||
16 | VOTING IN OTHER COMPANIES | 12 | ||||
17 | INFORMATION AVAILABLE TO SHAREHOLDERS | 12 | ||||
18 | NOTICES | 12 | ||||
19 | CHEQUES, DRAFTS AND NOTES | 13 | ||||
20 | EXECUTION OF INSTRUMENTS | 14 | ||||
21 | SIGNATURES | 14 | ||||
22 | FINANCIAL YEAR | 14 | ||||
INDEX | 15 |
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BARBADOS
THE COMPANIES ACT CAP. 308
BY-LAW NO. 1
A by-law relating generally to the
conduct of the affairs of:
SHERRITT INTERNATIONAL(CUBA) OIL AND GAS LIMITED
BE IT ENACTED as the general by-law of SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED (hereinafter called the Company) as follows:
1 | INTERPRETATION |
1.1 In this by-law and all other by-laws of the Company, unless the context otherwise requires:
(a) Act means the Companies Act Cap. 308 as from time to time amended and every statute substituted therefor and, in the case of such substitution, any references in the by-laws of the Company to provisions of the Act shall be read as references to the substituted provisions therefor in the new statute or statutes;
(b) Regulations means any Regulations made under the Act, and every regulation substituted therefor and, in the case of such substitution, any references in the by-laws of the Company to provisions of the Regulations shall be read as references to the substituted provisions therefor in the new regulations;
(c) by-laws means any by-law of the Company from time to time in force;
(d) all terms contained in the by-laws and defined in the Act or the Regulations shall have the meanings given to such terms in the Act or the Regulations; and
(e) the singular includes the plural and the plural includes the singular; the masculine gender includes the feminine and neuter genders; the word person includes bodies corporate, companies, partnerships, syndicates, trusts and any association of persons; and the word individual means a natural person.
2 | REGISTERED OFFICE |
2.1 The registered office of the Company shall be in Barbados at such address as the directors may fix from time to time by resolution.
3 SEAL | |
3.1 The common seal of the Company shall be such as the directors may by resolution from time to time adopt.
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4 | DIRECTORS |
4.1 Powers: Subject to any unanimous shareholder agreement, the business and affairs of the Company shall be managed by the directors.
4.2 Number: There shall be a minimum of 2 directors and a maximum of 10 directors
4.3 Election: Directors shall be elected by the shareholders on a show of hands unless a ballot is demanded in which case such election shall be by ballot.
4.4 Tenure: Unless his tenure is sooner determined, a director shall hold office from the date on which he is elected or appointed until the close of the annual meeting of the shareholders next following or until his successors are elected or appointed, which ever shall first occur, but he shall be eligible for re-election if qualified.
4.4.1 A director shall cease to be a director.
(a) if he becomes bankrupt or compounds with his creditors or is declared insolvent;
(b) if he is found to be of unsound mind; or
(c) if by notice in writing to the Company he resigns his office and any such resignation shall be effective at the time it is sent to the Company or at the time specified in the notice, whichever is later.
4.4.2 The shareholders of the Company may, by ordinary resolution passed at a special meeting of the shareholders, remove any director from office and a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed.
4.5 Casual vacancy among the Directors: Where there is any vacancy or vacancies among the directors, the directors then in office may exercise all of the powers of the directors so long as a quorum of the directors remain in office. Any vacancy occurring among the directors may be filled, for the remainder of the term, by such directors.
4.6 Committee of Directors: The directors may appoint from among their number a committee of directors and subject to section 80 (2) of the Act may delegate to such committee any of the powers of the directors.
4.7 Alternate Directors: The directors may appoint any person, who is nominated by a director, to be the alternate of that director to act in his place at any meeting of the directors at which he is unable to be present. Every such alternate shall be entitled to notice of meetings of the directors and to attend and vote thereat as a director when the person nominating him is not personally present, and where he is a director to have a separate vote on behalf of the director he is representing in addition to his own vote. A director may at any time in writing request the revocation by the directors of the appointment of an alternate nominated by him. Every such alternate shall be an agent of the Company and shall not be deemed to be the agent of the director nominating him. The remuneration (if any) of such an alternate shall be payable out of the remuneration (if any) payable to the director nominating him, and the proportion thereof shall
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be agreed between them. An alternate need not hold any share qualification.
4.8 Validity of acts: An act by a director or officer is valid notwithstanding an irregularity in his election or appointment or a defect in his qualifications.
5 | BORROWING POWERS OF DIRECTORS |
5.1 The directors may from time to time
(a) borrow money upon the credit of the Company;
(b) issue, reissue, sell or pledge debentures of the Company;
(c) subject to section 53 of the Act, give a guarantee on behalf of the Company to secure performance of an obligation of any person; and
(d) mortgage, charge, pledge or otherwise create a security interest in all or any property of the Company, owned or subsequently acquired, to secure any obligation of the Company.
5.2 The directors may from time to time by resolution delegate to any officer of the Company all or any of the powers conferred on the directors by paragraph 5.1 hereof to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
5.3 The powers conferred by paragraph 5.1 hereof shall be in supplement of and not in substitution for any powers to borrow money for the purposes of the Company possessed by its directors or officers independently of a borrowing by-law.
6 | MEETINGS OF DIRECTORS |
6.1 Place of Meeting: Meetings of the directors and of any committee of the directors may be held within or outside Barbados.
6.2 Notice: A meeting of the directors may be convened at any time by any director or the Secretary, when directed or authorised by any director. Subject to subsection 76 (1) of the Act the notice of any such meeting need not specify the purpose of or the business to be transacted at the meeting. Notice of any such meeting shall be served in the manner specified in paragraph 18.1 hereof not less than two days (exclusive of the day on which the notice is delivered or sent but inclusive of the day for which notice is given) before the meeting is to take place. A director may in any manner waive notice of a meeting of the directors and attendance of a director at a meeting of the directors shall constitute a waiver of notice of the meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
6.2.1 It shall not be necessary to give notice of a meeting of the directors to a newly elected or appointed director for a meeting held immediately following the election of directors by the shareholders or the appointment to fill a vacancy among the directors.
6.3 Quorum: Two directors shall form a quorum for the transaction of business and, notwithstanding any vacancy among the directors, a quorum may exercise all the powers of the
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directors. No business shall be transacted at a meeting of directors unless a quorum is present.
6.3.1 A director may, if all the directors consent, participate in a meeting of directors or of any committee of the directors by means of such telephone or other communications facilities as permit all persons participating in the meeting to hear each other and a director participating in such a meeting by such means is deemed to be present at that meeting and such meeting shall be deemed to be held in Barbados.
6.4 Voting: Questions arising at any meeting of the directors shall be decided by a majority of votes. In case of an equality of votes the chairman of the meeting in addition to his original vote shall have a second or casting vote.
6.5 Resolution in lieu of meeting: Notwithstanding any of the foregoing provisions of this by-law a resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the directors or any committee of the directors is as valid as if it had been passed at a meeting of the directors or any committee of the directors.
7 | REMUNERATION OF DIRECTORS |
7.1 The remuneration to be paid to the directors shall be such as the shareholders may from time to time determine and such remuneration may be in addition to the salary paid to any officer or employee of the Company who is also a director. The directors may award special remuneration to any director undertaking any special services on the Companys behalf other than the routine work ordinarily required of a director and the confirmation of any such resolution or resolutions by the shareholders shall not be required. The directors shall also be entitled to be paid their travelling and other expenses properly incurred by them in connection with the affairs of the Company.
8 | SUBMISSION OF CONTRACTS OR TRANSACTIONS TO SHAREHOLDERS FOR APPROVAL |
8.1 The directors in their discretion may submit any contract, act or transaction for approval or ratification at any annual meeting of the shareholders or at any special meeting of the shareholders called for the purpose of considering the same and, subject to the provisions of section 89 of the Act, any such contract, act or transaction that is approved or ratified or confirmed by a resolution passed by a majority of the votes cast at any such meeting (unless any different or additional requirement is imposed by the Act or by the Companys Articles or any other by-law) shall be as valid and as binding upon the Company and upon all the shareholders as though it had been approved, ratified or confirmed by every shareholder of the Company.
9 | FOR THE PROTECTION OF DIRECTORS AND OFFICERS |
9.1 No director or officer of the Company shall be liable to the Company for:-
(a) the acts, receipts, neglects or defaults of any other director or officer or employee or for joining in any receipt or act for conformity;
(b) any loss, damage or expense incurred by the Company through the insufficiency or deficiency of title to any property acquired by the Company or for or on behalf of the Company;
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(c) the insufficiency or deficiency of any security in or upon which any of the moneys of or belonging to the Company shall be placed out or invested;
(d) any loss or damage arising from the bankruptcy, insolvency or tortious act of any person, including any person with whom any moneys, securities or effects shall be ledged or deposited;
(e) any loss, conversion, misapplication or misappropriation of or any damage resulting from any dealings with any moneys, securities or other assets belonging to the Company;
(f) any other loss, damage or misfortune whatever which may happen in the execution of the duties of his respective office or trust or in relation thereto;
unless the same happens by or through his failure to exercise the powers and to discharge the duties of his office honestly and in good faith with a view to the best interests of the Company and in connection therewith to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
9.2 Nothing herein contained shall relieve a director or officer from the duty to act in accordance with the Act or regulations made thereunder or relieve him from liability for a breach thereof.
9.2.1 The directors for the time being of the Company shall not be under any duty or responsibility in respect of any contract, act or transaction whether or not made, done or entered into in the name or on behalf of the Company, except such as are submitted to and authorised or approved by the directors.
9.2.2 If any director or officer of the Company is employed by or performs services for the Company otherwise than as a director or officer or is a member of a firm or a shareholder, director or officer of a body corporate which is employed by or performs services for the Company, the fact of his being a shareholder, director or officer of the Company shall not disentitle such director or officer or such firm or body corporate, as the case may be, from receiving proper remuneration for such services.
10 | INDEMNITIES TO DIRECTORS AND OFFICERS |
10.1 Subject to section 97 of the Act, except in respect of an action by or on behalf of the Company to obtain a judgment in its favour, the Company shall indemnify a director or officer of the Company, a former director or officer of the Company or a person who acts or acted at the Companys request as a director or officer of a body corporate of which the Company is or was a shareholder or creditor, and his personal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of such company, if:
(a) he acted honestly and in good faith with a view to the best interests of the Company; and
(b) in the case of a criminal or administrative action or proceeding that is enforced
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by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful.
11 | OFFICERS |
11.1 Appointment: The directors shall as often as may be required appoint a Secretary and, if deemed advisable, may as often as may be required appoint any or all of the following officers: a Chairman, a Deputy-Chairman, a Managing Director, a President, one or more Vice-Presidents, a Treasurer, one or more Assistant Secretaries or one or more Assistant Treasurers. A director may be appointed to any office of the Company but none of the officers except the Chairman, the Deputy-Chairman, the Managing Director, the President and Vice-President need be a director. Two or more of the aforesaid offices may be held by the same person. In case and whenever the same person holds the offices of Secretary and Treasurer he may but need not be known as the Secretary-Treasurer. The directors may from time to time appoint such other officers and agents as they deem necessary who shall have such authority and shall perform such duties as may from time to time be prescribed by the directors.
11.2 Cessation of Office: An officer shall cease to be an officer:
(a) if he becomes bankrupt or compounds with his creditors or is declared insolvent;
(b) if he is found to be of unsound mind;
(c) if by notice in writing to the Company he resigns his office and any such resignation shall be effective at the time it is sent to the Company or at the time specified in the notice, whichever is later: or
(d) if he is removed from office by a resolution of the directors.
11.3 Remuneration: The remuneration of all officers appointed by the directors shall be determined from time to time by resolution of the directors. The fact that any officer or employee is a director or shareholder of the Company shall not disqualify him from receiving such remuneration as may be determined.
11.4 Powers and Duties: All officers shall sign such contracts, documents or instruments in writing as require their respective signatures and shall respectively have and perform all powers and duties incident to their respective offices and such other powers and duties respectively as may from time to time be assigned to them by the directors.
11.5 Delegation: In case of the absence or inability to act of any officer of the Company except a Managing Director or for any other reason that the directors may deem sufficient the directors may delegate all or any of the powers of such officer to any other officer or to any director.
11.6 Chairman: A chairman shall, when present, preside at all meetings of the directors, and any committee of the directors or the shareholders.
11.7 Deputy-Chairman: If the chairman is absent or is unable or refuses to act, the Deputy-Chairman (if any) shall, when present, preside at all meetings of the directors, and any committee of the directors or the shareholders.
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11.8 Managing Director: A Managing Director shall exercise such powers and have such authority as may be delegated to him by the directors in accordance with the provisions of section 80 of the Act.
11.9 President: A President shall be the chief executive officer of the Company. He shall be vested with and may exercise all the powers and shall perform all the duties of a chairman and Deputy-Chairman if none be appointed or if the chairman and the Deputy-Chairman are absent or are unable or refuse to act.
11.10 Vice-President: A Vice-President or, if more than one, the Vice-Presidents, in order of seniority, shall be vested with all the powers and shall perform all the duties of the President in the absence or inability or refusal to act of the President.
11.11 Secretary: The Secretary shall give or cause to be given notices for all meetings of the directors, any committee of the directors and the shareholders when directed to do so and Shall have charge of the minute books and seal of the Company and, subject to the provisions of paragraph 14.1 hereof, or the records (other than accounting records) referred to in section 170 of the Act.
11.12 Treasurer: Subject to the provisions of any resolution of the directors, a Treasurer shall have the care and custody of all the funds end securities of the Company and shall deposit the same in the name of the Company in such bank or banks or with such other depository or depositories as the directors may direct. He shall keep or cause to be kept the accounting records referred to in section 172 of the Act. He may be required to give such bond for the faithful performance of his duties as the directors in their uncontrolled discretion may require but no director shall be liable for failure to require any such bond or for the insufficiency of any such bond or for any loss by reason of the failure of the Company to receive any indemnity thereby provided.
11.13 Assistant Secretary and Assistant Treasurer: The Assistant Secretary or, if more than one, the Assistant Secretaries in order of seniority, and the Assistant Treasurer or, if more than one, the Assistant Treasurers in order of seniority, shall respectively perform all the duties of the Secretary and the Treasurer, respectively, in the absence or inability or refusal to act of the Secretary or the Treasurer, as the case may be.
11.14 General Manager or Manager: The directors may from time to time appoint one or more General Managers or Managers and may delegate to him or them full power to manage and direct the business and affairs of the Company (except such matters and duties as by law must be transacted or performed by the directors or by the shareholders) and to employ and discharge agents and employees of the Company or may delegate to him or them any lesser authority. A General Manager or Manager shall conform to all lawful orders given to him by the directors of the Company and shall at all reasonable times give to the directors or any of them all information they may require regarding the affairs of the Company. Any agent or employee appointed by the General Manager or Manager may be discharged by the directors.
11.15 Vacancies: If the office of any officer of the Company becomes vacant by reason of death, resignation, disqualification or otherwise, the directors by resolution shall, in the case of the Secretory, and may, in the case of any other office, appoint a person to fill such vacancy.
11.16 Tenure: Unless he vacates office under paragraphs 11.2 or 11.15 hereof, an officer
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who is a director shall continue in office for so long as he is a director of the Company notwithstanding that, from time to time, his term of office as a director may expire and he may be re-elected a director of the Company.
12 | SHAREHOLDERS MEETINGS |
12.1 Annual Meeting: Subject to the provisions of section 105 of the Act, the annual meeting or the shareholders shall be held on such day in each year and at such time as the directors may by resolution determine at any place within Barbados or, if all the shareholders entitled to vote at such meeting so agree, outside Barbados.
12.2 Special Meetings: Special meetings of the shareholders may be convened by order of the Chairman, the Deputy-Chairman, the Managing Director, the President, a Vice-President or by the directors at any date and time and at any place within Barbados or, if all the shareholders entitled to vote at such meeting so agree, outside Barbados.
12.2.1 The directors shall, on the requisition of the holders of not less than five percent of the issued shares of the Company that carry a right to vote at the meeting requisitioned, forthwith convene a meeting of shareholders, and in the case of such requisition the following provisions shall have effect:-
(1) The requisition must state the purposes of the meeting and must be signed by the requisitionists and deposited at the Registered Office, and may consist of several documents in like form each signed by one or more of the requisitionists.
(2) If the directors do not, within twenty-one days from the date of the requisition being so deposited, proceed to convene a meeting, the requisitionists or any of them may themselves convene the meeting, but any meeting so convened shall not be held after three months from the date of such deposit.
(3) Unless subsection (3) of section 129 of the Act applies, the directors shall be deemed not to have duly convened the meeting if they do not give such notice as is required by the Act within fourteen days from the deposit of the requisition.
(4) Any meeting convened under this paragraph by the requisitionists shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws and Divisions E and F of Part I of the Act.
(5) A requisition by joint holders of shares must be signed by all such holders.
12.3 Notice: A printed, written or typewritten notice stating the day, hour and place of meeting shall be given by serving such notice on each shareholder entitled to vote at such meeting, on each director and on the auditor of the Company in the manner specified in paragraph 18.1 hereof, not less than twenty-one days or more than fifty days (in each case exclusive of the day on which the notice is delivered or sent and of the day for which notice is given) before the date of the meeting. Notice of a meeting at which special business is to be transacted shall state (a) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon, and (b) the text of any special resolution to be submitted to the meeting.
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12.4 Waiver of Notice: A shareholder and any other person entitled to attend a meeting of shareholders may in any manner waive notice of a meeting of shareholders and attendance of any such person at a meeting of shareholders shall constitute a waiver of notice of the meeting except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
12.5 Omission of Notice: The accidental omission to give notice of any meeting or any irregularity in the notice of any meeting or the non-receipt of any notice by any shareholder, director or the auditor of the Company shall not invalidate any resolution passed or any proceedings taken at any meeting of the shareholders.
12.6 Votes: Every question submitted to any meeting of shareholders shall be decided in the first instance by a show of hands unless a person entitled to vote at the meeting has demanded a ballot and, if the Articles so provide, in the case of an equality of votes the chairman of the meeting shall on a ballot have a casting vote in addition to any votes to which he may be otherwise entitled.
12.6.1 At every meeting at which he is entitled to vote, every shareholder, proxy holder or individual authorised to represent a shareholder who is present in person shall have one vote on a show of hands. Upon a ballot at which he is entitled to vote, every shareholder, proxy holder or individual authorised to represent a shareholder shall, subject to the Articles, have one vote for every share held by the shareholder.
12.6.2 At any meeting unless a ballot is demanded, a declaration by the chairman of the meeting that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact.
12.6.3 When the Chairman, the Deputy-Chairman, the President and the Vice-President are absent, the persons who are present and entitled to vote shall choose another director as chairman of the meeting: but if no director is present or all the directors present decline to take the chair, the persons who are present and entitled to vote shall choose one of their number to be chairman.
12.6.4 A ballot may, either before or after any vote by a show of hands, be demanded by any person entitled to vote at the meeting. If at any meeting a ballot is demanded on the election of a chairman or on the question of adjournment it shall be taken forthwith without adjournment. If at any meeting a ballot is demanded on any other question or as to the election of directors, the vote shall be taken by ballot in such manner and either at once, later in the meeting or after adjournment as the chairman of the meeting directs. The result of a ballot shall be deemed to be the resolution of the meeting at which the ballot was demanded. A demand for a ballot may be withdrawn.
12.6.5 If two or more persons hold shares Jointly, one of those holders present at a meeting of shareholders may, in the absence of the other, vote the shares; but if two or more of those persons who are present, in person or by proxy, vote, they must vote as one on the shares jointly held by them.
12.7 Proxies: Votes at meetings of shareholders may be given either personally or by proxy or, in the case of a shareholder who is a body corporate or association, by an individual authorised by a resolution of the directors or governing body of that body corporate or association
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to represent it at meetings of shareholders of the Company.
12.7.1 A proxy shall be executed by the shareholder or his attorney authorised in writing and is valid only at the meeting in respect of which it is given or any adjournment thereof.
12.7.2 A person appointed by proxy need not be a shareholder.
12.7.3 Subject to the provisions of Part V of the Regulations, a proxy may be in the following form:
The undersigned shareholder of SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED hereby appoints of , or falling him, of as the nominee of the undersigned to attend and act for the undersigned and on behalf of the undersigned at the meeting of the shareholders of the said Company to be held on the day of 19 and at any adjournment or adjournments thereof in the same manner, to the same extent and with the same powers as if the undersigned were present at the said meeting or such adjournment or adjournments thereof.
DATED this day of 19 .
Signature of shareholder
12.8 Adjournment: The chairman of any meeting may with the consent of the meeting adjourn the same from time to time to a fixed time and place and no notice of such adjournment need be given to the shareholders unless the meeting is adjourned by one or more adjournments for an aggregate of thirty days or more in which case notice of the adjourned meeting shall be given as for an original meeting. Any business that might have been brought before or dealt with at the original meeting in accordance with the notice calling the same may be brought before or dealt with at any adjourned meeting for which no notice is required.
12.9 Quorum: In the event that there is only one shareholder of the Company, that shareholder shall constitute a meeting of the shareholders. The business of the meeting shall be resolved in writing and the shareholder shall sign the same in accordance with section 128 of the Act.
12.9.1 In the event that there is more than one shareholder of the Company, subject to the Act, a quorum for the transaction of business at any meeting of the shareholders shall be two persons present in person, each being either a shareholder entitled to vote thereat, or a duly appointed proxy holder or representative of a shareholder so entitled holding between them at least twenty five percent of the issued shares of the Company. If a quorum is present at the opening of any meeting of the shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding a quorum is not present throughout the meeting. If a quorum is not present within 30 minutes of the time fixed for a meeting of shareholders, the persons present and entitled to vote may adjourn the meeting to a fixed time and place but may not transact any other business.
12.10 Resolution in lieu of meeting: Notwithstanding any of the foregoing provisions of this by-law a resolution in writing signed by all the shareholders entitled to vote on that resolution
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at a meeting of the shareholders is. subject to section 128 of the Act, as valid as if it had been passed at a meeting of the shareholders.
13 | SHARES |
13.1 Allotment and Issuance: Subject to the Act, the Articles and any unanimous shareholder agreement, shares in the capital of the Company may be allotted and issued by resolution of the directors at such times and on such terms and conditions and to such persons or class of persons as the directors determine.
13.2 Certificates: Share certificates and the form of share transfer shall (subject to section 181 of the Act) be in such form as the directors may by resolution approve and such certificates shall be signed by a Chairman or a Deputy-Chairman or a Managing Director or a President or a Vice-President and the Secretary or an Assistant Secretary holding office at the time of signing.
13.2.1 The directors or any agent designated by the directors may in their or his discretion direct the issuance of a new share or other such certificate in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken, on payment of such reasonable fee and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the directors may from time to time prescribe, whether generally or in any particular case.
14 | TRANSFER OF SHARES AND DEBENTURES |
14.1 Transfer: The shares or debentures of the Company may be transferred by a written instrument of transfer signed by the transferor and naming the transferee.
14.2 Registers: Registers of shares and debentures issued by the Company shall be kept at the registered office of the Company or at such other place in Barbados as may from time to time be designated by resolution of the directors.
14.3 Surrender of Certificates: Subject to section 179 of the Act, no transfer of shares shall be registered unless or until the certificate representing the shares or debentures to be transferred has been surrendered for cancellation.
14.4 Shareholder Indebted to the Company: If so provided in the Articles, the Company has a lien on a share registered in the name of a shareholder or his personal representative for a debt of that shareholder to the Company. By way of enforcement of such lien the directors may refuse to permit the registration of a transfer of such share.
15 | DIVIDENDS |
15.1 The directors may from time to time by resolution declare and the Company may pay dividends on the issued and outstanding shares in the capital of the Company subject to the provisions (if any) of the Articles end sections 51 and 52 of the Act.
15.1.1 In case several persons are registered as the joint holders of any shares, any one of such persons may give effectual receipts for all dividends and payments on account of dividends.
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16 | VOTING IN OTHER COMPANIES |
16.1 All shares or debentures carrying voting rights in any other body corporate that are held from time to time by the Company may be voted at any and all meetings of shareholders, debenture holders (as the case may be) of such other body corporate and in such manner and by such person or persons as the directors of the Company shall from time to time determine. The officers of the Company may for and on behalf of the Company from time to time:-
(a) execute and deliver proxies; and
(b) arrange for the issuance of voting certificates or other evidence of the right to vote;
In such names as they may determine without the necessity of a resolution or other action by the directors.
17 | INFORMATION AVAILABLE TO SHAREHOLDERS |
17.1 Except as provided by the Act, no shareholder shall be entitled to any information respecting any details or conduct of the Companys business which in the opinion of the directors it would be inexpedient in the interests of the Company to communicate to the public.
17.2 The directors may from time to time, subject to rights conferred by the Act, determine whether and to what extent and at what time and place and under what conditions or regulations the documents, books and registers and accounting records of the Company or any of them shall be open to the inspection of shareholders and no shareholder shall have any right to inspect any document or book or register or accounting record of the Company except as conferred by statute or authorised by the directors or by a resolution of the shareholders.
18 | NOTICES |
18.1 Method of giving notice: Any notice or other document required by the Act, the Regulations, the Articles or the by-laws to be sent to any shareholder, debenture holder, director or auditor may be delivered personally or sent by prepaid mail or electronic communications facilities to any such person at his latest address as shown in the records of the Company or its transfer agent and to any such director at his latest address as shown in the records of the Company or in the latest notice filed under section 66 or 74 of the Act, and to the auditor at his business address.
18.2 Waiver of notice: Notice may be waived or the time for the notice may be waived or abridged at any time with the consent in writing of the person entitled thereto.
18.3 Undelivered notices: If a notice or document is sent to a shareholder or debenture holder by prepaid mail in accordance with this paragraph and the notice or document is returned on three consecutive occasions because the shareholder or debenture holder cannot be found, it shall not be necessary to send any further notices or documents to the shareholder or debenture holder until he informs the Company in writing of his new address.
18.4 Shares and debentures registered in more than one name: All notices or other documents with respect to any shares or debentures registered in more than one name shall be
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given to whichever of such persons is named first in the records of the Company and any notice or other document so given shall be sufficient notice or delivery to all the holders of such shares or debentures.
18.5 Persons becoming entitled by operation of law: Subject to section 184 of the Act, every person who by operation of law, transfer or by any other means whatsoever becomes entitled to any share is bound by every notice or other document in respect of such share that, previous to his name and address being entered in the records of the Company is duly given to the person from whom he derives his title to such share.
18.6 Deceased Shareholders: Subject to section 184 of the Act, any notice or other document delivered or sent by prepaid mail, electronic communications facilities or left at the address of any shareholder as the same appears in the records of the Company shall, notwithstanding that such shareholder is deceased, and whether or not the Company has notice of his death, be deemed to have been duty served in respect of the shares held by him (whether held solely or with any other person) until some other person Is entered in his stead in the records of the Company as the holder or one of the holders thereof and such service shall for all purposes be deemed a sufficient service of such notice or document on his personal representatives and on all persons, if any, Interested with him in such shares.
18.7 Signature to notices: The signature of any director or officer of the Company to any notice or document to be given by the Company may be written, stamped, typewritten or printed or partly written, stamped, typewritten or printed.
18.8 Computation of time: Where a notice extending over a number of days or other period is required under any provisions of the Articles or the by-laws the day of sending the notice shall, unless it is otherwise provided, be counted in such number of days or other period.
18.9 Proof of service: Where a notice required under paragraph 18.1 hereof is delivered personally to the person to whom it is addressed or delivered to his address as mentioned in paragraph 18.1 hereof, service shall be deemed to be at the time of delivery of such notice.
18.9.1 Where such notice is sent by post, service of the notice shall be deemed to be effected forty eight hours after posting if the notice was properly addressed and posted by prepaid mail.
18.9.2 Where the notice is sent by electronic communications facilities, service is deemed to be effected on the date on which the notice is so sent.
18.9.3 A certificate of an officer of the Company in office at the time of the making of the certificate or of any transfer agent of shares of any class of the Company as to facts in relation to the delivery or sending of any notice shall be conclusive evidence of those facts.
19 | CHEQUES, DRAFTS AND NOTES |
19.1 All cheques, drafts or orders for the payment of money and all notes and acceptances and bills of exchange shall be signed by such officers or parsons end in such manner as the directors may from time to time designate by resolution.
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Sherritt International (Cuba) Oil and Gas Limited |
20 | EXECUTION OF INSTRUMENTS |
20.1 Contracts, documents or instruments in writing requiring the signature of the Company may be signed by any two directors and/or officers and all contracts, documents and instruments in writing so signed shall be binding upon the Company without any further authorisation or formality. The directors shall have power from time to time by resolution to appoint any officers or persons on behalf of the Company either to sign certificates for shares in the Company and contracts, documents and instruments in writing generally or to sign specific contracts, documents or instruments in writing.
20.1.1 The common seal of the Company may be affixed to contracts, documents and instruments in writing signed as aforesaid or by any officers or persons appointed pursuant to paragraph 20.1 hereof.
20.1.2 Subject to section 134 of the Act, any two directors and/or officers shall have authority to sign and execute (under the seal of the Company or otherwise) all instruments that may be necessary for the purpose of selling, assigning, transferring, exchanging, converting or conveying any such shares, stocks, bonds, debentures, rights, warrants or other securities.
21 | SIGNATURES |
21.1 The signature of a Chairman, a Deputy-Chairman, a Managing Director, a President, a Vice-President, the Secretary, the Treasurer, an Assistant Secretary or an Assistant Treasurer or any director of the Company or of any officer or person, appointed pursuant to paragraph 20 hereof by resolution of the directors may, if specifically authorised by resolution of the directors, be printed, engraved, lithographed or otherwise mechanically reproduced upon any certificate for shares in the Company or contract, document or instrument in writing, bond, debenture or other security of the Company executed or issued by or on behalf of the Company. Any document or instrument in writing on which the signature of any such officer or person is so reproduced shall be deemed to have been manually signed by such officer or person whose signature is so reproduced end shall be as valid to all intents and purposes as if such document or instrument in writing had been signed manually and notwithstanding that the officer or person whose signature is so reproduced has ceased to hold office at the date on which such document or instrument in writing is delivered or issued.
22 | FINANCIAL YEAR |
22.1 The directors may from time to time by resolution establish the financial year of the Company.
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Index
Adjournment |
10 | |||
Alternate directors |
2 | |||
Annual meeting |
2, 4, 8 | |||
Ballot |
2, 9, 10 | |||
Borrowing |
3 | |||
Business |
2-4, 8-13 | |||
Capital |
11, 12 | |||
Certificate |
11, 12, 14 | |||
Cessation of office |
6 | |||
Chairman |
4, 6-11, 14 | |||
Debenture |
12, 13 | |||
Directors |
1-12, 14 | |||
Dividends |
12 | |||
Execution |
5, 14 | |||
Indemnity |
7, 11 | |||
Lien |
12 | |||
Manager |
7, 8 | |||
Meetings of directors |
3 | |||
Member |
5 | |||
Minutes |
11 | |||
Notice |
2, 3, 6, 8-10, 13, 14 | |||
Office |
1, 2, 5, 6, 8, 11, 14 | |||
Officers |
3-6, 12, 14 | |||
Powers of directors |
3 | |||
President |
6-9, 11, 14 | |||
Proxy |
9-11 | |||
Quorum |
2, 4, 11 | |||
Register |
12 | |||
Registered office |
1, 8, 11 | |||
Resolution |
1-4, 6-12, 14 | |||
Salary |
4 | |||
Secretary |
3, 6-8, 11, 14 | |||
Service |
13, 14 | |||
Shareholders |
2, 4, 7-13 | |||
Signature |
10, 13, 14 | |||
Tenure |
2, 8 | |||
Transfer |
11-14 | |||
Treasurer |
6, 7, 14 | |||
Vice-President |
6-9, 11, 14 | |||
Votes |
4, 9, 10 | |||
Waiver |
3, 9, 13 |
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P. 24 |
BARBADOS
THE COMPANIES ACT CAP. 308
BY-LAW NO. 2
A by-law respecting the borrowing of money, the issuing of securities and the securing of liabilities by:
SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED
BE IT ENACTED as a by-law of SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED (hereinafter called the Company) as follows:
The directors of the Company may from time to time
(a) | borrow money or otherwise obtain credit upon the credit of the Company in such amounts and upon such terms as may be considered advisable; |
(b) | issue, reissue, sell or pledge debt obligations of the Company, including without limitation, bonds, debentures, debenture stock, notes or other securities or obligations of the Company, whether secured or unsecured for such sums, upon such terms, covenants and conditions and at such prices as may be deemed expedient; |
(c) | charge, mortgage, hypothecate, pledge, assign, transfer or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable property of the Company, including without limitation, book debts and unpaid calls, rights, powers, franchises and undertaking, to secure any money borrowed or any other debt or liability of the Company; |
(d) | delegate to such one or more of the officers and directors of the Company as may be designated by the directors all or any of the powers conferred by the foregoing clauses of this By-Law to such extent and in such manner as the directors shall determine at the time of each delegation. |
Exhibit T3B.12
SHERRITT INTERNATIONAL OIL AND GAS LIMITED
(hereinafter called the Corporation)
BY-LAW NO. 1
A BY-LAW RELATING GENERALLY TO THE
TRANSACTION OF THE BUSINESS
AND AFFAIRS OF THE CORPORATION
BE IT ENACTED AS A BY-LAW OF
THE CORPORATION, AS FOLLOWS:
TABLE OF CONTENTS
SECTION 1 |
INTERPRETATION |
1 | ||||
1.01 |
Definitions |
1 | ||||
SECTION 2 |
BUSINESS OF THE CORPORATION |
2 | ||||
2.01 |
Registered Office |
2 | ||||
2.02 |
Corporate Seal |
2 | ||||
2.03 |
Financial Year |
2 | ||||
2.04 |
Execution of Instruments |
2 | ||||
2.05 |
Banking Arrangements |
2 | ||||
2.06 |
Voting Rights in Other Bodies Corporate |
2 | ||||
2.07 |
Divisions |
2 | ||||
SECTION 3 |
BORROWING AND SECURITY |
3 | ||||
3.01 |
Borrowing Power |
3 | ||||
3.02 |
Delegation |
4 | ||||
SECTION 4 |
DIRECTORS |
4 | ||||
4.01 |
Number of Directors |
4 | ||||
4.02 |
Qualification |
4 | ||||
4.03 |
Election and Term |
4 | ||||
4.04 |
Removal of Directors |
4 | ||||
4.05 |
Vacation of Office |
4 | ||||
4.06 |
Vacancies |
4 | ||||
4.07 |
Action by the Board |
5 | ||||
4.08 |
At Least Half Canadians at Meetings |
5 | ||||
4.09 |
Meeting by Telephone |
5 | ||||
4.10 |
Place of Meeting |
5 | ||||
4.11 |
Calling of Meeting |
5 | ||||
4.12 |
Notice of Meeting |
5 | ||||
4.13 |
First Meeting of New Board |
5 | ||||
4.14 |
Adjourned Meeting |
5 |
Carscallen Lockwood Cormie
4.15 |
Regular Meeting |
6 | ||||
4.16 |
Chairman |
6 | ||||
4.17 |
Quorum |
6 | ||||
4.18 |
Votes to Govern |
6 | ||||
4.19 |
Conflict of Interest |
6 | ||||
4.20 |
Remuneration and Expenses |
6 | ||||
SECTION 5 |
COMMITTEES |
6 | ||||
5.01 |
Committees of the Board |
6 | ||||
5.02 |
Transaction of Business |
7 | ||||
5.03 |
Advisory Bodies |
7 | ||||
5.04 |
Procedure |
7 | ||||
SECTION 6 |
OFFICERS |
7 | ||||
6.01 |
Appointment |
7 | ||||
6.02 |
Chairman of the Board |
7 | ||||
6.03 |
Managing Director |
7 | ||||
6.04 |
President |
7 | ||||
6.05 |
Vice-President |
8 | ||||
6.06 |
Secretary |
8 | ||||
6.07 |
Treasurer |
8 | ||||
6.08 |
Powers and Duties of Officers |
8 | ||||
6.09 |
Term of Office |
8 | ||||
6.10 |
Agents and Attorneys |
8 | ||||
6.11 |
Conflict of Interest |
9 | ||||
SECTION 7 |
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS |
9 | ||||
7.01 |
Limitation of Liability |
9 | ||||
7.02 |
Indemnity |
9 | ||||
SECTION 8 |
SHARES |
10 | ||||
8.01 |
Allotment of Shares |
10 | ||||
8.02 |
Commissions |
10 | ||||
8.03 |
Registration of Transfers |
10 | ||||
8.04 |
Non-recognition of Trusts |
10 | ||||
8.05 |
Share Certificates |
10 | ||||
8.06 |
Replacement of Share Certificates |
11 | ||||
8.07 |
Joint Shareholders |
11 | ||||
8.08 |
Deceased Shareholders |
11 | ||||
8.09 |
Lien for Indebtedness |
11 | ||||
8.10 |
Transfer Agents and Registrars |
11 | ||||
SECTION 9 |
DIVIDENDS AND RIGHTS |
12 | ||||
9.01 |
Dividends |
12 | ||||
9.02 |
Dividend Cheques |
12 | ||||
9.03 |
Record Date for Dividends and Rights |
12 |
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SECTION 10 |
MEETINGS OF SHAREHOLDERS |
12 | ||||
10.01 |
Annual Meetings |
12 | ||||
10.02 |
Special Meetings |
13 | ||||
10.03 |
Place of Meetings |
13 | ||||
10.04 |
Notice of Meetings |
13 | ||||
10.05 |
List of Shareholders Entitled to Notice |
13 | ||||
10.06 |
Record Date for Notice |
13 | ||||
10.07 |
Meetings without Notice |
14 | ||||
10.08 |
Chairman, Secretary and Scrutineers |
14 | ||||
10.09 |
Persons Entitled to be Present |
14 | ||||
10.10 |
Quorum |
14 | ||||
10.11 |
Right to Vote |
15 | ||||
10.12 |
Proxyholders and Representatives |
15 | ||||
10.13 |
Time for Deposit of Proxies |
15 | ||||
10.14 |
Joint Shareholders |
15 | ||||
10.15 |
Votes to Govern |
16 | ||||
10.16 |
Show of Hands |
16 | ||||
10.17 |
Ballots |
16 | ||||
10.18 |
Adjournments |
16 | ||||
10.19 |
Action in Writing by Shareholders |
16 | ||||
10.20 |
Only One Shareholder |
16 | ||||
10.21 |
Meeting by Telephone |
17 | ||||
SECTION 11 |
NOTICES |
17 | ||||
11.01 |
Method of Giving Notices |
17 | ||||
11.02 |
Notice to Joint Shareholders |
17 | ||||
11.03 |
Computation of Time |
17 | ||||
11.04 |
Undelivered Notices |
17 | ||||
11.05 |
Omissions and Errors |
17 | ||||
11.06 |
Persons Entitled by Death or Operation of Law |
18 | ||||
11.07 |
Waiver of Notice |
18 | ||||
11.08 |
Interpretation |
18 | ||||
SECTION 12 |
EFFECTIVE DATE |
18 | ||||
12.01 |
Effective Date |
18 |
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SECTION ONE
INTERPRETATION
1.01 Definitions. - In the by-laws of the Corporation, unless the context otherwise requires:
Act means the Business Corporations Act (Alberta), or any statute that may be substituted therefor, as from time to time amended;
appoint includes elect and vice versa;
articles means the articles attached to the Certificate of Incorporation of the Corporation as from time to time amended or restated;
board means the board of directors of the Corporation;
by-laws means this by-law and all other by-laws of the Corporation from time to time in force and effect;
cheque includes a draft;
Corporation means the corporation incorporated under the Act by the said certificate to which the articles are attached and named SHERRITT INTERNATIONAL OIL AND GAS LIMITED;
meeting of shareholders includes an annual meeting of shareholders and a special meeting of shareholders;
recorded address has the meaning set forth in section 11.08;
Regulations means the Regulations under the Act as published or from time to time amended and every regulation that may be substituted therefor and, in the case of such substitution, any references in the by-laws of the Corporation to provisions of the Regulations shall be read as references to the substituted provisions therefor in the new regulations; and
special meeting of shareholders includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders.
Except as defined above, words and expressions defined in the Act and the Regulations, including resident Canadian and unanimous shareholder agreement, have the same meanings when used herein. Words importing the singular number include the plural and vice versa; words importing gender include the masculine, feminine and neuter genders; and words, importing a person include an individual, partnership, association, body corporate, trustee, executor, administrator and legal representative.
Carscallen Lockwood Cormie
SECTION 2
BUSINESS OF THE CORPORATION
2.01 Registered Office - The registered office of the Corporation shall be at the place within the Province of Alberta as is specified in the notice thereof filed with the articles and thereafter as the Board may from time to time determine.
2.02 Corporate Seal - The Corporation may have one or more different corporate seals, which seals may be adopted or changed from time to time by the board.
2.03 Financial Year - The financial year of the Corporation shall end on such date as may be determined by the directors from time to time.
2.04 Execution of Instruments - Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two directors or officers. In addition, this does not limit the power of the board to, from time to time, direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal to any instrument requiring the same.
2.05 Banking Arrangements - The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time prescribe.
2.06 Voting Rights in Other Bodies Corporate - The signing officers of the Corporation under section 2.04 may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such instruments shall be in favour of such persons as may be determined by the officers executing or arranging for them. In addition, the board may from time to time direct the manner in which and the persons by whom any particular voting rights or class of voting rights may or shall be exercised.
2.07 Divisions - The board may cause the business and operations of the Corporation or any part thereof to be divided into one or more divisions upon a basis, including without limitation types of business or operations, geographical territories, product lines or goods or services, as may be considered appropriate in each case. In connection with any such division the board or, subject to any direction by the board, the chief executive officer, may authorize from time to time, upon such basis as may be considered appropriate in each case:
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(a) | Subdivision and Consolidation - the further division of the business and operations of any division into sub-units and the consolidation of the business and operations of any divisions and sub-units; |
(b) | Name - the designation of any division or sub-unit by, and the carrying on of the business and operations of any division or sub-unit under, a name other than the name of the Corporation; provided that the Corporation shall set out its name in legible characters in all places required by law; and |
(c) | Officers - the appointment of officers for any division or sub-unit, the determination of their powers and duties, and the removal of any officers so appointed, provided that any such officers shall not by reason of their being officers of a division or sub-unit, be officers of the Corporation. |
SECTION THREE
BORROWING AND SECURITY
3.01 Borrowing Power - Without limiting the borrowing powers of the Corporation as set forth in the Act, but subject to the articles and any unanimous shareholder agreement, the board may from time to time on behalf of the Corporation, without authorization of the shareholders;
(a) | borrow money upon the credit of the Corporation; |
(b) | issue, reissue, sell or pledge bonds, debentures, notes or other evidences of indebtedness or guarantee of the Corporation whether secured or unsecured; |
(c) | to the extent permitted by the Act, give a guarantee on behalf of the Corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and |
(d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation. |
Nothing in this section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
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3.02 Delegation - The board may from time to time delegate to a committee of the board, a director or an officer of the Corporation or any other person as may be designated by the board all or any of the powers conferred on the board by section 3.01 or by the Act to such extent and in such manner as the board may determine at the time of such delegation.
SECTION FOUR
DIRECTORS
4.01 Number of Directors - Until changed in accordance with the Act, the board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the articles.
4.02 Qualification - No person shall be qualified for election as a director if he is less than 18 years of age; if he is a dependent adult as defined in The Dependent Adults Act (Alberta) or is the subject of a certificate of incapacity under that Act, is a formal patient as defined in The Mental Health Act (Alberta), is the subject of an order under The Mentally Incapacitated Persons Act (Alberta) appointing a committee of his person or estate or both, or has been found to be a person of unsound mind by a court in Alberta or elsewhere, if he is not an individual; or if he has the status of a bankrupt. A director need not be a shareholder. At least half of the directors shall be resident Canadians.
4.03 Election and Term - The election of directors shall take place at each annual meeting of shareholders and all the directors then in office shall retire but, if qualified, shall be eligible for re-election. The number of directors to be elected at any such meeting shall be the number of directors then in office unless the directors or shareholders by simple majority otherwise determine from time to time. Where the shareholders adopt an amendment to the articles to increase the number or minimum number of directors, the shareholders may, at the meeting at which they adopt the amendment, elect the additional number of directors authorized by the amendment. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.
4.04 Removal of Directors - Subject to the Act or a unanimous shareholder agreement the shareholders may by resolution passed at a meeting of shareholders specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting, failing which it may be filled by the board.
4.05 Vacation of Office - A director ceases to hold office when he dies; he is removed from office by the shareholders; he ceases to be qualified for election as a director; or his written resignation is sent or delivered to the Corporation, or, if a time is specified in such resignation, at the time so specified, whichever is later.
4.06 Vacancies - Subject to the Act, a quorum of the board may appoint a qualified individual to fill a vacancy in the board.
- 4 - | Carscallen Lockwood Cormie |
4.07 Action by the Board - Subject to any unanimous shareholder agreement, the board shall manage the business and affairs of the Corporation. The powers of the board may be exercised at a meeting (subject to sections 4.08 and 4.09) at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the board. Where there is a vacancy in the board, the remaining directors may exercise all the powers of the board so long as a quorum remains in office.
4.08 At Least Half Canadians at Meetings - The board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least half of the directors present are resident Canadians, except where
(a) | a resident Canadian director who is unable to be present approves in writing or by telephone or other communications facilities the business transacted at the meeting; and |
(b) | the number of resident Canadian directors present at the meeting, together with any resident Canadian director who gives his approval under clause (a), totals at least half of the directors present at the meeting. |
4.09 Meeting by Telephone - A director may participate in a meeting of the board or of a committee of the board by means of conference telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed to be present at the meeting.
4.10 Place of Meetings - Meetings of the board may be held at any place in or outside Alberta.
4.11 Calling of Meeting - Meetings of the board shall be held from time to time at such time and at such place as the board, the chairman of the board, the managing director, the president or any two directors may determine.
4.12 Notice of Meeting - Notice of the time and place of each meeting of the board shall be given in the manner provided in Section Eleven to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business or the general nature thereof to be specified.
4.13 First Meeting of New Board - Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting immediately following the meeting of shareholders at which such board is elected.
4.14 Adjourned Meeting - Notice of an adjourned meeting of the board is not required if the time and place of the adjourned meeting is announced at the original meeting.
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4.15 Regular Meetings - The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except where the Act requires the purpose thereof or the business to be transacted thereat to be specified.
4.16 Chairman - The chairman of any meeting of the board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting; chairman of the board, managing director or president. If no such officer is present, the directors present shall choose one of their number to be chairman.
4.17 Quorum - Subject to section 4.08, the quorum for the transaction of business at any meeting of the board shall be a majority of directors or such greater number of directors as the board may from time to time determine. Where the Corporation has a board consisting of only one director, that director may constitute a meeting.
4.18 Votes to Govern - At all meetings of the board every question shall be decided by a majority of the votes cast on the question. In case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
4.19 Conflict of Interest - A director who is a party to, or who is a director or officer of or has a material interest in any person who is a party to, a material contract or proposed material contract with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided by the Act. Any such contract or proposed contract shall be referred to the board or shareholders for approval even if such contract is one that in the ordinary course of the Corporations business would not require approval by the board or shareholders. Such a director shall not vote on any resolution to approve any such contract or proposed contract except as permitted by the Act.
4.20 Remuneration and Expenses - Subject to any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
SECTION FIVE
COMMITTEES
5.01 Committees of the Board - The board may appoint one or more committees of the board, however designated, and delegate to any such committee any of the powers of the board except those which pertain to items which, under the Act, a committee of the
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board has no authority to exercise. At least half of the members of any such committee shall be resident Canadians.
5.02 Transaction of Business - The powers of a committee of the board may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place in or outside Canada.
5.03 Advisory Bodies - The board may from time to time appoint such advisory bodies as it may deem advisable.
5.04 Procedure - Unless otherwise determined by the board, each committee and advisory body shall have power to fix its quorum at not less than a majority of its members, to elect its chairman and to regulate its procedure.
SECTION SIX
OFFICERS
6.01 Appointment - Subject to any unanimous shareholder agreement, the board may from time to time appoint a president, one or more vice-presidents (to which title may be added words indicating seniority or function), a secretary, a treasurer and such other officers as the board may determine, including one or more assistants to any of the officers so appointed. One person may hold more than one office. The board may specify the duties of and, in accordance with this by-law and subject to the Act, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not be a director.
6.02 Chairman of the Board - The board may from time to time also appoint a chairman of the board who shall be a director. If appointed, the board may assign to him any of the powers and duties that are by any provisions of this by-law assigned to the managing director or to the president; and he shall have such other powers and duties as the board may specify.
6.03 Managing Director - The board may from time to time also appoint a managing director who shall be a resident Canadian and a director. If appointed, he shall be the chief executive officer and, subject to the authority of the board, shall have general supervision of the business and affairs of the Corporation; and he shall have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the managing director shall also have the powers and duties of that office unless the board directs that a vice-president shall assume those powers and duties pursuant to section 6.05.
6.04 President - The president shall be the chief operating officer and, subject to the authority of the board, shall have general supervision of the business of the Corporation,
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and he shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.
6.05 Vice-President - Subject to section 6.03, during the absence or disability of the president his duties shall be performed and his powers exercised by the vice-president or, if there are more than one, by the vice-president designated from time to time by the board or the president. A vice-president shall have such other powers and duties as the board or subject to section 6.08 the president may prescribe.
6.06 Secretary - The secretary shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; he shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the board; he shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation and of all books, records and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and he shall have such other powers and duties as otherwise may be specified.
6.07 Treasurer - The treasurer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; he shall render to the board whenever required an account of all his transactions as treasurer and of the financial position of the Corporation; and he shall have such other powers and duties as otherwise may be specified.
6.08 Powers and Duties of Officers - The powers and duties of all officers shall be such as the terms of their engagement call for or as the board or (except for those whose powers and duties are to be specified only by the board) the chief executive officer or the president may specify. The board (except as aforesaid) the chief executive office or the president if designated by the board may, from time to time and subject to the provisions of the Act, vary, add to or limit the powers and duties of any officer. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the board, the chief executive officer or the president if designated by the board otherwise directs.
6.09 Term of Office - The board, in its discretion, may remove any officer of the Corporation. Otherwise each officer appointed by the board shall hold office until his successor is appointed or until his earlier resignation.
6.10 Agents and Attorneys - The Corporation, by or under the authority of the board, shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers (including the power to subdelegate) of management, administration or otherwise as may be thought fit.
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6.11 Conflict of Interest - An officer shall disclose his interest in any material contract or proposed material contract with the Corporation in accordance with section 4.19.
SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability - Every director and officer of the Corporation in exercising his powers and discharging his duties shall act honestly and in good faith with a view to the best interests of the Corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Subject to the foregoing, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director, officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on his part, or for any other loss, damage or misfortune which shall happen in the execution of the duties of his office or in relation thereto; provided that nothing herein shall relieve any director or officer from the duty to act in accordance with the Act and the regulations thereunder or from liability for any breach thereof.
7.02 Indemnity - Subject to the Act, the Corporation shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or such body corporate, if (a) he acted honestly and in good faith with a view to be the best interests of the Corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Corporation may also indemnify such person in such other circumstances as the Act or law permits. Nothing in this by-law shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this by-law.
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SECTION EIGHT
SHARES
8.01 Allotment of Shares - Subject to the Act, the articles and any unanimous shareholder agreement, the board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.
8.02 Commissions - The board may from time to time authorize the Corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
8.03 Registration of Transfers - Subject to the Act, no transfer of a share shall be registered in a securities register except upon presentation of the certificate representing such share with an endorsement which complies with the Act made thereon or delivered therewith duly executed by an appropriate person as provided by the Act, together with such reasonable assurance that the endorsement is genuine and effective as the board may from time to time prescribe, upon payment of all applicable taxes and any reasonable fees prescribed by the board, upon compliance with such restrictions on transfer as are authorized by the articles and upon satisfaction of any lien referred to in section 8.09.
8.04 Non-recognition of Trusts - Subject to the Act, the Corporation may treat the registered holder of any share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payment in respect of the share, and otherwise to exercise all the rights and powers of an owner of the share.
8.05 Share Certificates - Every holder of one or more shares of the Corporation shall be entitled, at his option, to a share certificate, or to a non-transferable written certificate of acknowledgement of his right to obtain a share certificate, stating the numbers and class or series of shares held by him as shown on the securities register.
Such certificates shall be in such form as the board may from time to time approve. Any such certificate shall be signed in accordance with section 2.04 and need not be under the corporate seal. Notwithstanding the foregoing, unless the board otherwise determines, certificates in respect of which a registrar, transfer agent, branch transfer agent or issuing or other authenticating agent has been appointed shall not be valid unless countersigned by or on behalf of such registrar, transfer agent, branch transfer agent or issuing or other authenticating agent. The signature of one of the signing officers under section 2.04 (or, in the case of a certificate which is not valid unless countersigned by or on behalf of a registrar, transfer agent, branch transfer agent or issuing or other authenticating agent, the signatures of both signing officers under section 2.04) may be printed or otherwise mechanically reproduced thereon. Every such printed
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or mechanically reproduced signature shall for all purposes be deemed to be the signature of the officer whose signature it reproduces and shall be binding upon the Corporation. A certificate executed as aforesaid shall be valid notwithstanding that one or both of the officers whose printed or mechanically reproduced signature appears thereon no longer holds office at the date of issue of the certificate.
8.06 Replacement of Share Certificates - The board or any officer or agent designated by the board may in its or his discretion direct the issue of a new share or other such certificate in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken on payment of such reasonable fee and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the board may from time to time prescribe, whether generally or in any particular case.
8.07 Joint Shareholders - If two or more persons are registered as joint holders of any share, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such share.
8.08 Deceased Shareholders - In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make any dividend or other payments in respect thereof except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents.
8.09 Lien of Indebtedness - If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
8.10 Transfer Agents and Registrars - The Corporation may from time to time, in respect of each class of securities issued by it, appoint a trustee, transfer or other agent to keep the securities register and the register of transfers, and a registrar, trustee or agent to maintain a record of issued security certificates, and may appoint one or more persons or agents to keep branch registers, and, subject to the Act, one person may be appointed to keep the securities register, register of transfers and the records of issued security certificates. Such appointment may be terminated at any time by the board.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 Dividends - Subject to the Act, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation. Any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9.02 Dividend Cheques - A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at his recorded address, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their recorded address. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the board may from time to time prescribe, whether generally or in any particular case.
9.03 Record Date for Dividends and Rights - The board may fix in advance a date, preceding by not more that 50 days the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, and notice of any such record date shall be given not less than 7 days before such record date in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the board.
SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 Annual Meetings - The annual meeting of shareholders shall be held at such time in each year and, subject to section 10.03, at such place as the board, the chairman of the board, the managing director or the president may from time to time determine, for
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the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting.
10.02 Special Meetings - The board, the chairman of the board, the managing director or the president shall have power to call a special meeting of shareholders at any time.
10.03 Place of Meetings - Meetings of shareholders shall be held at the registered office of the Corporation or elsewhere in the municipality in which the registered office is situate or, if the board shall so determine, at some other place in Alberta or, if all the shareholders entitled to vote at the meeting so agree, at some place outside Alberta or if the articles so provide at some place outside Alberta.
10.04 Notice of Meetings - Notice of the time and place of each meeting of shareholders shall be given in the manner provided in Section Eleven not less than 21 nor more than 50 days before the date of the meeting to each director, to the auditor, and to each shareholder who at the close of business on the record date for notice is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditors report, election of directors and reappointment of the incumbent auditor shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.
10.05 List of Shareholders Entitled to Notice - If the Corporation has more than 15 shareholders entitled to vote at a meeting of shareholders, it shall prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder entitled to vote at the meeting. If a record date for the meeting is fixed pursuant to section 10.06, the shareholders listed shall be those registered at the close of business on such record date. If no record date is fixed, the shareholders listed shall be those registered at the close of business on the day immediately preceding the day on which notice of the meeting is given or, where no such notice is given, on the day on which the meeting is held. The list shall be available for examination by any shareholder during usual business hours at the records office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared. Where a separate list of shareholders has not been prepared, the names of persons appearing in the securities register at the requisite time as the holder of one or more shares carrying the right to vote at such meeting shall be deemed to be a list of shareholders.
10.06 Record Date for Notice - The board may fix in advance a date, preceding the date of any meeting of shareholders by not more than 50 days and not less than 21 days, as a record date for the determination of the shareholders entitled to notice of the meeting, and notice of any such record date shall be given not less than 7 days before such record date, by newspaper advertisement in the manner provided in the Act and by written notice to each stock exchange in Canada on which the shares of the Corporation
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are listed for trading. If no such record date is so fixed, the record date for the determination of the shareholders entitled to receive notice of the meeting shall be at the close of business on the day immediately preceding the day on which the notice is given or, if no notice is given, shall be the day on which the meeting is held.
10.07 Meetings Without Notice - A meeting of shareholders may be held without notice at any time and place permitted by the Act (a) if all the shareholders entitled to vote thereat are present in person or duly represented or if those not present or represented waive notice of or otherwise consent to such meeting being held, and (b) if the auditors and the directors are present or waive notice of or otherwise consent to such meeting being held, so long as such shareholders, auditors or directors present are not attending for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. At such a meeting any business may be transacted which the Corporation at a meeting of shareholders may transact. If the meeting is held at a place outside Alberta, shareholders not present or duly represented, but who have waived notice of or otherwise consented to such meeting, shall also be deemed to have consented to the meeting being held at such place.
10.08 Chairman, Secretary and Scrutineers - The chairman of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed and who is present at the meeting: managing director, president, chairman of the board, or a vice-president who is a shareholder. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting.
10.09 Persons Entitled to be Present - The only persons entitled to be present at a meeting of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting.
10.10 Quorum - Subject to the Act in respect of a sole shareholder, a quorum for the transaction of business at any meeting of shareholders shall be two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxyholder or representative for a shareholder so entitled, and together holding or representing shares of the Corporation having not less than 10% of the outstanding votes entitled to be cast at the meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders
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present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.11 Right to Vote - Every person named in the list referred to in section 10.05 shall be entitled to vote the shares shown thereon opposite his name at the meeting to which such list relates, except to the extent that (a) where the Corporation has fixed a record date in respect of such meeting, such person has transferred any of his shares after such record date or, where the Corporation has not fixed a record date in respect of such meeting, such person has transferred any of his shares after the date on which such list is prepared, and (b) the transferee, having produced properly endorsed certificates evidencing such shares or having otherwise established that he owns such shares, has demanded not later than 10 days before the meeting or any shorter period that the chairman of the meeting may permit that his name be included in such list. In any such excepted case the transferee shall be entitled to vote the transferred shares at such meeting.
10.12 Proxyholders and Representatives - Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder and one or more alternate proxyholders, to attend and act as his representative at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or his attorney and shall conform with the requirements of the Act. Alternatively, every such shareholder which is a body corporate or association may authorize by resolution of its directors or governing body an individual to represent it at a meeting of shareholders and such individual may exercise on the shareholders behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting. Any such proxyholder or representative need not be a shareholder. A proxy ceases to be valid one year from its date.
10.13 Time for Deposit of Proxies - The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours, excluding Saturdays and holidays, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time has been specified in such notice, it has been received by the secretary of the Corporation or by the chairman of the meeting or any adjournment thereof prior to the time of voting.
10.14 Joint Shareholders - If two or more persons hold shares jointly, any one of them present in person or duly represented at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented and vote, they shall vote as one the shares jointly held by them.
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10.15 Votes to Govern - At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by-law, be determined by a majority of the votes cast on the question. In case of an equality of votes either upon a show of hands or upon a poll, the chairman of the meeting shall be entitled to a second or casting vote.
10.16 Show of Hands - Subject to the Act, any question at a meeting of shareholders shall be decided by a show of hands, unless a ballot thereon is required or demanded as hereinafter provided, and upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been taken upon a question, unless a ballot thereon is so required or demanded, a declaration by the chairman of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the shareholders upon the said question.
10.17 Ballots - On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairman may require a ballot or any person who is present and entitled to vote on such question at the meeting may demand a ballot. A ballot so required or demanded shall be taken in such manner as the chairman shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which he is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon the said question.
10.18 Adjournment - The chairman at a meeting of shareholders may, with the consent of the meeting and subject to such conditions at the meeting may decide, adjourn the meeting form time to time and from place to place. If a meeting of shareholders is adjourned for less than 30 days, it shall not be necessary to give notice of the adjourned meeting, other than by announcement at the time of adjournment. Subject to the Act, if a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.19 Action in Writing by Shareholders - A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
10.20 Only One Shareholder - Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or duly represented constitutes a meeting.
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10.21 Meeting by Telephone - A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephone or other communications facility that permits all persons participating in the meeting to hear each other, and a person participating in such a meeting by those means is deemed to be present at the meeting.
SECTION ELEVEN
NOTICES
11.01 Method of Giving Notice - Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the regulations thereunder, the articles, the by-laws or otherwise to a shareholder, director, officer, auditor or member of a committee of the board shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to his recorded address or if mailed to him at his recorded address by prepaid ordinary or air mail or if sent to him at his recorded address by any means of prepaid transmitted or recorded communication. A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been given when deposited in a post office or public letter box; and a notice so sent by any means of transmitted or recorded communication shall be deemed to have been given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the board in accordance with any information believed by him to be reliable.
11.02 Notice to Joint Shareholders - If two or more persons are registered as joint holders of any share, any notice may be addressed to all such joint holders, but notice addressed to one of such persons shall be sufficient notice to all of them.
11.03 Computation of Time - In computing the date when notice must be given under any provision requiring a specified number of days notice of any meeting or other event, the day of giving the notice shall be excluded and the day of the meeting or other event shall be included, unless the computation of time is required by law to be performed differently.
11.04 Undelivered Notices - If any notice given to a shareholder pursuant to section 11.01 is returned on three consecutive occasions because he cannot be found, the Corporation shall not be required to give any further notices to such shareholder until he informs the Corporation in writing of his new address.
11.05 Omissions and Errors - The accidental omission to give any notice to any shareholder, director, officer auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the
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substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.
11.06 Persons Entitled by Death or Operation of Law - Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom he derives his title to such share prior to his name and address being entered on the securities register (whether such notice was given before or after the happening of the event upon which he became so entitled) and prior to his furnishing to the Corporation the proof of authority or evidence of his entitlement prescribed by the Act.
11.07 Waiver of Notice - Any shareholder, proxyholder or other person entitled to attend a meeting of shareholders, director, officer, auditor or member of a committee of the board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to him under the Act, the regulations thereunder, the articles, the by-laws or otherwise, and such waiver or abridgement, whether given before or after the meeting or other extent of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board or a committee of the board which may be given in any manner.
11.08 Interpretation - In this by-law, recorded address means in the case of a shareholder his address as recorded in the securities register; and in the case of joint shareholders the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one; and in the case of a director, officer, auditor or member of a committee of the board, this latest address as recorded in the records of the Corporation.
SECTION TWELVE
EFFECTIVE DATE
12.01 Effective Date. - This by-law shall come into force when made by the board in accordance with the Act.
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Exhibit T3B.13
BY-LAW NO. 1
of
SI FINANCE LTD.
(the Corporation)
1. INTERPRETATION
1.1 Expressions used in this By-law shall have the same meanings as corresponding expressions in the Business Corporations Act (Ontario) (the Act).
2. CORPORATE SEAL
2.1 Until changed by the directors, the corporate seal of the Corporation shall be in the form impressed in the margin hereof.
3. FINANCIAL YEAR
3.1 Until changed by the directors, the financial year of the Corporation shall end on the last day of December in each year.
4. DIRECTORS
4.1 Number. The number of directors shall be not fewer than the minimum and not more than the maximum provided in the articles. At each election of directors the number elected shall be such number as shall be determined from time to time by special resolution or, if the directors are empowered by special resolution to determine the number, by the directors.
4.2 Quorum. A quorum of directors shall be two-fifths of the number of directors or such greater number as the directors or shareholders may from time to time determine.
4.3 Calling of Meetings. Meetings of the directors shall be held at such time and place within or outside Ontario as the Chairman of the Board, the President or any two directors may determine. A majority of meetings of directors need not be held within Canada in any financial year.
4.4 Notice of Meetings. Notice of the time and place of each meeting of directors shall be given to each director by telephone not less than 48 hours before the time of the meeting
or by written notice not less than four days before the date of the meeting, provided that the first meeting immediately following a meeting of shareholders at which directors are elected may be held without notice if a quorum is present. Meetings may be held without notice if the directors waive or are deemed to waive notice.
4.5 Chairman. The Chairman of the Board, or in his absence the President if a director, or in his absence a director chosen by the directors at the meeting, shall be chairman of any meeting of directors.
4.6 Voting at Meetings. At meetings of directors each director shall have one vote and questions shall be decided by a majority of votes. In case of an equality of votes the Chairman of the meeting shall have a second or casting vote.
5. OFFICERS
5.1 General. The directors may from time to time appoint a Chairman of the Board, a President, one or more Vice-Presidents, a Secretary, a Treasurer and such other officers as the directors may determine.
5.2 Chairman of the Board. The Chairman of the Board, if any, shall be appointed from among the directors and when present shall be chairman of meetings of directors and shareholders and shall have such other powers and duties as the directors may determine.
5.3 President. Unless the directors otherwise determine the President shall be appointed from among the directors and shall be the chief executive officer of the Corporation and shall have general supervision of its business and affairs and in the absence of the Chairman of the Board shall be chairman of meetings of directors and shareholders when present.
5.4 Vice-President. A Vice-President shall have such powers and duties as the directors or the chief executive officer may determine.
5.5 Secretary. The Secretary shall give required notices to shareholders, directors, auditors and members of committees, act as secretary of meetings of directors and shareholders when present, keep and enter minutes of such meetings, maintain the corporate records of the
Corporation, have custody of the corporate seal and shall have such other powers and duties as the directors or the chief executive officer may determine.
5.6 Treasurer. The Treasurer shall keep proper accounting records in accordance with the Act, have supervision over the safekeeping of securities and the deposit and disbursement of funds of the Corporation, report as required on the financial position of the Corporation, and have such other powers and duties as the directors or the chief executive officer may determine.
5.7 Assistants. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant unless the directors or the chief executive officer otherwise direct.
5.8 Variation of Duties. The directors may, from time to time, vary, add to or limit the powers and duties of any officer.
5.9 Term of Office. Each officer shall hold office until his successor is elected or appointed, provided that the directors may at any time remove any officer from office but such removal shall not affect the rights of such officer under any contract of employment with the Corporation.
6. INDEMNIFICATION AND INSURANCE
6.1 Indemnification of Directors and Officers. The Corporation shall indemnify a director or officer, a former director or officer or a person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and the heirs and legal representative of such a person to the extent permitted by the Act.
6.2 Insurance. The Corporation may purchase and maintain insurance for the benefit of any person referred to in the preceding section to the extent permitted by the Act.
7. SHAREHOLDERS
7.1 Quorum. A quorum for the transaction of business at a meeting of shareholders shall be two persons present and each entitled to vote at the meeting.
7.2 Casting Vote. In case of an equality of votes at a meeting of shareholders the Chairman of the meeting shall have a second or casting vote.
7.3 Electronic Meetings. A meeting of shareholders may be held by telephonic or electronic means and a shareholder who, through those means, votes at a meeting or establishes a communications link to a meeting shall be deemed to be present at that meeting.
7.4 Scrutineers. The Chairman at any meeting of shareholders may appoint one or more persons (who need not be shareholders) to act as scrutineer or scrutineers at the meeting.
8. DIVIDENDS AND RIGHTS
8.1 Declaration of Dividends. Subject to the Act, the directors may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation.
8.2 Cheques. A dividend payable in money shall be paid by cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at the address of such holder in the Corporations securities register, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their address in the Corporations securities register. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.
8.3 Non-Receipt of Cheques. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the directors may from time to time prescribe, whether generally or in any particular case.
8.4 Unclaimed Dividends. Any dividend unclaimed after a period of six years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
9. EXECUTION OF INSTRUMENTS
9.1 Deeds, transfers, assignments, agreements, proxies and other instruments may be signed on behalf of the Corporation by any two directors or any two officers or by a director and an officer or by one of the Chairman of the Board, the President and a Vice-President together with one of the Secretary and the Treasurer or in such other manner as the directors may determine; except that insider trading reports may be signed on behalf of the Corporation by any one director or officer of the Corporation.
10. NOTICE
10.1 A notice mailed to a shareholder, director, auditor or member of a committee shall be deemed to have been received on the fifth day after mailing.
10.2 Accidental omission to give any notice to any shareholder, director, auditor or member of a committee or non-receipt of any notice or any error in a notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice.
RESOLVED THAT the foregoing by-law is made a by-law of the Corporation by the signature hereto of the sole director of the Corporation pursuant to the Business Corporations Act (Ontario), this 29th day of May, 2007.
/s/ Stephen Jaggers |
Stephen Jaggers |
RESOLVED THAT the foregoing by-law is confirmed as a by-law of the Corporation by the signature hereto of the sole shareholder of the Corporation pursuant to the Business Corporations Act (Ontario), this 29th day of May, 2007.
/s/ Stephen Jaggers |
Stephen Jaggers |
Exhibit T3B.14
BY-LAW NO. 1
(A by-law relating generally to the conduct
of the affairs of 501109 N.B. LTD.)
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of 501109 N.B. LTD. (hereinafter called the Corporation) as follows:
INTERPRETATION
1. In this by-law and all other by-laws of the Corporation, unless the context otherwise specifies or requires:
(a) |
Act means the Business Corporations Act, Statutes of New Brunswick, 1981, c. B-9.1, as from time to time amended, and every statute that may be substituted therefor and, in the case of such amendment or substitution, any reference in the by-laws of the Corporation shall be read as referring to the amended or substituted provisions therefor; |
(b) |
by-law means any by-law of the Corporation, from time to time in force and effect; |
(c) |
any term contained in the by-laws that is defined in the Act shall have the meaning given to such term in the Act; |
(d) |
words importing the singular number only shall include the plural and vice versa; words importing the masculine gender shall include the feminine and neuter genders; words importing persons shall include bodies corporate, corporations, companies, partnerships, syndicates, trusts and any number or aggregate of persons; and |
(e) |
the headings used in the by-laws are inserted for reference purposes only and are not to be considered or taken into account in construing the terms or provisions thereof or to be deemed in any way to clarify, modify or explain the effect of any such terms or provisions. |
REGISTERED OFFICE
2. The Corporation may from time to time (i) by resolution of the board of directors change the address of the registered office of the Corporation within the place in New Brunswick specified in its articles, and (ii) by an amendment to its articles, change the place in which its registered office is situated.
SEAL
3. The Corporation may, but need not, have a corporate seal. The corporate seal of the Corporation shall be such as the directors may by resolution from time to time adopt. An instrument or agreement executed on behalf of the Corporation by a director, an officer or an agent of the Corporation is not invalid merely because the corporate seal, if any, is not affixed thereto.
DIRECTORS
4. Number and powers
There shall be a board of directors consisting of one (1) director. Subject to the articles and any unanimous shareholder agreement, the directors shall manage the business and affairs of the Corporation and may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation and are not by the Act, the articles, the by-laws, any special resolution of the Corporation, a unanimous shareholder agreement or by statute expressly directed or required to be done in some other manner.
Notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors.
Subject to section 69 of the Act and to the Corporations articles, where there is a quorum of directors in office and a vacancy occurs, the directors remaining in office may appoint a qualified person to hold office for the unexpired term of his predecessor.
5. Duties
Every director and officer of the Corporation in exercising his powers and discharging his duties shall:
(a) |
act honestly and in good faith, and |
(b) |
exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, |
in the best interests of the Corporation.
6. Qualification
Every director shall be an individual nineteen (19) or more years of age and no one who is of unsound mind and has been so found by a court in Canada or elsewhere or who has the status of a bankrupt or who has been convicted of an offence described in paragraph 63(l)(e) of the Act shall be a director. Directors need not be citizens or
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residents of Canada.
7. Term of office
A directors term of office (subject to the provisions, if any, of the Corporations articles, and subject to his election for an expressly stated short term) shall be from the date of the meeting at which he is elected or appointed until the close of the annual meeting of shareholders next following his election or appointment or until his successor is elected or appointed.
8. Vacation of office
The office of a director shall be vacated if:
(a) |
he dies; |
(b) |
he sends to the Corporation a written resignation (and such resignation is effective immediately unless a later time is specified in the resignation in which case the later time prevails); |
(c) |
he is removed from office; or |
(d) |
he becomes disqualified by virtue of failing to satisfy the requirements of clause 6, above. |
9. Election and removal
Directors shall be elected by the shareholders in general meeting by ordinary resolution on a show of hands unless a poll is demanded and if a poll is demanded such election shall be by ballot. All the directors then in office shall cease to hold office at the close of the meeting of shareholders at which directors are to be elected but, if qualified, are eligible for re-election. Subject to subsections 65(6) and 67(2) of the Act, the shareholders of the Corporation may by ordinary resolution at a special meeting remove any director before the expiration of his term of office and, subject to subsections 65(1) and (4) of the Act, may, by a majority of the votes cast at the meeting, elect any person in his stead for the remainder of his term.
Whenever at any election of directors of the Corporation the number of directors required by the bylaws is not elected by reason of the disqualification, incapacity or the death of any candidate, the directors elected at that meeting may exercise all the powers of the directors if the number of directors so elected constitutes a quorum.
Each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by him multiplied by the number of directors to be elected, and he may cast all such votes in favour of one candidate or distribute them among the candidates in any manner.
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A separate vote of shareholders shall be taken with respect to each candidate nominated for director unless a resolution is passed unanimously permitting two or more persons to be elected by a single resolution.
If a shareholder has voted for more than one candidate without specifying the distribution of his votes among the candidates, he shall be deemed to have distributed his votes equally among the candidates for whom he voted.
If the number of candidates nominated for director exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled.
A retiring director shall cease to hold office at the close of the meeting at which his successor is elected unless such meeting was called for the purpose of removing him from office as a director in which case the director so removed shall vacate office forthwith upon the passing of the resolution for his removal.
10. Validity of acts
An act of a director or officer is valid notwithstanding an irregularity in his election or appointment or a defect in his qualification.
MEETING OF DIRECTORS
11. Place of meeting
Subject to the articles, meetings of directors and of any committee of directors may be held at any place within or outside Canada. A meeting of directors may be convened by the Chairman of the Board (if any), the President or any director at any time and the Secretary shall upon direction of any of the foregoing convene a meeting of directors.
12. Notice
Notice of the time and place for the holding of any such meeting shall be delivered, mailed, telegraphed, cabled, telexed or telecopied to each director not less than two (2) days (exclusive of the day on which the notice is delivered, mailed, telegraphed, cabled, telexed or telecopied but inclusive of the day for which notice is given) before the date of the meeting; provided that meetings of the directors or of any committee of directors may be held at any time without formal notice if all the directors are present (except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called) or if all the absent directors have waived notice.
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For the first meeting of the board of directors to be held following the election of directors at an annual or special meeting of the shareholders or for a meeting of directors at which a director is appointed to fill a vacancy in the board, no notice of such meeting need be given to the newly elected or appointed director or directors in order for the meeting to be duly constituted, provided a quorum of the directors is present.
13. Waiver of notice
Notice of any meeting of the board of directors or of any committee of directors or any irregularity in any meeting or in the notice thereof may be waived by any director in any manner, and such waiver may be validly given either before or after the meeting to which such waiver relates. Attendance of a director at a meeting of directors is a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
14. Telephone participation
One or more of the directors may participate in any meeting of directors by means of a telephone or other communications facilities that permit all persons participating in the meeting to hear each other, and a director participating in a meeting by those means shall be deemed to be present at that meeting.
15. Adjournment
Any meeting of directors or any committee may be adjourned from time to time by the chairman of the meeting, with the consent of the meeting, to a fixed time and place and no notice of the time and place for the holding of the adjourned meeting need be given to any director if the time and place of the adjourned meeting is announced at the original meeting. Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum is present thereat. The directors who form a quorum at the original meeting are not required to form the quorum at the adjourned meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have terminated forthwith after its adjournment.
16. Quorum and voting
A majority of the number of directors shall constitute a quorum for the transaction of business. Subject to subsection 75(1) of the Act, no business shall be transacted by the directors except at a meeting of directors at which a quorum is present. Questions arising at any meeting of directors shall be decided by a majority of votes. In case of an equality of votes, the chairman of the meeting in addition to his original vote shall not have a second or casting vote.
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17. Written resolution
A resolution in writing signed by all directors or signed counterparts of such resolution by all the directors entitled to vote on that resolution at a meeting of directors or a committee of directors, is as valid as if it had been passed at a meeting of directors or committee of directors duly called, constituted and held.
COMMITTEES OF DIRECTORS AND MANAGING DIRECTOR
18. The directors may from time to time appoint from their number a managing director or one or more committees of directors, and may delegate to such managing director or committees any of the powers of the directors, except that no such managing director or committee shall have the authority to:
(a) |
submit to the shareholders any question or matter requiring the approval of the shareholders; |
(b) |
fill a vacancy among the directors or, if an auditor has been appointed, in the office of auditor; |
(c) |
issue securities except in the manner and on the terms authorized by the directors; |
(d) |
declare dividends; |
(e) |
purchase, redeem or otherwise acquire shares issued by the Corporation; |
(f) |
pay any commission concerning the issue of its shares; |
(g) |
approve any annual financial statements to be placed before the shareholders of the Corporation; or |
(h) |
adopt, amend or repeal by-laws of the Corporation. |
REMUNERATION OF DIRECTORS,
OFFICERS AND EMPLOYEES
19. The remuneration to be paid to the directors, officers and employees of the Corporation shall be such as the directors shall from time to time by resolution determine. The directors may also by resolution award special remuneration to any director in undertaking any special services on the Corporations behalf other than the routine work ordinarily required of a director of the Corporation. The confirmation of any such resolution or resolutions by the shareholders shall not be required. The directors, officers and employees shall also be entitled to be paid their travelling and
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other expenses properly incurred by them in connection with the affairs of the Corporation.
SUBMISSION OF CONTRACTS OR TRANSACTIONS TO
SHAREHOLDERS FOR APPROVAL
20. The directors in their discretion may submit any contract, act or transaction for approval, ratification or confirmation at any annual meeting of the shareholders or at any special meeting of the shareholders called for the purpose of considering the same and any contract, act or transaction that shall be approved, ratified or confirmed by resolution passed by a majority of the votes cast at any such meeting (unless any different or additional requirements are imposed by the Act or by the Corporations articles, or any other by-law) shall be as valid and as binding upon the Corporation and upon all the shareholders as though it had been approved, ratified and/or confirmed by every shareholder of the Corporation.
FOR THE PROTECTION OF DIRECTORS AND OFFICERS
21. No director or officer for the time being of the Corporation shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee or for joining in any receipt or act for conformity or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired by the Corporation or for any security in or upon which any of the moneys of or belonging to the Corporation shall be placed out or invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person, firm or corporation including any person, firm or corporation with whom or which any moneys, securities or effects shall be lodged or deposited or for any loss, conversion, misapplication or misappropriation of or any damage resulting from any dealings with any moneys, securities or other assets belonging to the Corporation or for any other loss, damage or misfortune whatever which may happen in the execution of the duties of his respective office of trust or in relation thereto, unless the same shall happen by or through his failure to exercise the powers and to discharge the duties of his office honestly, in good faith with a view to the best interests of the Corporation, and in connection therewith to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, provided that nothing herein contained shall relieve a director or officer from the duty to act in accordance with the Act or regulations made thereunder or relieve him from liability for a breach thereof. The directors for the time being of the Corporation shall not be under any duty or responsibility in respect of any contract, act or transaction whether or not made, done or entered into in the name or on behalf of the Corporation, except such as shall have been submitted to and authorized or approved by the board of directors. If any director or officer of the Corporation shall be employed by or shall perform services for the Corporation otherwise than as a director or officer or shall be a member of a firm or a shareholder, director or officer of a body corporate which is employed by or performs
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services for the Corporation, the fact of his being a shareholder, director or officer of the Corporation shall not disentitle such director or officer or such firm or body corporate, as the case may be from receiving proper remuneration for services.
INDEMNITIES TO DIRECTORS AND OTHERS
22. Subject to subsections 81(2) and 81(3) of the Act, except in respect to an action by or on behalf of the Corporation or body corporate to procure a judgment in its favour, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation and each person who acts or acted at the Corporations request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of such corporation or body corporate, if:
(a) he acted honestly and in good faith with a view to the best interests of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful.
OFFICERS
23. Appointment of officers
The directors shall annually, or as often as may be required, appoint such one or more officers as may be deemed necessary including, if the directors see fit, a Chairman of the Board, a President, one or more Vice-Presidents, a Secretary, a Treasurer and one or more Assistant Secretaries and/or one or more Assistant Treasurers. None of such officers, except the Chairman of the Board, need be a director of the Corporation. Two or more such offices, except the Chairman of the Board, may be held by the same person. In the case and whenever the same person holds the offices of Secretary and Treasurer he may but need not be known as the Secretary-Treasurer. The directors may from time to time appoint such other officers, employees and agents as they shall deem necessary who shall have authority and shall perform such functions and duties, as may from time to time be prescribed by resolution of the board of directors.
24. Removal of officers, etc
All officers, employees and agents, in the absence of agreement to the contrary, shall be subject to removal by resolution of the directors at any time, with or without
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cause.
25. Duties of officers may be delegated
In case of the absence or inability or refusal to act of any officer of the Corporation or for any other reason that the directors may deem sufficient, the directors may delegate all or any of the powers of such officer of the Corporation to any other officer or to any director for the time being.
26. Chairman of the Board
The Chairman of the Board shall, if present, preside at all meetings of the board of directors and at all meetings of shareholders. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and duties as may from time to time be assigned to him by the directors.
27. President
The President shall be the chief executive officer of the Corporation and shall exercise general supervision over the business and affairs of the Corporation. In the absence of the Chairman of the Board (if any), and if the President is also a director of the Corporation, the President shall, when present, preside at all meetings of the directors, any committee of the directors and shareholders; he shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and shall perform such other duties as may from time to time be assigned to him by resolution of the directors or as are incident to his office.
28. Vice-President
The Vice-President or, if more than one, the Vice-Presidents in order of seniority, shall be vested with all the powers and shall perform all the duties of the President in the absence or inability or refusal to act of the President, provided, however, that a Vice-President who is not a director shall not preside as chairman at any meeting of directors or shareholders. The Vice-President or, if more than one, the Vice-Presidents in order of seniority, shall sign such contracts, documents or instruments in writing as require his or their signatures and shall also have such other powers and duties as may from time to time be assigned to him or them by resolution of the directors.
29. Secretary
The Secretary shall give or cause to be given notices for all meetings of the directors, any committees of the directors and shareholders when directed to do so and shall have charge of the minute books of the Corporation and (subject to the appointment by the Corporation of an agent to maintain securities registers), of the documents and registers referred to below. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and
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duties as may from time to time be assigned to him by resolution of the directors or as are incident to his office.
The Secretary (if one is appointed) or the President shall prepare and maintain records containing the following documents:
(a) |
a copy of the articles and amendments thereto; |
(b) |
a copy of the by-laws and amendments thereto; |
(c) |
a copy of any unanimous shareholder agreement; |
(d) |
minutes of all shareholders meetings and resolutions; |
(e) |
copies of all notices of directors, and notices of change of directors; |
(f) |
a share register (subject to section 51 of the Act concerning bearer share warrants authorized by the articles) containing the following: |
(i) |
the names alphabetically arranged and the last known address of every past and present shareholder, |
(ii) |
the number and class or series of shares held by each shareholder, and |
(iii) |
the date and particulars of issue and transfer of each share, and |
(g) |
the names and addresses of all persons who are or have been directors of the Corporation with the dates at which each became or ceased to be a director. |
30. Treasurer
Subject to the provisions of any resolution of the directors, the Treasurer shall have the care and custody of all the funds and securities of the Corporation and shall deposit the same in the name of the Corporation in such bank or banks or with such other depository or depositories as the directors may by resolution direct. He shall prepare and maintain adequate accounting records. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and duties as may from time to time be assigned to him by resolution of the directors or as are incident to his office. He may be required to give such bond for the faithful performance of his duties as the directors in their uncontrolled discretion may require and no director shall be liable for failure to require any such bond or for the insufficiency of any such bond or for any loss by reason of the failure of the Corporation to receive any indemnity thereby provided.
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31. Assistant Secretary and Assistant Treasurer
The Assistant Secretary or, if more than one, the Assistant Secretaries in order of seniority, and the Assistant Treasurer or, if more than one, the Assistant Treasurers in order of seniority, shall perform all the duties of the Secretary and Treasurer, respectively, in the absence or inability to act of the Secretary or Treasurer as the case may be. The Assistant Secretary or Assistant Secretaries, if more than one, and the Assistant Treasurer or Assistant Treasurers, if more than one, shall sign such contracts, documents or instruments in writing as require his or their signatures respectively and shall have such other powers and duties as may from time to time be assigned to them by resolution of the directors;
32. Vacancies
If the office of President, Vice-President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or any other office created by the directors pursuant to paragraph 23 hereof shall be or become vacant by reason of death, resignation or in any other manner whatsoever, the directors shall in the case of the President and may in the case of the other offices appoint an officer to fill such vacancy.
SHAREHOLDERS MEETING
33. Annual Meeting
Subject to subsection 95 of the Act, the annual meeting of the shareholders shall be held on such day in each year and at such time as the directors may agree upon provided that an annual meeting of the shareholders shall be held not later than 18 months after the date of incorporation or amalgamation (if the Corporation has, subsequent to its incorporation, undergone a statutory amalgamation) and subsequent annual meetings shall be held not later than 15 months after holding the last preceding annual meeting. If the directors have not determined a fixed date each year for the annual meeting and the annual meeting has not been held within the time limits prescribed any officer or director may convene an annual meeting.
34. Special Meetings
A special meeting of the shareholders may be convened by the President or any two directors at any date and time.
35. Place of Meetings
Meetings of the shareholders may be held at any place within or outside Canada permitted by the articles as is specified in the notice calling the meeting.
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36. Notice
A printed, written or typewritten notice stating the day, hour and place of meeting and, if special business is to be transacted thereat, stating (i) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon, and (ii) the text of any special resolution to be submitted to the meeting, shall be served either by delivering such notice personally to or by sending such notice to each person who is entitled to notice of such meeting and who on the record date for notice appears on the records of the Corporation or its transfer agent as a shareholder and to each director of the Corporation and the auditor, if any, of the Corporation by prepaid mail not less than 21 days and not more than 50 days (exclusive of the day of mailing and inclusive of the day for which notice is given) before the date of every meeting addressed to the latest address of each such person as shown in the records of the Corporation or its transfer agent, or if no address is shown therein, then to the last address of each such person known to the Secretary, if any, or the President provided that a meeting of shareholders may be held for any purpose at any date and time and at any place without notice if all the shareholders entitled to notice of such meeting are present in person or represented by proxy at the meeting (except where the shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called) or if all the shareholders entitled to notice of such meeting and not present in person nor represented by proxy thereat waive notice of the meeting. Notice of any meeting of shareholders or the time for the giving of any such notice or any irregularity in any such meeting or in the notice thereof may be waived by any shareholder, the duly appointed proxy of any shareholder, any director or the auditor of the Corporation in any manner and any such waiver may be validly given either before or after the meeting to which such waiver relates.
The auditor of the Corporation is entitled to attend any meeting of shareholders of the Corporation and to receive all notices and other communications relating to any such meeting that a shareholder is entitled to receive.
The accidental omission to give notice of any meeting to or the non-receipt of any notice by any person shall not invalidate any resolution passed or any proceeding taken at any meeting of shareholders.
37. Record dates
The directors may fix in advance a date as the record date for the determination of shareholders (i) entitled to receive payment of a dividend, (ii) for any other purpose except the right to receive notice of or to vote at a meeting of shareholders, but such record date shall not precede by more than 50 days the particular action to be taken.
The directors may also fix in advance the date as the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders, but such record date shall not precede by more than 50 days or by less than 21 days the date on which the meeting is to be held.
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If no record date is fixed,
(a) the record date for the determination of the shareholders entitled to receive notice of a meeting of the shareholders shall be
(i) |
at the close of business on the day immediately preceding the day on which the notice is given; or |
(ii) |
if no notice is given, the day on which the meeting is held; and |
(b) the record date for the determination of shareholders for any purpose, other than that specified in subparagraph (a) above or to vote, shall be at the close of business on the day on which the directors pass the resolution relating thereto.
38. Voting
Every question submitted to any meeting of shareholders shall be decided in the first instance on a show of hands and in case of an equality of votes the chairman of the meeting shall not have a second or casting vote in addition to the vote or votes to which he may be entitled as a shareholder or proxy nominee.
At any meeting, unless a poll is demanded by a shareholder or proxyholder entitled to vote at the meeting, either before or after any vote by a show of hands, a declaration by the chairman of the meeting that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against the motion.
In the absence of the Chairman of the Board (if any), the President and Vice-President who is a director, the shareholders present entitled to vote shall choose another director as chairman of the meeting and if no director is present or if all the directors present decline to take the chair then the shareholders present shall choose one of their number to be chairman.
If at any meeting a poll is demanded on the election of a chairman or on the question of adjournment or termination, the poll shall be taken forthwith without adjournment. If a poll is demanded on any other questions or as to the election of directors, the poll shall be taken by ballot in such manner and either at once or later at the meeting or after adjournment as the chairman of the meeting directs. The result of a poll shall be deemed to be the resolution of the meeting at which the poll was demanded. A demand for a poll may be withdrawn.
Where a person holds shares as a personal representative, such person or his proxy is the person entitled to vote at all meetings of shareholders in respect of the shares so held by him.
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Where a person mortgages, pledges or hypothecates his shares, such person or his proxy is the person entitled to vote at all meetings of shareholders in respect of such shares so long as such person remains the registered owner of such shares.
Where two or more persons hold the same share or shares jointly, any one of such persons present at a meeting of shareholders has the right, in the absence of the other or others, to vote in respect of such share or shares, but if more than one of such persons are present or represented by proxy and vote, they shall vote together as one on the share or shares jointly held by them.
39. Proxies
Votes at meetings of the shareholders may be given either personally or by proxy. At every meeting at which he is entitled to vote, every shareholder present in person and every proxyholder shall have one (1) vote on a show of hands. Upon a poll at which he is entitled to vote, every shareholder present in person or by proxy shall (subject to the provisions, if any, of the Corporations articles) have one (1) vote for every share registered in his name.
Every shareholder, including a shareholder that is a body corporate, entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders, who need not be a shareholder, to attend and act at the meeting in the place and stead of the shareholder except to the extent limited by proxy.
An instrument appointing a proxy shall be in writing and executed by a shareholder or his attorney authorized in writing and is valid only at the meeting in respect of which it is given or at any adjournment thereof.
An instrument appointing a proxyholder may be in the following form or in any other form that complies with the requirements of the Act:
The undersigned shareholder of hereby appoints of , whom failing, of as the nominee of the undersigned to attend, vote and act for and on behalf of the undersigned at the meeting of the shareholders of the said Corporation to be held on the day of , 19 , and at any adjournment thereof in the same manner, to the same extent and with the same power as if the undersigned were personally present at the said meeting or such adjournment thereof.
DATED the day of , 19 .
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|
||||
Signature of Shareholder |
This form of proxy must be signed by a shareholder or his attorney authorized in writing.
The directors may from time to time pass regulations regarding the lodging of instruments appointing a proxyholder at some place or places other than the place at which a meeting or adjourned meeting of shareholders is to be held and for particulars of such instruments to be telegraphed, cabled, telexed or sent in writing before the meeting or adjourned meeting to the Corporation or any agent of the Corporation appointed for the purpose of receiving such particulars and providing that instrument appointing a proxyholder so lodged may be voted upon as though the instruments themselves were produced at the meeting or adjourned meeting and votes given in accordance with such regulations shall be valid and shall be counted. However, if the directors specify in the notice calling a shareholders meeting a time preceding the meeting or adjournment thereof before which time proxies to be used at the meeting must be deposited with the Corporation or its agent the time so specified shall not exceed 48 hours, excluding Saturday and holidays preceding the meeting. The chairman of the meeting of shareholders may, subject to any regulations made as aforesaid, in his discretion accept telegraphic, telex, cable or written communication as to the authority of anyone claiming to vote on behalf of and to represent a shareholder notwithstanding that no instrument of proxy conferring such authority has been lodged with the Corporation, and any votes given in accordance with such telegraphic, telex, cable or written communication accepted by the chairman of the meeting shall be valid and shall be counted.
40. Telephone Meetings
A shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of telephone or other communications facility that permits all persons participating in the meeting to hear each other and a person participating in such a meeting by those means shall be deemed to be present at the meeting.
41. Adjournment
The chairman of the meeting may with the consent of the meeting adjourn any meeting of shareholders from time to time to a fixed time and place and if the meeting is adjourned for less than sixty (60) days no notice of the time and place for the holding of the adjourned meeting need by given to any shareholder, other than by announcement at the earliest meeting that is adjourned by one or more adjournments for an aggregate of sixty (60) days or more, notice of the adjourned meeting shall be given as for an original meeting. Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum is present thereat. The persons who
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formed a quorum at the original meeting are not required to form the quorum at the adjourned meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have terminated forthwith after its adjournment. Any business may be brought before or dealt with at any adjourned meeting which might have been brought before or dealt with at the original meeting in accordance with the notice calling the same.
42. Quorum
Two (2) persons present and each holding or representing by proxy at least one (1) issued share of the Corporation shall be a quorum of any meeting of shareholders for the choice of a chairman of the meeting and for the adjournment of the meeting to a fixed time and place but may not transact any other business; for all other purposes a quorum for any meeting shall be persons present not being less than two (2) in number and holding or representing by proxy not less than fifty-one per cent (51%) of the total number of the issued shares of the Corporation for the time being enjoying voting rights at such meeting. If a quorum is present at the opening of a meeting of shareholders, the shareholders present may proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting.
Notwithstanding the foregoing, if a Corporation has only one shareholder, or only one shareholder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting and a quorum for such meeting.
43. Written Resolution
A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of the shareholders is as valid as if it had been passed at a meeting of the shareholders whether an annual or a special meeting.
SHARES AND TRANSFERS
44. Issuance
Subject to the articles of the Corporation, any unanimous shareholder agreement and to section 27 of the Act (pre-emptive right) shares in the Corporation may be issued at such time and issued to such persons and for such consideration as the directors may determine.
45. Share certificates
Share certificates (and the form of transfer power on the reverse side thereof) shall (subject to compliance with section 47 of the Act) be in such form as the directors may from time to time by resolution approve and such certificates shall be signed manually by at least one director or officer of the Corporation or by or on behalf of a
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registrar, transfer agent or branch transfer agent of the Corporation, and any additional signatures required on a share certificate may be printed or otherwise mechanically reproduced thereon. If a share certificate contains a printed or mechanically reproduced signature of a person, notwithstanding any change in the persons holding an office between the time of actual signing and the issuance of any certificate and notwithstanding that a person signing may not have held office at the date of issuance of such certificate, any such certificate so signed shall be valid and binding upon the Corporation.
46. Agent
The directors may from time to time by resolution appoint or remove an agent to maintain a central share register and branch share registers for the Corporation.
47. Surrender of share certificates
Subject to the Act, no transfer of a share issued by the Corporation shall be recorded or registered unless or until the share certificate representing the share to be transferred has been surrendered and cancelled or, if no certificate has been issued by the Corporation in respect of such share, unless or until a duly executed share transfer power in respect thereof has been presented for registration.
48. Defaced, destroyed, stolen or lost share certificates
In case of the defacement, destruction, theft or loss of a share certificate, the fact of such defacement, destruction, theft or loss shall be reported by the owner to the Corporation or to an agent of the Corporation (if any), on behalf of the Corporation, with a statement verified by oath or statutory declaration as to the defacement, destruction, theft or loss and the circumstances concerning the same and with a request for the issuance of a new share certificate to replace the one so defaced, destroyed, stolen or lost. Upon the giving to the Corporation (or, if there be an agent, hereinafter in this paragraph referred to as the Corporations agent, then to the Corporation and the Corporations agent) of a bond of a surety company (or other security approved by the directors) in such form as is approved by the directors or by the Chairman of the Board (if any), the President, a Vice-President, the Secretary or the Treasurer of the Corporation, indemnifying the Corporation (and the Corporations agent if any), against all loss, damage or expense, that the Corporation and\or the Corporations agent may suffer or be liable for by reason of the issuance of a new share certificate to such shareholder, and provided the Corporation or the Corporations agent does not have notice that the share has been acquired by a bona fide purchaser, a new share certificate may be issued in replacement of the one defaced, destroyed, stolen or lost, if such issuance is ordered and authorized by any one of the Chairman of the Board (if any), the President, a Vice-President, the Secretary or the Treasurer of the Corporation or by resolution of the directors.
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DIVIDENDS
49. The Directors may from time to time by resolution declare and the Corporation may pay dividends on its issued shares, subject to the provisions (if any) of the Corporations articles unless there are reasonable grounds for believing that,
(a) the Corporation is, or would after the payment be, unable to pay its liabilities as they become due; or
(b) the realizable value of the Corporations assets would thereby be less than the aggregate of its liabilities and stated capital of all classes.
Subject to the foregoing, the Corporation may pay a dividend in money or property or by issuing fully paid shares of the Corporation.
50. Joint holders of securities
In case several persons are registered as the joint holders of any securities of the Corporation, any one of such persons may give effectual receipts for all dividends and payments on account of dividends, principal, interest and/or redemption payments on redemption of securities (if any) subject to redemption in respect of such securities.
VOTING SECURITIES IN OTHER BODIES CORPORATE
51. All securities of any other body corporate carrying voting rights held from time to time by the Corporation may be voted at all meetings of shareholders, bondholders, debenture holders or holders of such securities, as the case may be, of such other body corporate and in such manner and by such person or persons as the directors of the Corporation shall from time to time determine and authorize by resolution. The duly authorized signing officers of the Corporation may also from time to time execute and deliver for and on behalf of the Corporation proxies and/or arrange for the issuance of voting certificates and/or other evidence of the right to vote in such names as they may determine without the necessity of a resolution or other action by the directors.
NOTICES, ETC
52. Service
Any notice or other document required to be given or sent by the Corporation to any shareholder, director or auditor of the Corporation shall be delivered personally or sent by prepaid mail or by telegram, telex or cablegram addressed to:
(a) the shareholder at his latest address as shown on the records of the Corporation or its transfer agent; and
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(b) the director at his latest address as shown in the records of the Corporation or in the last notice filed under section 64 or 71 of the Act.
With respect to every notice or document sent by prepaid mail it shall be sufficient to prove that the envelope or wrapper containing the notice or other document was properly addressed and put into a post office or into a post office letter box.
53. Returned notices
If the Corporation sends a notice or document to a shareholder and the notice or document is returned on three consecutive occasions because the shareholder cannot be found, the Corporation is not required to send any further notices or documents to the shareholder until he informs the Corporation in writing of his new address.
54. Shares registered in more than one name
All notices or other documents shall, with respect to any shares in the capital of the Corporation registered in more than one name, be given to whichever of such persons is named first in the records of the Corporation and any notice or other document so given shall be sufficient notice or delivery of such document to all the holders of such shares.
55. Persons becoming entitled by operation of law
Every person who by operation of law, transfer or by any other means whatsoever shall become entitled to any shares in the capital of the Corporation shall be bound by every notice or other document in respect of such shares which prior to his name and address being entered on the records of the Corporation shall have been duly given to the person or persons from whom he derives his title to such shares.
56. Deceased shareholder
Any notice or other document delivered or sent by post or left at the address of any shareholder as the same appears in the records of the Corporation shall, notwithstanding that such shareholder be then deceased and whether or not the Corporation has notice of his decease, be deemed to have been duly served in respect of the shares held by such shareholder (whether held solely or with other persons) until some other person be entered in his stead in the records of the Corporation as the holder or one of the holders thereof and such service shall for all purposes be deemed a sufficient service of such notice or other document on his heirs, executors or administrators and all persons (if any) interested with him in such shares.
57. Signature of notices
The signature of any director or officer of the Corporation to any notice may be
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written, stamped, typewritten, printed or otherwise mechanically reproduced.
58. Computation of time
Where a given number of days notice or notice extending over any period is required to be given under any provisions of the articles or by-laws of the Corporation, the day of service or posting of the notice shall, unless it is otherwise provided, be counted in such number of days or other period and such notice shall be deemed to have been given or sent on the day of service or posting.
59. Proof of service
A certificate of any officer of the Corporation in office at the time of the making of the certificate or of an agent of the Corporation as to facts in relation to the mailing or delivery or service of any notice or other documents to any shareholder, director, officer or auditor or publication of any notice or other document shall be conclusive evidence thereof and shall be binding on every shareholder, director, officer or auditor of the Corporation, as the case may be.
CHEQUES, DRAFTS, NOTES, ETC.
60. All cheques, drafts or orders for the payment of money and all notices, acceptances and bills of exchange shall be signed by such officer or officers or other person or persons, whether or not officers of the Corporation, and in such manner as the directors may from time to time designate by resolution.
CUSTODY OF SECURITIES
61. All securities (including warrants) owned by the Corporation shall be lodged (in the name of the Corporation) with a chartered bank or a trust company or in a safety deposit box or, if so authorized by resolution of the directors, with such other depositories or in such other manner as may be determined from time to time by the directors.
All securities (including warrants) belonging to the Corporation may be issued and held in the name of a nominee or nominees of the Corporation (and if issued or held in the names of more than one nominee shall be held in the names of the nominees jointly with right of survivorship) and shall be endorsed in blank with the endorsement guaranteed in order to enable transfer thereof to be completed and registration thereof to be effected.
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EXECUTION OF CONTRACTS, ETC.
62. Contracts, documents or instruments in writing requiring the signature of the Corporation may be signed by any two directors and/or officers of the Corporation and all contracts, documents or instruments in writing so signed shall be binding upon the Corporation without any further authorization or formality. The directors are authorized from time to time by resolution to appoint any officer or officers or any other person on behalf of the Corporation either to sign contracts, documents or instruments in writing generally or to sign specific contracts, documents or instruments in writing.
The corporate seal of the Corporation may, when required, be affixed to contracts, documents or instruments in writing signed as aforesaid or by an officer or officers, person or persons appointed as aforesaid by resolution of the board of directors.
The term contracts, documents, or instruments in writing as used in this bylaw shall include deeds, mortgages, hypothecs, charges, conveyances, transfers and assignments of property, real or personal, immovable or movable, agreements, releases, receipts and discharges for the payment of money or other obligations, conveyances, transfers and assignments of securities and all paper writings.
In particular, without limiting the generality of the foregoing, the President alone is authorized to sell, assign, transfer, exchange, convert or convey all securities owned by or registered in the name of the Corporation and to sign and execute (under the seal of the Corporation or otherwise) all assignments, transfers, conveyances, powers of attorney and other instruments that may be necessary for the purpose of selling, assigning, transferring, exchanging, converting or conveying any such securities.
The signature or signatures of any such officer or director of the Corporation and/or of any other officer or officers, person or persons appointed as aforesaid by resolution of the directors may, if specifically authorized by resolution of the directors, be printed, engraved, lithographed or otherwise mechanically reproduced upon all contracts, documents or instruments in writing or bonds, debentures or other securities of the Corporation executed or issued by or on behalf of the Corporation and all contracts, documents or instruments in writing or securities of the Corporation on which the signature or signatures of any of the foregoing officers, directors or persons shall be so reproduced, by authorization by resolution of the directors, shall be deemed to have been manually signed by such officers, directors or persons whose signature or signatures is or are so reproduced and shall be as valid to all intents and purposes as if they had been signed manually and notwithstanding that the officers, directors or persons whose signature or signatures is or are so reproduced may have ceased to hold office at the date of delivery or issue of such. contracts, documents or instruments in writing or securities of the Corporation.
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ENFORCEMENT OF LIEN FOR INDEBTEDNESS
63. Subject to subsection 47(8) of the Act, if the articles of the Corporation provide that the Corporation has a lien on a share registered in the name of a shareholder or his legal representative for a debt of that shareholder to the Corporation, the directors of the Corporation may refuse to permit the registration of a transfer of any such share or shares until the debt has been paid in full.
FINANCIAL YEAR
64. The financial year of the Corporation shall terminate on such day in each year as the board of directors may from time to time by resolution determine, and until so determined shall terminate on the last day of the fiscal period selected for the purposes of the Income Tax Act (Canada).
AUDITORS AND FINANCIAL STATEMENTS
65. The shareholders of the Corporation may by ordinary resolution appoint an auditor who shall hold office until the next succeeding annual meeting or until his successor is elected or appointed unless a resolution is passed not to appoint an auditor for the ensuing year. Subject to section 104 of the Act, the auditor shall be a person who is independent of the Corporation, its affiliates, directors and officers.
66. The directors of the Corporation shall place before the annual meeting comparative financial statements prepared in accordance with generally accepted accounting principles and relating separately to (i) the period between the date of incorporation and a date not more than 6 months prior to the annual meeting or, if a financial year has been completed, the period between the end of such financial year and a date not more than 6 months prior to the annual meeting, and (ii) the immediately preceding financial year, together with the report of the auditor, if any has been appointed. A copy of the above-mentioned financial statements shall be sent to every shareholder (other than a shareholder who has informed the Corporation in writing that he does not want a copy) not less than 21 days before the annual meeting or such shorter period before the meeting as may be agreed by the shareholders.
LOANS TO SHAREHOLDERS AND OTHERS
67. The corporation may give financial assistance by means of a loan, guarantee or otherwise:
(a) to any person on account of expenditures incurred on behalf of the Corporation;
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(b) to a holding body corporate if the Corporation is a wholly-owned subsidiary of the borrower or recipient of financial assistance;
(c) to a subsidiary of the Corporation;
(d) to or for the benefit of employees of the Corporation or any of its affiliates;
(i) |
to enable or assist them to purchase or erect houses for their own occupation; and |
(ii) |
in accordance with a plan for the purchase of shares of the Corporation or any of its affiliates by a trustee; and |
(e) subject to subsections 43(1) and 43(2) of the Act (which prohibit loans secured by a share of the Corporation and financial assistance in connection with shares issued or to be issued by the Corporation):
(i) |
to any shareholder, director, officer or employee of the Corporation or its affiliates, or |
(ii) |
to any associate of a person named in subparagraph (i) above. |
WITNESS the corporate seal of the Corporation.
ENACTED the 6th day of November, 1995.
Sarbjit S. Basra | Beverley D. Liske | |||
|
C.S. |
| ||
President | Secretary | |||
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501109 N.B. LTD.
BY-LAW NO. 2
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of 501109 N.B. LTD. (hereinafter called the Corporation) as follows:
1. The directors may and they are hereby authorized from time to time to
(a) |
borrow money upon the credit of the Corporation; |
(b) |
limit or increase the amount to be borrowed; |
(c) |
issue, reissue, sell or pledge bonds, debentures, notes or other securities or debt obligations of the Corporation; |
(d) |
issue, sell or pledge such bonds, debentures, notes or other securities or debt obligations for such sums and at such prices as may be deemed expedient; and |
(e) |
mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the Corporation, and the undertaking and rights of the Corporation to secure any such bonds, debentures, notes or other securities or debt obligations, or to secure any present or future borrowing, liability or obligation of the Corporation. |
2. The directors may from time to time by resolution delegate to the Chairman of the Board of Directors or the President together with the Secretary or to any two directors of the Corporation all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
3. The powers hereby conferred shall be deemed to be in supplement of and not in substitution for any powers to borrow money for the purposes of the Corporation possessed by its directors or officers independently of a borrowing by-law.
ENACTED the 6th day of November, 1995.
WITNESS the corporate seal of the Corporation.
Sarbjit S. Basra | Beverley D. Liske | |||
|
C.S. |
| ||
President | Secretary | |||
501109 N.B. LTD.
CANADIAN IMPERIAL BANK OF COMMERCE
BY-LAW NO. 3
A By-Law respecting the borrowing of money, the issuing of securities and the securing of liabilities by 501109 N.B. LTD. (the Company).
BE IT ENACTED as a By-Law of the Company as follows:
The directors of the Company may from time to time
(a) |
borrow money or otherwise obtain credit upon the credit of the Company in such amounts and upon such terms as may be considered advisable; |
(b) |
issue, reissue, sell or pledge debt obligations of the Company, including without limitation, bonds, debentures, debenture stock, notes or other securities or obligations of the Company, whether secured or unsecured for such sums, upons such terms, covenants and conditions and at such prices as may be deemed expedient; |
(c) |
charge, mortgage, hypothecate, pledge, assign, transfer or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable property of the Company, including without limitation, book debts and unpaid calls, rights, powers, franchises and undertaking, to secure any money borrowed or any other debt or liability of the Company; |
(d) |
delegate to such one or more of the officers and directors of the Company as may be designated by the directors all or any of the powers conferred by the foregoing clauses of this By-Law to such extent and in such manner as the directors shall determine at the time of each delegation. |
PASSED by the directors and sealed with the Companys seal this 6th day of November, 1995.
Sarbjit S. Basra | Beverley D. Liske | |||
|
C.S. |
| ||
President | Secretary | |||
501109 N.B. LTD.
The undersigned, being the sole shareholder of 501109 N.B. LTD., pursuant to subsection 95(1) of the Business Corporations Act (New Brunswick) hereby passes the following resolution:
Amendment to By-Law No. 1
WHEREAS the articles of the Corporation provide for a minimum of 1 and a maximum of 10 directors of the Corporation;
AND WHEREAS it is considered necessary and expedient in the interests of the Corporation to amend By-Law No. 1 as hereinafter provided;
NOW THEREFORE BE IT RESOLVED THAT
Paragraph 4 of By-Law No. 1 of the Corporation be amended by deleting the first sentence thereof and substituting the following in its place:
There shall be a board of directors consisting of two (2) directors.
Exhibit T3D.1
Court File No. CV-20-636938-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE MADAM |
) | WEDNESDAY, THE 26TH | ||
JUSTICE CONWAY |
) | DAY OF FEBRUARY, 2020 | ||
) |
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD., AND INVOLVING SHERRITT INTERNATIONAL OIL AND GAS LIMITED, SHERRITT INTERNATIONAL (BAHAMAS) INC., SHERRITT POWER (BAHAMAS) INC., SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED, SHERRITT UTILITIES INC., CANADA NORTHWEST OILS (EUROPE) B.V., CNWL OIL (ESPANA) S.A., AND MADAGASCAR MINERAL INVESTMENTS LTD.
INTERIM ORDER
THIS MOTION made by Sherritt International Corporation (Sherritt or the Company) and 11722573 Canada Ltd. (together with Sherritt, the Applicants) for an interim order for advice and directions pursuant to Section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the CBCA) was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the Notice of Motion, the Notice of Application, the affidavit of Andrew Snowden sworn February 25, 2020 (the Snowden Affidavit), including the plan of arrangement (the Plan of Arrangement) substantially in the form attached as Appendix C to the Companys draft management information circular (the Information Circular) which is
attached as Exhibit A" to the Snowden Affidavit, and on hearing the submissions of counsel for the Applicants, and on being advised that the Director appointed under the CBCA (the Director) does not consider it necessary to appear.
Definitions
1. THIS COURT ORDERS that capitalized terms used and not specifically defined herein shall have the meanings ascribed to them in the Information Circular or the Plan of Arrangement, as applicable.
Service
2. THIS COURT ORDERS that the requirement for service of the Notice of Motion is hereby dispensed with and that this Motion is properly returnable today.
The Meetings
3. THIS COURT ORDERS that the Applicants are permitted to call, hold and conduct a separate meeting for each of (i) the Debtholders and (ii) the Shareholders, in each case to be held at the offices of Goodmans LLP, 333 Bay Street, Suite 3400, Toronto, Ontario, as follows:
a) | the meeting of the Debtholders as of the Record Date (as defined below) (the Debtholders Meeting) shall be held at 10:00 a.m. (Toronto time) on April 9, 2020, or such later date as may be determined by the Applicants, in order for the Debtholders to consider and, if determined advisable, pass a resolution authorizing, adopting and approving, with or without variation, the Arrangement and the Plan of Arrangement (the Debtholders Arrangement Resolution); and |
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b) | the meeting of the Shareholders as of the Record Date (the Shareholders Meeting, and together with the Debtholders Meeting, the Meetings) shall be held at 10:30 a.m. (Toronto time) on April 9, 2020, or such later date as may be determined by the Applicants, in order for the Shareholders to consider and, if determined advisable, pass a resolution authorizing, adopting and approving, with or without variation the Stated Capital Reduction (the Stated Capital Reduction Resolution, and together with the Debtholders Arrangement Resolution, the Resolutions). |
4. THIS COURT ORDERS that the Meetings shall be called, held and conducted in accordance with the CBCA, the rulings and directions of the Chair, this Interim Order and the applicable notices of the Meetings which accompany the Information Circular (the Notices of Meetings), subject to what may be provided hereafter (including, without limitation, paragraph 9 of this Interim Order) and subject to further order of this Court.
5. THIS COURT ORDERS that the record date (the Record Date) for determination of Debtholders and Shareholders entitled to notice of, and to vote at, the Meetings, shall be 5:00 p.m. (Toronto time) on the date that is set forth in the Applicants notice of record date published in The Globe and Mail, The National Post or other similar newspaper (the Record Date Notice), which Record Date shall be at least seven days following publication by (or on behalf of) the Applicants of the Record Date Notice.
6. THIS COURT ORDERS that the only persons entitled to attend or speak at the Debtholders Meeting shall be:
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a) | the Debtholders as of the Record Date, or their respective proxyholders, and their respective legal counsel; |
b) | the officers, directors, auditors and advisors of the Applicants; |
c) | the Existing Indenture Trustee and its legal counsel; |
d) | the Director; and |
e) | other persons who may receive the permission of the Chair of the Debtholders Meeting. |
7. THIS COURT ORDERS that the only persons entitled to attend or speak at the Shareholders Meeting shall be:
a) | the Shareholders as of the Record Date, or their respective proxyholders, and their respective legal counsel; |
b) | the officers, directors, auditors and advisors of the Applicants; |
c) | the Director; and |
d) | other persons who may receive the permission of the Chair of the Shareholders Meeting. |
8. THIS COURT ORDERS that the Applicants may transact such other business at the Meetings as is contemplated in the Information Circular, or as may otherwise be properly brought before the Meetings.
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Chair and Quorum
9. THIS COURT ORDERS that the Chair of each of the Meetings shall be determined by the Applicants and that quorum at each of the Debtholders Meeting and the Shareholders Meeting shall be satisfied if two or more persons entitled to vote at such Debtholders Meeting or Shareholders Meeting, respectively, are present, in person or represented by proxy, at the outset of such Debtholders Meeting or Shareholders Meeting, respectively.
Amendments to the Arrangement and Plan of Arrangement
10. THIS COURT ORDERS that the Applicants are authorized to make, subject to the terms of paragraph 11 below and the Plan of Arrangement, such amendments, modifications and/or supplements to the Arrangement and the Plan of Arrangement as they may determine without any additional notice to the Debtholders, or others entitled to receive notice under paragraph 15 hereof, and the Arrangement and Plan of Arrangement, as so amended, modified and/or supplemented shall be the Arrangement and Plan of Arrangement to be submitted to the Debtholders at the Debtholders Meeting and shall be the subject of the Debtholders Arrangement Resolution. Amendments, modifications and/or supplements to the Arrangement and Plan of Arrangement may be made following the Debtholders Meeting, but shall be subject to the terms of the Plan of Arrangement and, if appropriate, further direction by this Court at the hearing for the final order approving the Arrangement (the Final Order).
11. THIS COURT ORDERS that, if any amendments, modifications and/or supplements to the Arrangement or Plan of Arrangement prior to the Debtholders Meeting as referred to in paragraph 10 above, would, if disclosed, reasonably be expected to affect a Debtholders decision to vote for or against the Debtholders Arrangement Resolution, notice of such amendment,
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modification and/or supplement shall be distributed prior to the Debtholders Meeting by press release, newspaper advertisement, prepaid ordinary mail, e-mail or by the method most reasonably practicable in the circumstances, as the Applicants may determine, and that the Applicants shall provide notice of such amendment, modification and/or supplement to the Existing Indenture Trustee by the method most reasonably practicable in the circumstances as the Applicants may determine.
Amendments to the Information Circular
12. THIS COURT ORDERS that the Applicants are authorized to make such amendments, revisions and/or supplements to the draft Information Circular as they may determine and the Information Circular, as so amended, revised and/or supplemented, shall be the Information Circular to be distributed in accordance with paragraphs 15 and 21 hereof.
Adjournments and Postponements
13. THIS COURT ORDERS that the Applicants are authorized, if they deem advisable, to adjourn or postpone one or both of the Meetings on one or more occasions, without the necessity of first convening such Meetings or first obtaining any vote of the Debtholders or Shareholders, as applicable, respecting the adjournment or postponement, and notice of any such adjournment or postponement shall be given by such method as the Applicants may determine is appropriate in the circumstances. This provision shall not limit the authority of the Chair in respect of adjournments or postponements of the Meetings.
14. THIS COURT ORDERS that any adjournment or postponement of one or both of the Meetings shall not have the effect of modifying the Record Date for persons entitled to receive
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notice of or vote at such Meetings. At any subsequent reconvening of an adjourned or postponed Meeting, all proxies will be voted in the same manner as the proxies would have been voted at the original convened Meeting, except for any proxies that have been effectively revoked or withdrawn prior to the subsequent reconvening of such adjourned or postponed Meeting.
Notice of Debtholders Meeting and Debtholder Solicitation Process
15. THIS COURT ORDERS that, to effect notice of the Debtholders Meeting, the Applicants shall send the Information Circular (including the applicable Notice of Meeting, the Notice of Application and this Interim Order), as well as:
a) | for Noteholders, a Noteholder voting information and election form (including any electronic version thereof for use by its Intermediary (as defined below)) (the Noteholder VIEF) (collectively with the Information Circular, and together with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order, the Noteholder Meeting Package), which Noteholder VIEF shall provide instructions for how a beneficial Noteholder can instruct its Intermediary as to how to vote its Existing Notes at the Debtholders Meeting (the Noteholder Instructions); and |
b) | for CFA Lenders, a CFA Lender proxy, voting and election form (the CFA Lender Voting and Election Form) (collectively with the Information Circular, and together with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the Willis of this Interim Order, the CFA Lender Meeting Package, and together with the |
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Noteholder Meeting Package, the Debtholder Meeting Packages), which CFA Lender Voting and Election Form shall provide instructions for how a CFA Lender can instruct Sherritt (or its agents) as to how it wishes to vote its CFA Loans at the Debtholders Meeting and the CFA Lender Election (as defined below) it wishes to make (the CFA Lender Instructions), |
in each case to Kingsdale Advisors (the Proxy, Information and Exchange Agent) for distribution, as applicable, in accordance with this Interim Order. For the avoidance of doubt, all Debtholder Meeting Packages and all other communications or documents to be sent pursuant to this Interim Order shall be distributed by or on behalf of the Applicants.
16. THIS COURT ORDERS that, as soon as practicable after the Record Date, the Existing Indenture Trustee shall request, and promptly upon receipt shall provide, or cause to be provided, to the Applicants and the Proxy, Information and Exchange Agent a list (or lists) showing the names and addresses of all persons who are participants (each, an Intermediary) holding Existing Notes in the clearing, settlement and depository system operated by CDS (CDSX) and the principal amount of Existing Notes held by each Intermediary as of the Record Date (the Intermediaries Lists).
17. THIS COURT ORDERS that, upon receipt by the Proxy, Information and Exchange Agent of the Intermediaries Lists, the Proxy, Information and Exchange Agent shall send a Noteholder Meeting Package to CDS, whose nominee, CDS & Co., is the sole registered Noteholder of the Existing Notes, and shall, through the facilities of CDS, Broadridge Investor Communication Solutions, Canada, a subsidiary of Broadridge Financial Solutions, Inc. (Broadridge), and any other applicable proxy mailing service providers, provide, or cause to be
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provided, in a timely manner and in accordance with customary practices, one Noteholder Meeting Package to each beneficial Noteholder that has an account (directly or indirectly through an agent or custodian) with the Intermediaries.
18. THIS COURT ORDERS that concurrently with the mailing of the Noteholder Meeting Packages as contemplated in paragraph 17 above, CDS shall, in accordance with its customary procedures, cause to be delivered through the Intermediaries to each beneficial Noteholder information pertaining to an electronic version of the Noteholder VIEF through a CDS bulletin and establish a voluntary corporate action pursuant to CDSX or any other similar program which provides each beneficial Noteholder with the opportunity to submit its Noteholder Instructions.
19. THIS COURT ORDERS that each Intermediary shall take any and all reasonable action required to assist any beneficial Noteholder which has an account (directly or through an agent or custodian) with such Intermediary in returning to the Intermediary its Noteholder Instructions or such other documentation (or electronic instructions) as the Intermediary may customarily request from a beneficial Noteholder for purposes of enabling it to vote at the Debtholders Meeting and to deliver its Noteholder Instructions.
20. THIS COURT ORDERS that, as soon as practicable after receipt of the Debtholder Meeting Packages pursuant to paragraph 15 above, the Proxy, Information and Exchange Agent, or the Applicants, shall send, or cause to be sent, by pre-paid ordinary or first-class mail, recognized courier service, e-mail or such other means as the Applicants may determine are reasonable in the circumstances, as follows:
a) | a Noteholder Meeting Package to the Existing Indenture Trustee; and |
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b) | a CFA Lender Meeting Package to each CFA Lender at the address or other contact information in the books and records of the Company for the CFA Lenders, and Sherritt shall post electronic copies of the Noteholder Meeting Package on its website, all in accordance with this Interim Order. |
Notice of Shareholders Meeting and Proxy Solicitation Process
21. THIS COURT ORDERS that, in order to effect notice of the Shareholders Meeting, the Applicants shall send the Information Circular (including the applicable Notice of Meeting, the Notice of Application and this Interim Order) and the form of proxy, along with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (collectively, the Shareholder Meeting Packages), to:
a) | the registered Shareholders at the close of business on the Record Date, at least twenty-one (21) days prior to the date of the Shareholders Meeting, excluding the date of sending and the date of the Shareholders Meeting, by one or more of the following methods: |
i) | by pre-paid ordinary or first-class mail to the addresses of the Shareholders as they appear on the books and records of Sherritt, or its registrar and transfer agent, AST Trust Company (Canada) (the Transfer Agent), at the close of business on the Record Date and if no valid address is shown therein, then the last address of the person known to the Corporate Secretary of Sherritt; |
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ii) | by delivery, in person or by recognized courier service or inter-office mail, to the address specified in (i) above; or |
iii) | by facsimile or electronic transmission to any Shareholder, who is identified to the satisfaction of Sherritt, who requests such transmission in writing and, if required by Sherritt, who is prepared to pay the charges for such transmission; |
b) | the non-registered beneficial Shareholders by providing sufficient copies of the Shareholder Meeting Packages to Intermediaries (or their agents) in a timely manner, in accordance with National Instrument 54-101 of the Canadian Securities Administrators; and |
c) | the respective directors and auditors of the Applicants, and to the Director, by delivery in person, by recognized courier service, by pre-paid ordinary mail, first-class mail, facsimile or electronic transmission, at least twenty-one (21) days prior to the date of the Shareholders Meeting, |
and, for the avoidance of doubt, all Shareholder Meeting Packages and all other communications or documents to be sent pursuant to this Interim Order shall be distributed by or on behalf of the Applicants.
22. THIS COURT ORDERS that accidental failure or omission by the Applicants, the Proxy, Information and Exchange Agent, CDS, Broadridge, any other applicable proxy mailing service providers, the Intermediaries, the Existing Indenture Trustee or any other person referenced in this Interim Order to give notice of the Meetings or to distribute the Debtholder Meeting Packages or
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the Shareholder Meeting Packages to any person entitled by this Interim Order to receive notice or the applicable package, or any failure or omission to give such notice or deliver such package as a result of events beyond the reasonable control of the Applicants, or the non-receipt of such notice or non-delivery of such package shall not constitute a breach of this Interim Order nor shall it invalidate any resolution passed or proceedings taken at each of the Meetings. If any such failure or omission is brought to the attention of the Proxy, Information and Exchange Agent or the Applicants, the Proxy, Information and Exchange Agent and the Applicants shall use their reasonable best efforts to rectify it by the method and in the time most reasonably practicable in the circumstances.
23. THIS COURT ORDERS that in the event of a postal strike, lockout or event that prevents, delays, or otherwise interrupts mailing or delivery of the Debtholder Meeting Packages pursuant to paragraphs 15 to 20 of this Interim Order or the distribution of the Shareholder Meeting Packages pursuant to paragraph 21 of this Interim Order, the issuance of a press release containing the details of the date, time and place of the Meetings, steps that may be taken by Debtholders and Shareholders, as applicable, to deliver or transmit proxies or voting instructions, and advising that the Information Circular will be provided by electronic mail or by courier upon request made by a Debtholder or Shareholder, will be deemed good and sufficient service upon the Debtholders and Shareholders of the Debtholder Meeting Package and Shareholder Meeting Package, as applicable, and shall be deemed to satisfy the requirements of Section 135 of the CBCA.
24. THIS COURT ORDERS that distribution of the Debtholder Meeting Packages pursuant to paragraphs 15 to 20 of this Interim Order and the distribution of the Shareholder Meeting Packages pursuant to paragraph 21 of this Interim Order shall constitute notice of the Meetings and the Record Date and good and sufficient service of the within Application upon the persons
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described in paragraphs 15 to 21 and that those persons are bound by any orders made on the within Application. Further, no other form of service of the Debtholder Meeting Packages or the Shareholder Meeting Packages or any portion thereof need be made, or notice given or other material served in respect of these proceedings, the Meetings and/or the Record Date to such persons or to any other persons (whether pursuant to the CBCA or otherwise), except to the extent required by paragraph 11 above.
Amendments to the Meetings Packages
25. THIS COURT ORDERS that the Applicants are hereby authorized to make such amendments, revisions or supplements to the Debtholder Meeting Packages and/or Shareholder Meeting Packages as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (Additional Information), and that, subject to paragraph 11, notice of such Additional Information may be distributed by press release, CDS bulletins, newspaper advertisement, pre-paid ordinary mail or by such other method most reasonably practicable in the circumstances, as the Applicants may determine.
Noteholder Early Consent Consideration
26. THIS COURT ORDERS that in order for a beneficial Noteholder to be eligible to receive Noteholder Early Consent Consideration pursuant to the Plan of Arrangement, subject to the additional terms and conditions of the Plan of Arrangement:
a) | such beneficial Noteholder must submit to its Intermediary (or Intermediaries) on or prior to the Early Consent Date, or such earlier deadline as the Intermediary may advise, its Noteholder Instructions (and any other documentation or instructions as |
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the Intermediary may customarily request from a beneficial Noteholder for purposes of properly obtaining its voting and election instructions) to permit the Intermediary to duly complete and submit in a timely manner to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants), the beneficial Noteholders Noteholder Instructions by 5:00 p.m. (Toronto time) on the Early Consent Date (the Early Consent Deadline), and such Noteholder Instructions (and any other documentation or instructions as the Intermediary requests) must all instruct a vote in favour of the Debtholders Arrangement Resolution; |
b) | such beneficial Noteholder must not have withdrawn or changed its vote in favour of the Debtholders Arrangement Resolution prior to the Effective Date; and |
c) | the Intermediary must take such steps and/or actions as are necessary or required to complete and submit the beneficial Noteholders Noteholder Instructions as provided to the Intermediary in accordance with subparagraph (a) to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) prior to the Early Consent Deadline, |
and each such Intermediary shall verify the holdings of the Existing Notes as at the Early Consent Date of the beneficial Noteholders that submit their Noteholder Instructions in accordance with this paragraph 26 and shall submit such beneficial Noteholders Noteholder Instructions to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) by the Early Consent Deadline.
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CFA Lender Elections
27. THIS COURT ORDERS that each CFA Lender shall be required to indicate as part of its CFA Lender Instructions whether such CFA Lender wishes to make an Ambatovy Interests Exchange Election or an Amended CFA Loan Election (each a CFA Lender Election), which CFA Lender Instructions must be submitted to the Proxy, Information and Exchange Agent by the Voting Deadline pursuant to paragraph 29. If a CFA Lender does not make a CFA Lender Election as set out in the CFA Lender Voting and Election Form and pursuant to the terms of this Interim Order, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender under the Plan of Arrangement.
Voting by VIEFs, Voting Forms and Proxies
28. THIS COURT ORDERS that the Applicants are authorized to use the forms of proxy, voting forms and/or voting information and election forms, including the Noteholder VIEF and the CFA Lender Voting and Election Faun, along with such amendments and additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (including any electronic versions thereof). The Applicants are authorized, at their expense, to solicit proxies, directly or through their officers, directors or employees, and through the Proxy, Information and Exchange Agent, National Bank Financial Inc., Broadridge and such other agents or representatives or soliciting dealers as the Applicants may retain for that purpose, and by mail or such other forms of personal or electronic communication as they may determine.
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29. THIS COURT ORDERS that if not otherwise cast in accordance with paragraph 26 above, in order to cast a vote at the Debtholders Meeting:
a) | beneficial Noteholders must submit to their respective Intermediary at or prior to 5:00 p.m. (Toronto time) on April 7, 2020, or such later date as may be agreed by the Applicants in the event that the applicable Meeting is postponed or adjourned (the Voting Deadline), or such earlier deadline as the Intermediary may advise the applicable beneficial Noteholder, its duly completed voting information and election form (or such other documentation or instructions as the Intermediary may customarily request from such beneficial Noteholder for purposes of properly obtaining their voting instructions); and |
b) | CFA Lenders must submit to the Proxy, Information and Exchange Agent at or prior to the Voting Deadline, its duly completed proxy, voting and election form (or such other documentation as the Proxy, Information and Exchange Agent may customarily request for purposes of properly obtaining their voting instructions). |
30. THIS COURT ORDERS that each Intermediary shall verify the holdings of Existing Notes of the beneficial Noteholders that submit their Noteholder Instructions to such Intermediary pursuant to paragraph 29 above, and shall submit such beneficial Noteholders instructions to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) as soon as practicable following receipt of such beneficial Noteholders Noteholder Instructions.
31. THIS COURT ORDERS that any beneficial Noteholder or CFA Lender that wishes to attend the Debtholders Meeting in person or appoint another person as proxy (other than as
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contemplated by the Noteholder VIEF or the CFA Lender Voting and Election Form, as applicable) (each, an In-Person Debtholder) shall be required to contact the Proxy, Information and Exchange Agent and shall be required to complete separate documentation in accordance with the instructions provided by the Proxy, Information and Exchange Agent for purposes thereof.
32. THIS COURT ORDERS that in order to cast its vote at the Shareholders Meeting, the Shareholders must submit, or cause to be submitted, to the Transfer Agent by the Voting Deadline, their duly completed proxies in accordance with the instructions contained therein. The Transfer Agent shall provide the proxies received from Shareholders together with a summary thereof to the Proxy, Information and Exchange Agent as soon as practicable following the Voting Deadline.
33. THIS COURT ORDERS that Noteholders shall be entitled to revoke their Noteholder Instructions as follows:
a) | if revoking Noteholder Instructions instructing a vote in favour of the Debtholders Arrangement Resolution which was submitted prior to the Early Consent Deadline, then a revocation will be deemed to be made upon such beneficial Noteholder providing amended instructions to such beneficial Noteholders Intermediary at any time on or prior to the Early Consent Date, provided such Intermediary has then delivered such amended instructions to CDS in accordance with the process described in paragraph 26 prior to the Early Consent Deadline. For greater certainty, if a Noteholders vote in favour of the Debtholders Arrangement Resolution is submitted on or prior to the Early Consent Date, such Noteholder may not subsequently revoke such vote after the Early Consent Deadline has passed; and |
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b) | if revoking any other Noteholder Instructions, a revocation will be deemed to be made upon (i) in respect of a change in vote by a beneficial Noteholder, such beneficial Noteholder providing new instructions to its Intermediary at any time up to the Voting Deadline, which the Intermediary must then deliver to CDS in accordance with the process described in paragraph 30 prior to the Voting Deadline (or as soon as reasonably practicable thereafter); (ii) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a beneficial Noteholder, the Intermediary of such beneficial Noteholder providing a written statement indicating that such beneficial Noteholder wishes to have its voting instructions revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the applicable Meeting and which withdrawal shall be forwarded to the Applicants upon receipt; and (iii) in any other manner permitted by the Applicants, acting reasonably. |
34. THIS COURT ORDERS that CFA Lenders shall be entitled to revoke their CFA Lender Instructions and a revocation of the vote will be deemed to be made upon (a) in respect of a change in vote by a CFA Lender, such CFA Lender providing new instructions to the Proxy, Information and Exchange Agent at any time up to the Voting Deadline (or as soon as reasonably practicable thereafter); (b) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a CFA Lender, such CFA Lender providing a written statement indicating that it wishes to have its CFA Lender Instructions revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the applicable
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Meeting and which withdrawal shall be forwarded to the Applicants upon receipt; and (c) in any other manner permitted by the Applicants, acting reasonably.
35. THIS COURT ORDERS that registered Shareholders shall be entitled to revoke their proxies (i) in accordance with subsection 148(4) of the CBCA, or (ii) in any other manner permitted by law.
36. THIS COURT ORDERS that, notwithstanding paragraphs 27 and 32, the Applicants shall have the discretion to accept for voting purposes any duly completed proxy, voting form and/or voting information and election form, as applicable, submitted following the Voting Deadline but prior to the commencement of the applicable Meeting, and the Applicants are hereby authorized to use reasonable discretion as to the adequacy of compliance with respect to the manner in which any proxy, voting form and/or voting information and election form is completed and executed, or electronically submitted, and may waive strict compliance with the deadlines imposed in connection with the deposit or revocation of proxies, voting and/or election instructions, as applicable, if the Applicants deem it advisable to do so.
37. THIS COURT ORDERS that paragraphs 26 to 36 hereof, and the instructions contained in the proxies, voting forms or voting information and election forms, as applicable, shall govern the submission of the applicable proxy, voting form or voting information and election form.
Voting
38. THIS COURT ORDERS that the only persons entitled to vote in person or by proxy (i) on the Debtholders Arrangement Resolution, or such other business as may be properly brought before the Debtholders Meeting, shall be those Debtholders as at the Record Date, provided that
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beneficial Noteholders shall be deemed to transfer their rights to vote on the Debtholders Arrangement Resolution, attend the Debtholders Meeting and make the Noteholder Instructions associated with their Existing Notes upon any transfer of beneficial ownership of such Existing Notes to any transferee of such Existing Notes on or prior to the Voting Deadline or such earlier date as its Intermediary may advise, and (ii) on the Stated Capital Reduction Resolution, or such other business as may be properly brought before the Shareholders Meeting, shall be the Shareholders as at the Record Date. Subject to paragraph 36, illegible votes, spoiled votes, defective votes and abstentions in respect of any ballot(s) conducted at the applicable Meeting shall be deemed to be votes not cast. Proxies that are properly signed and dated but which do not contain voting instructions shall be voted in favour of the applicable Resolution.
39. THIS COURT ORDERS that votes shall be taken at the Debtholders Meeting in respect of the Debtholders Arrangement Resolution and any other items of business affecting the Applicants properly brought before such Meeting on the basis of one vote per $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date.
40. THIS COURT ORDERS that for the purposes of determining the principal amount of CFA Loans entitled to vote at the Debtholders Meeting, the CFA Loans shall be converted to Canadian dollars based on the Bank of Canada daily U.S. dollar to Canadian dollar exchange rate in effect on the Record Date.
41. THIS COURT ORDERS that votes shall be taken at the Shareholders Meeting in respect of the Stated Capital Reduction Resolution and in respect of matters properly brought before the
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Shareholders Meeting on the basis of one vote per Common Share outstanding as at the Record Date.
42. THIS COURT ORDERS that in order for the Plan of Arrangement to be considered to have been approved at the Debtholders Meeting, subject to further Order of this Court, the Debtholders Arrangement Resolution must be passed, with or without variation, at the Debtholders Meeting by an affirmative vote of at least two-thirds (662⁄3%) of the votes cast in respect of the Debtholders Arrangement Resolution at the Debtholders Meeting in person or by proxy by the Debtholders. The vote set out above shall be sufficient to authorize the Applicants, the Proxy, Information and Exchange Agent and the Existing Indenture Trustee to do all such acts and things as may be necessary or desirable to give effect to the Arrangement and the Plan of Arrangement on a basis consistent with what is provided for in the Information Circular, as it may be amended, revised and/or supplemented pursuant to the terms of this Interim Order or further Order of the Court, without the necessity of any further approval by the Debtholders, subject only to final approval of the Arrangement by this Court and the satisfaction or waiver of the conditions to the Plan of Arrangement pursuant to its terms.
43. THIS COURT ORDERS that in order for the Stated Capital Reduction Resolution to be considered to have been approved at the Shareholders Meeting, subject to further Order of this Court, the Stated Capital Reduction Resolution must be passed, with or without variation, at the Shareholders Meeting by an affirmative vote of at least two-thirds (662⁄3%) of the votes cast in respect of the Stated Capital Reduction Resolution at the Shareholders Meeting in person or by proxy by the Shareholders.
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Hearing of Application for Approval of the Arrangement
44. THIS COURT ORDERS that following the Debtholders Meeting, the Applicants may apply to this Court for final approval of the Arrangement (the Final Order Application). For certainty, the Applicants shall not be required to hold the Shareholders Meeting in order to seek final approval of the Arrangement at the Final Order Application.
45. THIS COURT ORDERS that, promptly following the granting of this Interim Order, the Applicants shall issue a press release concerning the granting of the Interim Order and the anticipated Final Order Application.
46. THIS COURT ORDERS that (i) the distribution of the Notice of Application and the Interim Order in the Information Circular, when sent in accordance with paragraphs 15 to 20, and (ii) the additional actions described in paragraph 45 above, shall constitute good and sufficient service of the Notice of Application, this Interim Order and the Final Order Application on all interested persons and no other form of service need be effected and no other material need be served unless a Notice of Appearance is served in accordance with paragraph 47 below.
47. THIS COURT ORDERS that any Notice of Appearance served in response to the Notice of Application shall be served on the solicitors for the Applicants as soon as reasonably practicable, and, in any event, no less than four (4) days before the hearing of the Final Order Application at the following addresses:
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Goodmans LLP
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Attention: Robert J. Chadwick and Caroline Descours
Email: rchadwick@goodmans.ca / cdescours@goodmans.ca
48. THIS COURT ORDERS that, subject to further order of this Court, the only persons entitled to appear and be heard at the hearing of the within application shall be:
i) | the Applicants; |
ii) | the Director; |
iii) | the Debtholders; |
iv) | the Existing Indenture Trustee; |
v) | any person who has filed a Notice of Appearance herein in accordance with the Notice of Application, this Interim Order and the Rules of Civil Procedure; and |
vi) | their respective legal counsel. |
49. THIS COURT ORDERS that any materials to be filed by the Applicants in support of the Final Order Application may be filed up to one day prior to the hearing of the Final Order Application without further order of this Court.
50. THIS COURT ORDERS that in the event the Final Order Application does not proceed on the date set forth in the Notice of Application, and is adjourned, only those persons on the service list in this proceeding or who served and filed a Notice of Appearance in accordance with paragraph 47 shall be entitled to be given notice of the adjourned date.
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Stay of Proceedings
51. THIS COURT ORDERS that, from 12:01 a.m. (Toronto time) on the date of this Interim Order, until and including the earlier of the Effective Date and the date these CBCA proceedings are terminated, no right, remedy or proceeding, including, without limitation, any right to terminate, demand, accelerate, set off, amend, declare in default or take any other action under or in connection with any loan, note, commitment, contract or other agreement, at law or under contract, may be exercised, commenced or proceeded with against or in respect of any of the Sherritt Entities, or any of the present or future property, assets, rights or undertakings of the Sherritt Entities, of any nature in any location, whether held directly or indirectly by the Sherritt Entities by:
a) | any of the Noteholders or the Existing Indenture Trustee (or similar person in respect of the Existing Notes) in respect of any default or event of default under the Existing Notes, the Existing Notes Indenture or any other Existing Note Documents (including, without limitation, the non-payment of interest and/or any other amounts due and payable in respect of the Notes); |
b) | any of the CFA Lenders in respect of any default or event of default under the CFA Loans, the CFA Loan Agreements or any other CFA Loan Documents (including, without limitation, the non-payment of interest and/or any other amounts due and payable in respect of the CFA Loans); or |
c) | any other person party to or a beneficiary of any other loan, note, commitment, contract or other agreement with one or more of the Sherritt Entities, by reason or as a result of: |
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i) | any of the Applicants having made an application to this Court pursuant to Section 192 of the CBCA; |
ii) | any of the Applicants or the Guarantors being a party to or involved in this proceeding, any ancillary proceedings or the Arrangement; |
iii) | the provisions of this Interim Order or any other order in these proceedings or any ancillary proceedings; |
iv) | the Arrangement or any of the steps, transactions or proceedings contemplated thereby or relating thereto, however or whenever taken; or |
v) | any default or cross-default arising under any agreement to which any Sherritt Entity is a party as a result of any default or event of default under the Existing Note Documents, the CFA Loan Documents or any other circumstance listed above, |
in each case except with the prior written consent of the Applicants or leave of this Court, provided that this paragraph 51 shall not apply to the Revolving Bank Facility Lenders or the Revolving Bank Facility Administrative Agent.
Stay Comeback Hearing
52. THIS COURT ORDERS that any interested party that wishes to amend or vary paragraph 51 of this Interim Order shall be entitled to bring a motion before this Court on seven business days notice to the Applicants and any other party or parties likely to be affected by the order to be sought by such interested party.
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Existing Indenture Trustee
53. THIS COURT ORDERS that the Existing Indenture Trustee is authorized and directed to take all such actions as set out in this Interim Order and the Existing Indenture Trustee shall incur no liability as a result of carrying out the provisions of this Interim Order and the taking of all actions incidental hereto, save and except for any gross negligence or wilful misconduct on its part.
Variance
54. THIS COURT ORDERS that the Applicants shall be entitled to seek leave to vary this Interim Order upon such terms and upon the giving of such notice as this Court may direct.
Precedence
55. THIS COURT ORDERS that, to the extent of any inconsistency or discrepancy between this Interim Order and the terms of any instrument creating, governing or collateral to the Existing Notes or the CFA Loans, the Information Circular, the provisions of the CBCA or any of the articles or by-laws of the Applicants, this Interim Order shall govern.
E-Service Protocol
56. THIS COURT ORDERS that the E-Service Guide of the Commercial List (the Guide) is approved and adopted by reference herein and, in this proceeding, the service of documents made in accordance with the Guide (which can be found on the Commercial List website at http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/eservice-commercial/) shall be valid and effective service. Subject to Rule 17.05, this Interim Order shall constitute an order
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for substituted service pursuant to Rule 16.04 of the Rules of Civil Procedure. Subject to Rule 3.01(d) of the Rules of Civil Procedure and paragraph 13 of the Guide, service of documents in accordance with the Guide will be effective on transmission.
57. THIS COURT ORDERS that if the service or distribution of documents in accordance with the Guide is not practicable, the Applicants are at liberty to serve or distribute this Interim Order, any other materials and orders in these proceedings, any notices or other correspondence, by forwarding true copies thereof by prepaid ordinary mail, courier, personal delivery or facsimile transmission to interested parties at their respective addresses as last shown on the records of the Applicants and that any such service or distribution by courier, personal delivery or facsimile transmission shall be deemed to be received on the next business day following the date of forwarding thereof, or if sent by ordinary mail, on the third business day after mailing.
58. THIS COURT ORDERS that the Applicants and their respective counsel are at liberty to serve or distribute this Interim Order, any other materials and orders as may be reasonably required in these proceedings, including any notices, or other correspondence, by forwarding true copies thereof by electronic message to interested parties and their advisors, as applicable. For greater certainty, any such distribution or service shall be deemed to be in satisfaction of a legal or juridical obligation, and notice requirements within the meaning of clause 3(c) of the Electronic Commerce Protection Regulations, Reg. 81000-2-175 (SORJDORS).
Foreign Proceeding
59. THIS COURT ORDERS that the Applicants or either of them are hereby authorized and empowered, but not required, to act as the foreign representative (the Foreign Representative)
27
in respect of the within proceedings for the purpose of having these proceedings recognized and approved in a jurisdiction outside of Canada.
60. THIS COURT ORDERS that the Foreign Representative is hereby authorized to apply for foreign recognition and approval of these proceedings, as necessary, in any jurisdiction outside of Canada.
Extra-Territorial Assistance
61. THIS COURT seeks and requests the aid and recognition of any court or any judicial, regulatory or administrative body in any province of Canada and any judicial, regulatory or administrative tribunal or other court constituted pursuant to the Parliament of Canada or the legislature of any province and any court or any judicial, regulatory or administrative body any other country to act in aid of and to assist this Court in carrying out the terms of this Interim Order.
/s/ Justice Conway |
28
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE |
Court File No. CV-20-636938-00CL | |
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD. |
ONTARIO SUPERIOR COURT OF JUSTICE- COMMERCIAL LIST
Proceeding commenced at Toronto | ||
INTERIM ORDER | ||
GOODMANS LLP Barristers & Solicitors 333 Bay Street, Suite 3400 Toronto, Canada M5H 2S7 | ||
Robert J. Chadwick LSO#: 35165K rchadwick@goodmans.ca | ||
Caroline Descours LSO#: 58251A cdescours@goodmans.ca | ||
Andrew Harmes LSO#: 73221A aharmes@goodmans.ca | ||
Tel: (416) 979-2211 Fax: (416) 979-1234 | ||
7033547 | Lawyers for the Applicants |
Exhibit T3E
NOTICE OF MEETING OF HOLDERS OF CERTAIN DEBT
AND
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
OF SHERRITT INTERNATIONAL CORPORATION
To be held on April 9, 2020
AND
MANAGEMENT INFORMATION CIRCULAR
with respect to, among other things, a proposed
PLAN OF ARRANGEMENT
UNDER THE CANADA BUSINESS CORPORATIONS ACT
March 6, 2020
These materials are important and require your immediate attention. They require certain Debtholders and Shareholders of Sherritt International Corporation to make important decisions. If you are in doubt as to how to make such decisions, please contact your financial, legal or other professional advisors. Kingsdale Advisors, as Proxy, Information and Exchange Agent on behalf of Sherritt International Corporation, can be reached by telephone at 416-867-2272 or toll-free at 1-800-749-9197 or by email at contactus@kingsdaleadvisors.com.
TABLE OF CONTENTS
NOTICE OF MEETING OF DEBTHOLDERS | 1 | |||
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS | 1 | |||
IMPORTANT INFORMATION | 3 | |||
EXCHANGE RATES | 3 | |||
DOCUMENTS INCORPORATED BY REFERENCE | 4 | |||
FORWARD-LOOKING STATEMENTS | 4 | |||
NOTICE TO DEBTHOLDERS IN THE UNITED STATES | 5 | |||
GLOSSARY OF TERMS | 7 | |||
SUMMARY OF CIRCULAR | 18 | |||
INFORMATION CONCERNING THE MEETINGS | 26 | |||
SOLICITATION OF PROXIES | 26 | |||
APPOINTMENT OF PROXIES | 26 | |||
NOTEHOLDER PROXIES | 27 | |||
CFA LENDER PROXIES | 27 | |||
SHAREHOLDER PROXIES | 27 | |||
ENTITLEMENT TO VOTE AND ATTEND | 27 | |||
REVOCATION OF PROXIES | 28 | |||
VOTING OF PROXIES | 28 | |||
NON-REGISTERED HOLDERS OF COMMON SHARES AND EXISTING NOTES | 29 | |||
QUORUM AND VOTING REQUIREMENTS | 30 | |||
VOTING SHARES AND THE PRINCIPAL HOLDERS THEREOF | 31 | |||
INTEREST OF MANAGEMENT AND OTHERS | 31 | |||
QUESTIONS AND OTHER ASSISTANCE | 32 | |||
BUSINESS OF THE MEETINGS | 32 | |||
IMPACT OF THE TRANSACTION | 32 | |||
DESCRIPTION OF THE TRANSACTION AND CERTAIN RELATED MATTERS | 33 | |||
SECURITIES LAW MATTERS | 38 | |||
ARRANGEMENT STEPS | 39 | |||
CONDITIONS PRECEDENT TO THE IMPLEMENTATION OF THE PLAN | 42 | |||
TERMS OF THE NEW SECOND LIEN NOTES AND THE NEW NOTES INDENTURE | 43 | |||
REVOLVING BANK FACILITY AMENDMENTS | 45 | |||
BACKGROUND TO AND REASONS FOR THE TRANSACTION | 45 | |||
RECOMMENDATION OF THE BOARD | 59 | |||
INFORMATION CONCERNING THE CORPORATION | 59 | |||
RISK FACTORS | 59 |
i
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS | 72 | |||
EXPERTS | 76 | |||
INTEREST OF CERTAIN PERSONS OR COMPANIES IN MATTERS TO BE ACTED UPON | 76 | |||
OTHER BUSINESS | 76 | |||
ADDITIONAL INFORMATION | 76 | |||
APPROVAL OF BOARD OF DIRECTORS | 77 | |||
CONSENT OF PARADIGM CAPITAL | 78 |
APPENDICES
APPENDIX A DEBTHOLDERS ARRANGEMENT RESOLUTION
APPENDIX B STATED CAPITAL REDUCTION RESOLUTION
APPENDIX C PLAN OF ARRANGEMENT
APPENDIX D ARRANGEMENT AGREEMENT
APPENDIX E NOTICE OF APPLICATION
APPENDIX F INTERIM ORDER
APPENDIX G PARADIGM CAPITAL OPINIONS
APPENDIX H DESCRIPTION OF NOTES
ii
March 6, 2020
To: |
the Debtholders (as defined in the accompanying management information circular) | |
And to: |
the Shareholders (as defined in the accompanying management information circular) |
In connection with our key strategic priority of maintaining financial strength and liquidity, Sherritt International Corporation (Sherritt, the Corporation or we or us or our) has, for a significant period of time, been reviewing and evaluating potential strategic alternatives to strengthen our capital structure, improve liquidity and maximize value for all stakeholders.
As has been previously communicated by the Corporation, and as described in further detail in the accompanying management information circular (the Circular), Sherritt has been challenged by unfavourable geopolitical conditions and depressed nickel prices for an extended period of time, by significant difficulties in collecting its overdue Cuban receivables in light of increased U.S. sanctions against Cuba, and by its significant historical debt levels largely due to its Ambatovy Joint Venture investment.
Sherritt, overseen by its board of directors (the Board) and with the assistance of its professional advisors, reviewed in detail numerous potential strategic alternatives, including, among other things, raising additional secured debt in priority to its existing unsecured debt obligations, extending the maturities of its existing unsecured debt obligations, exchanging certain or all of its unsecured notes for new secured debt, exchanging debt for equity, purchasing notes for cancellation in the open market or pursuant to an auction, maintaining the status quo and other potential strategic alternatives.
Sherritt has also engaged in extensive efforts with its Cuban partners over an extended period of time to reduce its outstanding Cuban Receivables to assist in improving its liquidity position, which efforts have culminated in a new agreement pursuant to which Sherritts Cuban partners have committed to increase the US$2.5 million monthly payments to Sherritt pursuant to the overdue receivables agreement ratified in June 2019, with incremental US$5 million monthly payments to fund Energas operations and reduce overdue receivables owing to Sherritt. While this new payment commitment from Sherritts Cuban partners is a positive step towards assisting Sherritt with its liquidity challenges, there remains potential uncertainty with regard to the Corporations Cuban operations and future collections in light of the increased U.S. sanctions and other factors continuing to affect Cuba, and there remain other market and commodity price challenges that continue to impact Sherritts overall liquidity position.
Following its detailed review process, and in light of the Corporations circumstances, Sherritt is now seeking to implement a proposed transaction (the Transaction), which, as described in further detail in the Circular, would reduce the Corporations total outstanding principal debt obligations by approximately $414 million and reduce annual cash interest payments by approximately $19 million by, among other things:
(i) | exchanging Sherritts existing note obligations in the aggregate principal amount of approximately $588 million, together with all accrued and unpaid interest thereon, for new 8.50% second lien notes due 2027 (the New Second Lien Notes) in an aggregate principal amount of approximately $294 million, plus the amount of accrued and unpaid interest outstanding in respect of the Existing Notes, and certain early consent cash consideration; and |
(ii) | exchanging Sherritts obligations in respect of the partner loans relating to the Ambatovy Joint Venture in the aggregate principal amount of approximately $145 million, plus all accrued and unpaid interest thereon, |
(i)
for, at the election of each lender, either its pro rata share of Sherritts interests in the Ambatovy Joint Venture or amended loans with no further recourse as against Sherritt, all as further described in the Circular. |
The Transaction would also result in an extension of the maturity of the Corporations note obligations from 2021, 2023 and 2025, respectively, under its existing notes to 2027 under the New Second Lien Notes.
While the Corporation has achieved significant debt reduction over the last number of years and has been carefully managing its liquidity position, the Corporation continues to have an over-leveraged capital structure. The Corporation currently has cash resources and availability under its Revolving Credit Facility, and no immediate maturities in respect of its debt obligations, however, its remaining high level of debt with significant fixed interest payments has been a key concern for Sherritt for an extended period of time based on the volatile nature of nickel and cobalt prices over many years and the challenging market conditions facing the Corporation.
The successful implementation of the Transaction will strengthen the Corporations financial position by improving the Corporations overall capital structure and liquidity, as set out in greater detail in the Circular. Deleveraging the Corporation at this time and improving its overall capital structure and liquidity are critical to put the Corporation in a better position to withstand challenges relating to, among other things, exposure to volatile commodity prices and overall challenging geopolitical and market conditions, and to strengthen the Corporations financial condition.
The Transaction is to be implemented through a corporate plan of arrangement (the Plan) in the proceedings (the CBCA Proceedings) commenced by Sherritt and its subsidiary, 11722573 Canada Ltd. (collectively the Applicants) under the Canada Business Corporations Act (the CBCA), as more particularly set forth in the Plan attached as Appendix C to the Circular and as further described in the Circular. Capitalized terms used herein, and not otherwise defined, have the meanings set forth in the Circular.
The Transaction includes, among other things, the following key elements:
| the Corporations (i) 8.00% senior unsecured debentures due November 15, 2021, (ii) 7.50% senior unsecured debentures due September 24, 2023, and (iii) 7.875% senior unsecured notes due October 11, 2025 (collectively, the Existing Notes), in the aggregate principal amount of approximately $588 million, will, together with all accrued and unpaid interest thereon, be exchanged on the implementation date of the Plan (the Effective Date) as follows: |
| each holder of the Existing Notes (a Noteholder) that votes in favour of the Plan prior to 5:00 p.m. on March 27, 2020 (the Early Consent Deadline), as such deadline may be extended by Sherritt (each, an Early Consenting Noteholder) will receive, as consideration in exchange for its Existing Notes: |
| New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Early Consenting Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Early Consenting Noteholder in respect of its Existing Notes up to but not including the Effective Date; and |
| a cash payment in an amount equal to 3% of the principal amount of the Existing Notes voted in favour of the Plan by the Early Consent Deadline and held by such Early Consenting Noteholder at the Effective Date; |
| each Noteholder that is not an Early Consenting Noteholder will receive, as consideration in exchange for its Existing Notes, New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Noteholder in respect of its Existing Notes up to but not including the Effective Date; |
(ii)
| the final aggregate principal amount of New Second Lien Notes to be issued pursuant to the Transaction will depend on the aggregate amount of interest accrued in respect of the Existing Notes up to the Effective Date. Based on an Effective Date of April 30, 2020, the aggregate principal amount of New Second Lien Notes to be issued would be approximately $319 million; |
| the New Second Lien Notes will have an interest rate of 8.500% per annum, which will be payable semi-annually in arrears on April 30 and October 30 of each year, and mature on April 30, 2027, and will be secured by substantially all personal property and assets of Sherritt and each of the New Notes Guarantors, pursuant to collateral documents in substantially the same form as those provided in respect of the Revolving Bank Facility. At any time that the aggregate outstanding principal amount of New Second Lien Notes, together with any other indebtedness ranking pari passu therewith permitted under the New Notes Indenture is $150 million or more, the Corporation shall, subject to a minimum liquidity threshold of $75 million, be required to redeem New Second Lien Notes on a semi-annual basis on April 30 and October 30 of each year, from and after October 30, 2021, in a principal amount equal to 50% of the Corporations excess cash flow, subject to the terms of the New Notes Indenture that will govern the New Second Lien Notes; |
| Sherritts obligations under the CFA Loans, including the aggregate principal amount of approximately $145 million,1 all accrued and unpaid interest, and any and all other related obligations in respect of the CFA Loans, will be assumed by the CFA Guarantor and exchanged, at the election of each CFA Lender for either (i) such CFA Lenders pro rata share of the Ambatovy Interests, or (ii) Amended CFA Loans in a principal amount equal to the amounts outstanding under such CFA Lenders existing CFA Loan(s), which Amended CFA Loans will be obligations solely of the CFA Guarantor and have no recourse as against Sherritt; |
| any Amended CFA Loans issued pursuant to the Transaction will be on substantially similar terms as the existing CFA Loans, subject to the following: (i) the CFA Guarantor will be the sole borrower under the Amended CFA Loans; (ii) Sherritt will have no obligations in respect of the Amended CFA Loans and there will be no recourse whatsoever against Sherritt in respect of the Amended CFA Loans; and (iii) the CFA Lender will have the right under its Amended CFA Loan, for up to 12 months following implementation of the Transaction, to direct the CFA Guarantor to transfer such CFA Lenders pro rata share of the Ambatovy Interests as directed by such CFA Lender in consideration for the full and final settlement of the CFA Lenders Amended CFA Loan at such time; |
| Sherritt and its subsidiary, 11722573 Canada Ltd., will amalgamate; and |
| the Released Claims will be released pursuant to the Plan. |
Subject to the receipt of the requisite approvals of the Plan and the satisfaction or waiver of all applicable conditions of the Transaction under the Plan, Sherritt expects to implement the Transaction by the end of April 2020.
Pursuant to the terms of Sherritts Existing Notes Indenture, Sherritt has the ability to raise secured second lien debt in the amount of approximately $230 million and to complete an exchange transaction using such secured debt basket outside of a CBCA transaction.
The Transaction does not affect any other obligations of the Corporation or involve the outstanding equity securities of the Corporation, and Sherritt will continue to satisfy its obligations to employees, suppliers, customers and governmental authorities in the ordinary course of business.
In connection with the Transaction, and subject to Shareholder approval, the Corporation anticipates reducing the stated capital of its Common Shares to $575 million (the Stated Capital Reduction), as further set out in the Circular. The Stated Capital Reduction is a preliminary step in connection with implementing the Transaction under
1 | Principal amount of CFA Loans is as at January 31, 2020, and has been calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at January 31, 2020, being US$1:CDN$1.3233. |
(iii)
the CBCA Proceedings. The Stated Capital Reduction will not impact the Corporations current number of common shares issued and outstanding.
Paradigm Capital Inc. (Paradigm Capital), an independent financial advisor to the Board, has provided opinions to the Board that (i) the Noteholders and the CFA Lenders, respectively, would be in a better position, from a financial point of view, under the Transaction than if the Corporation were liquidated; and (ii) the Transaction is fair, from a financial point of view, to the Corporation.
Following the Corporations detailed review process and careful consideration of various potential strategic alternatives, and taking into account, among other things, the various industry and geopolitical challenges impacting the Corporation, the terms of the Transaction, the anticipated benefits of the Transaction for the Corporation and its stakeholders, the opinions of Paradigm Capital, and legal and financial advice from the Corporations professional advisors, the Board unanimously determined that the Transaction is the best available alternative for the Corporation and its stakeholders at this time and authorized the Corporation to seek to implement the Transaction. The Board unanimously recommends that the Debtholders VOTE FOR the Debtholders Arrangement Resolution and the Transaction contemplated thereby, and that the Shareholders VOTE FOR the Stated Capital Reduction Resolution.
Reasons for the recommendation of the Board that Debtholders vote for the Transaction include (i) all holders of Existing Notes will be treated in a fair and balanced way and will receive equal treatment in the form of New Second Lien Notes, and will receive security over all of the material assets of the Corporation; (ii) the New Second Lien Notes will rank in priority to unsecured obligations of the Corporation, as described in more detail in the Description of Notes; (iii) the Existing Notes, as pari passu senior unsecured obligations of the Corporation, will be treated on an equal basis, whereas alternative transactions available to the Corporation could disproportionately benefit holders of certain series of Existing Notes and increase the risk of payment or recovery to holders of other series of Existing Notes; (iv) with an improved capital structure, the Transaction will put the Corporation in a stronger position to satisfy all of the obligations and payments under the New Second Lien Notes; (v) the mandatory redemption covenant in respect of the New Second Lien Notes requires additional prepayments at par in respect of such New Second Lien Notes in improved financial conditions; (vi) the Transaction reduces the risk of potential debt defaults and month-to-month liquidity challenges; (vii) the Transaction extends the maturity of the Corporations note obligations to 2027, providing the Corporation with additional time to improve the business and create value for the benefit of stakeholders, and (viii) the exchange of the CFA Loans for either (i) the Ambatovy Interests, or (ii) the Amended CFA Loans, as applicable, is appropriate in light of the value and structure of the CFA Loans and eliminates a significant amount of Sherritts historic debt obligations in respect of the Ambatovy Joint Venture.
Debtholders as at 5:00 p.m. on March 6, 2020, being the record date for the Meetings, will be asked to approve the Arrangement by way of a resolution (the Debtholders Arrangement Resolution) at the Debtholders Meeting scheduled to be held at 10:00 a.m. (Toronto time) on April 9, 2020. Shareholders as at 5:00 p.m. on March 6, 2020, being the record date for the Meetings, will be asked to approve the Stated Capital Reduction by way of a special resolution (the Stated Capital Reduction Resolution) at the Shareholders Meeting to be held at 10:30 a.m. (Toronto time) on April 9, 2020. The Meetings will be held at the offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario.
In order for the Transaction to be approved at the Debtholders Meeting, the Debtholders Arrangement Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Debtholders present in person or by proxy at the Debtholders Meeting and entitled to vote thereon. The Stated Capital Reduction Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Shareholders present in person or by proxy at the Shareholders Meeting and entitled to vote thereon. The Corporation may seek final approval of the Plan by the Court even if the Stated Capital Reduction Resolution is not passed at the Shareholders Meeting.
Should the Transaction not be implemented pursuant to the Plan for any reason, the Corporation will continue to review its available strategic alternatives and other potential transactions, including the use of the available $230 million secured debt basket under its Existing Notes Indenture to exchange one series, a combination of series or a portion of all series of its Existing Notes.
(iv)
We encourage you to vote on the matters set out in the Circular by following the voting instructions set out therein by the applicable deadline.
Yours very truly,
(signed) David Pathe |
Chief Executive Officer |
Sherritt International Corporation |
These materials are important and require your immediate attention. The transactions contemplated as part of the Transaction are complex. The accompanying Circular contains a description of the Transaction and a copy of the Plan, along with other information concerning Sherritt to assist you in considering this matter. You are urged to review this information carefully. Should you have any questions or require assistance in understanding and evaluating how you will be affected by the Transaction, please consult your legal, tax or other professional advisors.
If you have any questions or require additional information with regard to voting your debt or your shares, please contact our proxy solicitation, information and exchange agent, Kingsdale Advisors, by: (a) telephone, toll-free in North America at 1-800-749-9197 or at 416-867-2272 outside of North America, or (b) e-mail to contactus@kingsdaleadvisors.com.
(v)
NOTICE OF MEETING OF DEBTHOLDERS
TO: | Holders of 8.00% Senior Unsecured Debentures of Sherritt International Corporation (the Corporation) due November 15, 2021 (the Existing 2021 Notes) | |
AND TO: | Holders of 7.50% Senior Unsecured Debentures of the Corporation due September 24, 2023 (the Existing 2023 Notes) | |
AND TO: | Holders of 7.875% Senior Unsecured Notes of the Corporation due October 11, 2025 (the Existing 2025 Notes and together with the Existing 2021 Notes and the Existing 2023 Notes, the Existing Notes) | |
AND TO: | Summit Ambatovy Mineral Resources Investment B.V., as lender, Sumitomo Corporation, as lender guarantor, The Export-Import Bank of Korea, as lender, and Korea Resources Corporation, as take-out financier, and any of their respective permitted successors or assigns (the CFA Lenders) under the CFA Loan Agreements |
NOTICE IS HEREBY GIVEN that a meeting (the Debtholders Meeting) of the holders of the Existing Notes (the Noteholders) and the CFA Lenders (collectively with the Noteholders, the Debtholders) will be held at the offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario, on April 9, 2020, at 10:00 a.m. (Toronto time) pursuant to an order (the Interim Order) of the Ontario Superior Court of Justice (Commercial List) (the Court) dated February 26, 2020, for the following purposes:
(a) | to consider and, if deemed advisable, to pass, with or without variation, a resolution (the Debtholders Arrangement Resolution), the full text of which is set out in Appendix A to the accompanying management information circular (the Circular), approving an arrangement (the Arrangement) pursuant to Section 192 of the Canada Business Corporations Act, which Arrangement is more particularly described in the Circular; and |
(b) | to transact such other business as may properly come before the Debtholders Meeting or any postponement or adjournment thereof. |
Capitalized terms used herein, and not otherwise defined herein, have the meanings set forth in the Circular. Additional information on the above matters can be found in the Circular.
Pursuant to the Interim Order, the record date for entitlement to vote at the Debtholders Meeting is 5:00 p.m. on March 6, 2020 (the Record Date). All Debtholders will vote as one class. Each Debtholder will have one vote for each $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date. For the purposes of determining the principal amount of CFA Loans that a CFA Lender is entitled to vote at the Debtholders Meeting, the CFA Loans will be converted to Canadian Dollars based on the Bank of Canada daily U.S. Dollar to Canadian Dollar exchange rate in effect on the Record Date, being US$1:$1.3241. Pursuant to the Interim Order, the quorum for the Debtholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Debtholders Meeting. Subject to any further order of the Court, the vote required to pass the Debtholders Arrangement Resolution is the affirmative vote of at least 662⁄3% of the votes cast by Debtholders present in person or by proxy at the Debtholders Meeting and entitled to vote on the Debtholders Arrangement Resolution.
In addition to Debtholder approval, the implementation of the Arrangement is subject to the approval of the Court, receipt of any additional approvals required by the Court, and the satisfaction or waiver of the other conditions set out in the plan of arrangement (the Plan).
In addition to the Debtholders Arrangement Resolution, copies of the Plan, the Notice of Application, the Interim Order and the Description of Notes, are attached to the Circular as Appendix C, Appendix E, Appendix F and Appendix H, respectively.
1
The Circular, this notice, the form of Noteholder VIEF (in the case of Noteholders), and the form of CFA Lender Voting and Election Form (in the case of CFA Lenders) are being distributed to Debtholders as at the Record Date and are available online under the Corporations profile on SEDAR at www.sedar.com.
If you are a Noteholder and receive these materials through your broker, custodian, investment dealer, nominee, bank, trust company or other intermediary (an Intermediary), you should follow the instructions provided by such Intermediary in order to vote your Existing Notes and be eligible to receive certain additional consideration described in the Circular (if applicable).
All Debtholders are requested to vote in accordance with the instructions provided in the Noteholder VIEF or CFA Lender Voting and Election Form, as applicable, using the applicable method, as set forth therein and described below. In order to cast a vote at the Debtholders Meeting:
(a) | beneficial holders of the Existing Notes must submit to their respective Intermediaries at or prior to 5:00 p.m. (Toronto time) on April 7, 2020, or such later date as may be agreed by the Applicants in the event that the Debtholders Meeting is postponed or adjourned (the Voting Deadline), or such earlier deadline as an Intermediary may advise the applicable beneficial holder of the Existing Notes, their duly completed Noteholder VIEF (or such other documentation or instruction as the Intermediary may customarily request for purposes of obtaining voting instructions); and |
(b) | the CFA Lenders must submit to the Proxy, Information and Exchange Agent, at or prior to the Voting Deadline, their duly completed CFA Lender Voting and Election Form (or such other documentation or instruction as the Proxy, Information and Exchange Agent may customarily request for purposes of properly obtaining voting instructions), |
in each case in accordance with the instructions set forth in the Noteholder VIEF or CFA Lender Voting and Election Form, as applicable, and any instructions provided by your Intermediary or the Proxy, Information and Exchange Agent, as applicable.
As described further in the Circular, Noteholders as at the Record Date that submit a vote in favour of the Debtholders Arrangement Resolution on or prior to the early consent deadline of 5:00 p.m. (Toronto time) on March 27, 2020 (the Early Consent Deadline), as such date may be extended by the Applicants (each, an Early Consenting Noteholder), will be entitled to receive on the Effective Date (conditional on completion of the Arrangement and subject to the terms of the Plan) a cash payment in an amount equal to 3% of the principal amount of Existing Notes voted by such Early Consenting Noteholder in favour of the Plan prior to the Early Consent Deadline and held by such Early Consenting Noteholder as at the Effective Date as additional consideration in exchange for its Existing Notes.
Debtholders may attend the Debtholders Meeting in person or may appoint another person as proxyholder. The Noteholder VIEF and the CFA Lender Voting and Election Form nominate David Pathe, President and Chief Executive Officer of Sherritt or Andrew Snowden, Senior Vice President & Chief Financial Officer of Sherritt, and either one of them, with full power of substitution as proxyholders. A Debtholder may appoint another person as his, her or its proxyholder by inserting the name of such person in the space provided in the Noteholder VIEF or CFA Lender Voting and Election Form, as applicable, and following the instructions contained therein. Persons appointed as proxyholders need not be Debtholders. Debtholders requiring assistance should contact the Proxy, Information and Exchange Agent at the contact information provided in the Circular.
2
The Board unanimously recommends that Debtholders VOTE FOR the Debtholders Arrangement Resolution.
DATED at Toronto, Ontario, this 6th day of March, 2020.
SHERRITT INTERNATIONAL CORPORATION
BY ORDER OF THE BOARD OF DIRECTORS
(signed) Ward Sellers |
Senior Vice President, General Counsel and Corporate Secretary |
Sherritt International Corporation |
3
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO: | Holders of common shares (Common Shares) of Sherritt International Corporation (Sherritt or the Corporation) |
NOTICE IS HEREBY GIVEN that a special meeting (the Shareholders Meeting) of the holders of the Common Shares (the Shareholders) will be held at the offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario, on April 9, 2020, at 10:30 a.m. (Toronto time) pursuant to an order (the Interim Order) of the Ontario Superior Court of Justice (Commercial List) (the Court) dated February 26, 2020, for the following purposes:
(a) | to consider and, if deemed advisable, to pass, with or without variation, a special resolution (the Stated Capital Reduction Resolution), the full text of which is set out in Appendix B to the accompanying management information circular (the Circular), approving a reduction of the stated capital of the Common Shares, as more particularly described in the Circular; and |
(b) | to transact such other business as may properly come before the Shareholders Meeting or any postponement or adjournment thereof. |
Capitalized terms used herein, and not otherwise defined herein, have the meanings set forth in the Circular. Additional information on the above matters can be found in the Circular.
Pursuant to the Interim Order, the record date for entitlement to vote at the Shareholders Meeting is 5:00 p.m. on March 6, 2020 (the Record Date). Each Shareholder will have one vote for each Common Share as at the Record Date. Pursuant to the Interim Order, the quorum for the Shareholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Shareholders Meeting. Subject to any further order of the Court, the vote required to pass the Stated Capital Reduction Resolution is the affirmative vote of at least 662⁄3% of the votes cast by Shareholders present in person or by proxy at the Shareholders Meeting and entitled to vote on the Stated Capital Reduction Resolution.
The Stated Capital Reduction to be approved by Shareholders is a preliminary step to the implementation of the Transaction, described in further detail in the Circular, which would reduce the Corporations total outstanding debt by approximately $414 million and reduce annual cash interest payments by approximately $19 million by, among other things, (i) exchanging the Corporations existing note obligations in the aggregate principal amount of approximately $588 million, plus all accrued and unpaid interest, for New Second Lien Notes in the aggregate principal amount of approximately $319 million (on the basis of an Effective Date of April 30, 2020) and (ii) exchanging Sherritts obligations in respect of the partner loans relating to the Ambatovy Joint Venture in the aggregate principal amount of approximately $145 million for, at the election of each CFA Lender, either (i) its pro rata share of Sherritts interest in the Ambatovy Joint Venture, or (ii) Amended CFA Loans with no further recourse as against Sherritt, all as further discussed in the Circular. The Transaction would also result in an extension of the maturity of the Corporations note obligations from 2021, 2023 and 2025, respectively, under its existing notes to 2027 under the New Second Lien Notes. The Stated Capital Reduction will not impact the Corporations current number of Common Shares issued and outstanding.
The Circular, this notice, the form of Shareholder proxy and the Shareholder voting instruction form are being distributed to Shareholders as at the Record Date and are available online under the Corporations profile on SEDAR at www.sedar.com.
If you receive these materials through your broker, custodian, investment dealer, nominee, bank, trust company or other intermediary (an Intermediary), you should follow the instructions provided by such Intermediary in order to vote your Common Shares.
All Shareholders are requested to vote in accordance with the instructions provided in the appropriate proxy or voting instruction form, as applicable, using one of the available methods described therein. In order to be effective, proxies and voting instruction forms must be received by the Corporations transfer agent, prior to 5:00 p.m.
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(Toronto time) on April 7, 2020, or, if the Shareholders Meeting is postponed or adjourned, not less than 48 hours (excluding Saturdays, Sundays and holidays) prior to any adjournments or postponements thereof.
Registered holders of Common Shares (Registered Shareholders) can submit their proxy:
| By mail: AST Trust Company (Canada), Proxy Department, P.O. Box 721, Agincourt, Ontario, M1S 0A1 |
| By fax: 1-866-781-3111 (toll free) or 416-368-2502 (within the 416 area code) |
| By email: proxyvote@astfinancial.com |
| By telephone: Using a touch-tone telephone, call toll free 1-888-489-7352 (Bilingual) |
| By Internet: www.astvotemyproxy.com |
If you receive more than one proxy form because you own Common Shares registered in different names or addresses, each proxy form should be completed and returned.
Registered Shareholders may attend the Shareholders Meeting in person or may appoint another person as proxyholder. The form of Shareholder proxy nominates David Pathe, President and Chief Executive Officer of Sherritt or Andrew Snowden, Senior Vice President & Chief Financial Officer of Sherritt, and either one of them with full power of substitution as proxyholders. A Shareholder may appoint another person as his, her or its proxyholder by inserting the name of such person in the space provided in the form of proxy, or by completing another valid form of proxy. Persons appointed as proxyholders need not be Shareholders. Shareholders requiring assistance should contact the Proxy, Information and Exchange Agent.
The Board unanimously recommends that Shareholders VOTE FOR the Stated Capital Reduction Resolution.
DATED at Toronto, Ontario, this 6th day of March, 2020.
SHERRITT INTERNATIONAL CORPORATION
BY ORDER OF THE BOARD OF DIRECTORS
(signed) Ward Sellers |
Senior Vice President, General Counsel and Corporate Secretary Sherritt International Corporation |
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IMPORTANT INFORMATION
General
This Circular is furnished in connection with the solicitation of proxies by and on behalf of Management to be used at the Meetings of each of the Debtholders and the Shareholders to be held at the offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario on April 9, 2020 at 10:00 a.m. and 10:30 a.m. (Toronto time), respectively, and, at any adjournment or postponement thereof, for the purposes set forth in the accompanying Notices of Meeting for each of the Debtholders and the Shareholders.
No person has been authorized to give any information or make any representation in connection with the Transaction or any other matters to be considered at the Meetings other than those contained in this Circular and, if given or made, any such information or representation must not be relied upon as having been authorized and should not be relied upon in making a decision as to how to vote on the Transaction or the other matters set forth herein.
All summaries of, and references to, the Transaction in this Circular are qualified in their entirety by reference to the complete text of the Plan, a copy of which is attached as Appendix C to this Circular. You are urged to carefully read the full text of the Plan.
All information contained in this Circular is given as of March 6, 2020 unless otherwise specifically stated. All capitalized terms used in this Circular but not otherwise defined herein have the meanings set forth under Glossary of Terms.
Unless otherwise stated, all references in this Circular to sums of money are expressed in, and all payments provided for herein shall be made in, Canadian Dollars.
EXCHANGE RATES
The following table sets forth, for each of the periods indicated, the end-of-period Bank of Canada daily U.S. Dollar to Canadian Dollar exchange rate. The exchange rate on March 6, 2020, as quoted by Bank of Canada, for the conversion of U.S. Dollars to Canadian Dollars, was US$1.00 equals $1.3241.
Year Ended December 31, | ||||||||
2018 | 2019 | |||||||
High |
$ | 1.3642 | $ | 1.3600 | ||||
Low |
$ | 1.2288 | $ | 1.2988 | ||||
Average |
$ | 1.2957 | $ | 1.3269 | ||||
End of Period |
$ | 1.3642 | $ | 1.2988 |
For the purposes of determining the principal amount of CFA Loans that a CFA Lender is entitled to vote at the Debtholders Meeting, the CFA Loans will be converted to Canadian Dollars based on the Bank of Canada daily U.S. Dollar to Canadian Dollar exchange rate in effect on the Record Date of March 6, 2020.
The foregoing rates may differ from the actual rates used in the preparation of Sherritts financial statements and other financial information referenced in this Circular. The Corporations inclusion of these exchange rates is not meant to suggest that the U.S. Dollar amounts actually represent such Canadian Dollar amounts or that such amounts could have been converted into Canadian Dollars at any particular rate, if at all.
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DOCUMENTS INCORPORATED BY REFERENCE
The following documents which have been publicly filed on SEDAR at www.sedar.com or with the securities commission or similar regulatory authority in each of the provinces and territories of Canada, are specifically incorporated by reference into, and form an integral part of this Circular:
(a) | the annual information form for the Corporation dated February 13, 2019 for the fiscal year ended December 31, 2018 (the 2018 AIF); |
(b) | the management information circular dated May 24, 2019 in respect of the Corporations annual and special meeting of shareholders held on June 24, 2019 (the 2019 AGM Circular); |
(c) | the consolidated financial statements of the Corporation for the fiscal year ended December 31, 2019 and 2018 and Managements report and the independent auditors report thereon (the 2019 Financial Statements); |
(d) | the Managements Discussion and Analysis of the Corporation for the fiscal year ended December 31, 2019 (the 2019 MD&A); and |
(e) | the material change report issued by the Corporation on February 27, 2020 with respect to the Transaction. |
Material change reports (other than confidential reports), business acquisition reports, interim and annual financial statements and all other documents of the type referred to above after the date of this Circular and before completion or withdrawal of the Transaction will be deemed to be incorporated by reference into this Circular.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for the purposes of this Circular to the extent that a statement contained in this Circular or in any subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded will not constitute a part of this Circular, except as so modified or superseded. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of such a modifying or superseding statement will not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made. Copies of documents incorporated herein by reference may be obtained upon request without charge from the Corporate Secretary of Sherritt at Bay Adelaide Centre, East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 and are also available electronically on SEDAR at www.sedar.com.
FORWARD-LOOKING STATEMENTS
This Circular and the documents incorporated by reference herein contain forward looking statements within the meaning of applicable U.S. Securities Laws and forward-looking information within the meaning of applicable Canadian Securities Laws (collectively, forward-looking statements). These forward-looking statements are made as of the date of this Circular or, in the case of documents incorporated by reference herein, as of the date of such documents.
Forward-looking statements can generally be identified by the use of statements that include such words as believe, expect, anticipate, intend, plan, forecast, likely, may, will, could, should, suspect, outlook, projected, continue or other similar words or phrases. Specifically, forward-looking statements in this document and the documents incorporated by reference herein include but are not limited to, statements respecting certain expectations regarding capital costs and expenditures; capital project completion dates; sales volumes; revenue, costs and earnings; sufficiency of working capital and capital project funding, completion of
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development and exploration wells; restructuring plan cost savings; and amounts of certain joint venture commitments.
Forward-looking statements are not based on historic facts, but rather on current expectations, assumptions and projections about future events, including commodity and product prices and demand; the level of liquidity and access to funding; share-price volatility; realized prices for production; earnings and revenues; development and exploration wells and enhanced oil recovery in Cuba; environmental rehabilitation provisions; availability of regulatory approvals; compliance with applicable environmental laws and regulations; debt repayments; collection of accounts receivable; the timing of, and matters to be considered at, the meetings of Debtholders and Shareholders; the Corporations ability to satisfy its financial obligations in future period; the Corporations intention to reduce its debt and annual interest payments; the Corporations intention to realign its capital structure and the timing thereof; the Corporations filing with the Court; failure to timely satisfy the conditions of the Transaction or to otherwise complete the Transaction; the expected process for implementing the Transaction; the effect of the Transaction; the Corporations corporate governance practices and policies; and certain corporate objectives, goals and plans for 2019 and 2020. By their nature, forward-looking statements require the Corporation to make assumptions and are subject to inherent risks and uncertainties. There is significant risk that predictions, forecasts, conclusions or projections will not prove to be accurate, that those assumptions may not be correct and that actual results may differ materially from such predictions, forecasts, conclusions or projections.
These assumptions should be considered carefully by Debtholders and Shareholders. Debtholders and Shareholders are cautioned not to place undue reliance on the forward-looking statements or the assumptions on which our forward-looking statements are based. Debtholders and Shareholders are advised to carefully review and consider the risk factors identified under the heading Risk Factors herein, in the 2018 AIF under the heading Risk Factors, which is incorporated by reference into this Circular, and in the other documents incorporated by reference herein for a discussion of the factors that could cause the Corporations actual results, performance and achievements to be materially different from any anticipated future results, performance or achievements expressed or implied by the forward-looking statements. Debtholders and Shareholders are further cautioned that the foregoing list of assumptions is not exhaustive and it is recommended that Debtholders and Shareholders consult the more complete discussion of the Corporations business, financial condition and prospects that is included in the documents incorporated by reference herein. Although the Corporation believes that the assumptions on which the forward-looking statements are based are reasonable, based on the information available to the Corporation on the date such statements were made, no assurances can be given as to whether these assumptions will prove to be correct. The forward-looking statements contained in this Circular and the documents incorporated by reference herein are expressly qualified by this cautionary statement. The forward-looking information and statements contained in this document and the documents incorporated by reference herein are made as of the date hereof and the Corporation undertakes no obligation to update publicly or revise any oral or written forward-looking information or statements, whether as a result of new information, future events or otherwise, except as required by applicable securities laws. The forward-looking information and statements contained herein are expressly qualified in their entirety by this cautionary statement.
NOTICE TO DEBTHOLDERS IN THE UNITED STATES
THE SECURITIES ISSUABLE IN CONNECTION WITH THE TRANSACTION HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION OR SECURITIES REGULATORY AUTHORITIES IN ANY STATE OF THE UNITED STATES; AND NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY SUCH STATE REGULATORY AUTHORITY HAS PASSED UPON THE ADEQUACY OR ACCURACY OF THIS CIRCULAR. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The issuance and distribution of New Second Lien Notes and the related New Notes Guarantees under the Plan have not been registered under the U.S. Securities Act. The New Second Lien Notes and related New Notes Guarantees are being issued and distributed in reliance on the exemption from registration set forth in Section 3(a)(10) of the U.S. Securities Act (and similar exemptions under applicable state securities laws).
For more information, including information regarding transfer restrictions under applicable U.S. Securities Laws, see Securities Law MattersCertain United States Securities Law Matters.
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The Arrangement is being made in accordance with the disclosure requirements of Canada. Debtholders should be aware that such requirements are different from those of the United States. The financial statements of Corporation included or incorporated by reference herein have been prepared in accordance with International Financial Reporting Standards and may not be comparable to the financial statements of United States companies.
Debtholders in the United States should be aware that the Transaction as described herein may have tax consequences both in the United States and Canada. This Circular does not address any tax considerations of the Transaction other than certain Canadian federal income tax considerations. Debtholders are encouraged to consult their tax advisors.
The solicitation of consents contemplated hereby are being effected in accordance with Canadian corporate and securities laws. The proxy solicitation rules under the U.S. Securities Exchange Act are not applicable to the Corporation or this solicitation. Debtholders should be aware that proxy solicitation and disclosure requirements under Canadian laws are different from those requirements under U.S. Securities Laws.
It may be difficult for you to enforce your rights and any claim you may have arising under U.S. Securities Laws, since the Corporation is located in Canada, and some or all of its officers and directors may be residents of Canada. You may not be able to sue a foreign corporation or its officers or directors in a foreign court for violations of U.S. Securities Laws. It may be difficult to compel a foreign corporation and its affiliates to subject themselves to a U.S. courts judgment.
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GLOSSARY OF TERMS
Unless the context otherwise requires, when used in this Circular the following terms shall have the meanings set forth below. Words importing the singular number shall include the plural and vice versa, and words importing any gender shall include all genders.
2016 Notes Extension Transaction has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
2018 AIF has the meaning ascribed thereto under the heading Documents Incorporated by Reference;
2019 AGM Circular has the meaning ascribed thereto under the heading Documents Incorporated by Reference;
2019 Financial Statements has the meaning ascribed thereto under the heading Documents Incorporated by Reference;
2019 MD&A has the meaning ascribed thereto under the heading Documents Incorporated by Reference;
7.50% Debentures has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
7.875% Notes has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
8.00% Debentures has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Additional CFA Loans has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Aggregate CFA Loans has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Alternative CFA Lender Transaction has the meaning ascribed thereto under the heading Treatment of CFA Lenders Alternative CFA Lender Transaction;
Amalgamated Sherritt has the meaning ascribed thereto under the heading Arrangement Steps;
Amalgamation means the amalgamation of Sherritt and Sherritt Amalco to form Amalgamated Sherritt;
Ambatovy Debt means all present or future indebtedness or other obligations owing to MMI by AMSA and by DMSA in respect of the Shareholder Subordinated Loans (as defined in the Ambatovy Shareholders Agreement), including all accrued and unpaid interest in respect thereof;
Ambatovy Interests means, collectively, the Ambatovy Debt and the Ambatovy Shares;
Ambatovy Interests Electing CFA Lender means a CFA Lender that made an Ambatovy Interests Exchange Election pursuant to the Interim Order;
Ambatovy Interests Exchange Election means, in respect of a CFA Lender, an election made by such CFA Lender pursuant to the Interim Order to receive its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt as the consideration in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims;
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Ambatovy Joint Venture has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Ambatovy Partners has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Ambatovy Restructuring has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Ambatovy Senior Lenders has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Ambatovy Senior Project Financing has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Ambatovy Shareholders Agreement means the fourth amendment and restatement of the shareholders agreement dated December 11, 2017, as originally dated October 18, 2006 and as previously amended and restated on February 21, 2008, June 24, 2009, and May 29, 2012, among Sherritt, the CFA Guarantor, Korea Resources Corporation, Sumitomo Corporation, Summit Ambatovy Mineral Resources Investment B.V., Ambatovy Holdings Limited, DMSA and AMSA;
Ambatovy Shares means, collectively, the AMSA Shares and the DMSA Shares;
Amended CFA Loan means a loan on substantially similar terms as the existing CFA Loans, subject to the CFA Loan Amended Terms;
Amended CFA Loan Electing CFA Lender means a CFA Lender that made an Amended CFA Loan Election pursuant to the Interim Order, provided that if a CFA Lender does not make an election pursuant to the Interim Order, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender under the Plan;
Amended CFA Loan Election means, in respect of a CFA Lender, an election made, or deemed to have been made, by such CFA Lender pursuant to the Interim Order to receive an Amended CFA Loan(s) as the consideration in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims;
AMSA means Ambatovy Minerals S.A.;
AMSA Shares means all of the shares in the capital of AMSA held by the CFA Guarantor;
Applicants means, collectively, Sherritt and Sherritt Amalco;
Arrangement means the arrangement effected under Section 192 of the CBCA on the terms and subject to the conditions set forth in the Plan, subject to any amendments, modifications and/or supplements made thereto in accordance with the Arrangement Agreement and the Plan;
Arrangement Agreement means the arrangement agreement dated February 25, 2020 among the Applicants, a copy of which is attached (without schedules) as Appendix D to this Circular, as it may be amended, restated, modified and/or supplemented from time to time;
Articles of Arrangement means the articles of arrangement of the Applicants in respect of the Arrangement, in form and substance satisfactory to the Applicants, that are required to be filed with the CBCA Director in order for the Arrangement to become effective on the Effective Date;
BIA has the meaning ascribed thereto under the heading Risk Factors;
Board or Board of Directors means the board of directors of Sherritt;
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Broadridge means, collectively, Broadridge Investor Communications Corporation and Broadridge Investor Communications Inc.;
Canadian Dollars or $ means the lawful currency of Canada;
Canadian Holder has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada;
Canadian Securities Laws means, collectively, and, as the context may require, the applicable securities laws of each of the provinces of Canada, and the respective regulations and rules made under those securities laws together with all applicable policy statements, instruments, blanket orders and rulings of the Canadian securities commissions and all discretionary orders or rulings, if any, of the Canadian securities commissions made in connection with the Transaction together with applicable published policy statements of the Canadian securities administrators, as the context may require.
CBCA means the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended;
CBCA Director means the Director appointed under Section 260 of the CBCA;
CBCA Opinion has the meaning ascribed thereto under the heading Reasons for Transaction Paradigm Capital Opinions and is included in the Paradigm Capital Opinions attached as Appendix G to this Circular;
CBCA Proceedings means the proceedings commenced by the Applicants under the CBCA on February 26, 2020 in connection with the Plan;
CCAA has the meaning ascribed thereto under the heading Risk Factors;
CDS means the CDS Clearing and Depository Services Inc. and its successors and assigns;
CDSX means the clearing and settlement system administered by CDS;
Certificate of Arrangement means the certificate giving effect to the Arrangement, to be issued by the CBCA Director pursuant to section 192(7) of the CBCA upon receipt of the Articles of Arrangement in respect of the Applicants in accordance with section 262 of the CBCA;
CFA Guarantor or MMI means Madagascar Mineral Investments Ltd.;
CFA Lender Claims means all outstanding Obligations owing by any Person, whether as issuer, guarantor or otherwise, with respect to the CFA Loans, the CFA Loan Agreements or any of the other CFA Loan Documents as at the Effective Date, including, without limitation, all outstanding principal, accrued and unpaid interest at the applicable contract rate, and any fees and other payments (including any applicable prepayment and/or make-whole amounts) pursuant to or in connection with the CFA Loan Documents as at the Effective Date;
CFA Lender Pro Rata Share means, with respect to each CFA Lender, the percentage that the principal amount of CFA Loans held by such CFA Lender bears to the total principal amount of CFA Loans held by all CFA Lenders immediately prior to the Effective Time;
CFA Lender Voting and Election Form means the CFA Lender proxy, voting and election form in connection with the Debtholders Meeting;
CFA Lenders means, collectively, Summit Ambatovy Mineral Resources Investment B.V. as lender, Sumitomo Corporation as lender guarantor, The Export-Import Bank of Korea as lender, and Korea Resources Corporation as take-out financier, and any of their respective permitted successors or assigns, and CFA Lender means any one of them, as applicable;
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CFA Loan Agreements means, collectively, (a) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, The Export-Import Bank of Korea as lender and Korea Resources Corporation as take-out financier; (b) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, Summit Ambatovy Mineral Resources Investment B.V. as lender and Sumitomo Corporation as lender guarantor, and (c) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, Summit Ambatovy Mineral Resources Investment B.V. as lender and Sumitomo Corporation as lender guarantor, as previously assigned to Summit Ambatovy Mineral Resources Investment B.V. by SNC-Lavalin Inc.;
CFA Loan Amended Terms means (i) the CFA Guarantor shall be the sole borrower under the Amended CFA Loan(s); (ii) Sherritt shall have no obligations in respect of the Amended CFA Loan(s) and there shall be no recourse whatsoever against Sherritt in respect of the Amended CFA Loan(s); and (iii) the CFA Lender in respect of an Amended CFA Loan shall have the right, for up to 12 months following the Effective Date, to direct the CFA Guarantor to transfer such CFA Lenders CFA Lender Pro Rata Share of the Ambatovy Shares and the Ambatovy Debt held by the CFA Guarantor as directed by such CFA Lender in consideration for an amount equal to the amount owing under such CFA Lenders Amended CFA Loan, which will be satisfied through the full and final set off, settlement, repayment and exchange of the CFA Lenders Amended CFA Loan, as such terms may be amended, modified and/or supplemented pursuant to the Plan;
CFA Loan Documents means, collectively, the CFA Loan Agreements, the other Finance Documents (as defined under the CFA Loan Agreements) and all other documentation including, without limitation, all guarantee and security documentation, related to the CFA Loans;
CFA Loans means the existing loans made by the CFA Lenders, as applicable, under the CFA Loan Agreements;
CFA Note has the meaning ascribed thereto under the heading Arrangement Steps;
Circular means this management information circular of Sherritt dated March 6, 2020, including all appendices hereto, as it may be amended, modified and/or supplemented from time to time, subject to the terms of the Interim Order or other Order of the Court;
Claim means any right or claim of any Person that may be asserted or made in whole or in part against the applicable Persons, or any of them, in any capacity, whether or not asserted or made, in connection with any indebtedness, liability or obligation of any kind whatsoever, and any interest accrued thereon or costs payable in respect thereof, whether at law or in equity, including by reason of the commission of a tort (intentional or unintentional), by reason of any breach of contract or other agreement (oral or written), by reason of any breach of duty (including, any legal, statutory, equitable or fiduciary duty), by reason of any right of setoff, counterclaim or recoupment, or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and together with any security enforcement costs or legal costs associated with any such claim, and whether or not any indebtedness, liability or obligation is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present or future, known or unknown, by guarantee, warranty, surety or otherwise, and whether or not any right or claim is executory or anticipatory in nature, including any claim made or asserted against the applicable Persons, or any of them, through any affiliate, subsidiary, associated or related Person, or any right or ability of any Person to advance a claim for an accounting, reconciliation, contribution, indemnity, restitution or otherwise with respect to any matter, grievance, action (including any class action or proceeding before an administrative or regulatory tribunal), cause or chose in action, whether existing at present or commenced in the future;
Collateral has the meaning ascribed thereto in the Description of Notes;
Collateral Agent has the meaning ascribed thereto in the Description of Notes;
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Collateral Documents has the meaning ascribed thereto in the Description of Notes;
Common Shares means common shares in the capital of Sherritt or Amalgamated Sherritt, as the context requires;
Consent Agreement has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Consent Notes means, in respect of an Early Consenting Noteholder, the Existing Notes held by such Early Consenting Noteholder in respect of which votes have been validly cast in favour of the Plan by the Early Consent Deadline pursuant to the Interim Order and in respect of which such vote in favour of the Plan has not been changed or withdrawn, and/or the Existing Notes held by such Early Consenting Noteholder in respect of which such Early Consenting Noteholder has otherwise supported the Plan, in each case in a manner acceptable to the Applicants;
Court means the Ontario Superior Court of Justice (Commercial List);
Cuban Receivables has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Cuban Receivables Agreement has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Debt means, collectively, the Obligations in respect of the Existing Notes and the CFA Loans;
Debt Documents means, collectively, the Existing Note Documents and the CFA Loan Documents;
Debtholder Meeting Packages means, collectively, (a) this Circular, the Debtholders Notice and the Noteholder VIEF to be sent to the Noteholders, and (b) this Circular, the Debtholders Notice and the CFA Lender Voting and Election Form to be sent to the CFA Lenders;
Debtholders means, collectively, the Noteholders and the CFA Lenders;
Debtholders Arrangement Resolution means the resolution of the Debtholders, inter alia, approving the Arrangement to be considered and voted upon at the Debtholders Meeting, the full text of which is attached as Appendix A to this Circular;
Debtholders Meeting means the meeting of Debtholders as of the Record Date called and held pursuant to the Interim Order for the purpose of considering and voting on the Debtholders Arrangement Resolution and to consider and vote on such other matters as may properly come before such meeting, and includes any adjournment(s) or postponement(s) of such meeting;
Debtholders Notice means the notice of the Debtholders Meeting;
Description of Notes has the meaning ascribed thereto under the heading Terms of the New Second Lien Notes and the New Notes Indenture;
DMSA means Dynatec Madagascar S.A.;
DMSA Shares means all of the shares in the capital of DMSA held by the CFA Guarantor;
Dynatec has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Early Consent Date means March 27, 2020, or such later date as the Applicants may determine;
Early Consent Deadline means 5:00 p.m. (Toronto time) on the Early Consent Date, or such later time as the Applicants may determine;
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Early Consenting Noteholder means a Noteholder who, by the Early Consent Deadline, has voted in favour of the Plan or has otherwise supported the Plan, in each case in a manner acceptable to the Applicants, and provided that in each case such Noteholder holds its Consent Notes as at the Effective Date;
EBITDA has the meaning ascribed thereto in the Revolving Bank Facility Agreement;
Effective Date means the date shown on the Certificate of Arrangement issued by the CBCA Director;
Effective Time means such time on the Effective Date as may be specified by the Applicants as the time at which the Arrangement implementation steps set forth in the Plan shall be deemed to commence;
Energas has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Excess Cash Flow has the meaning ascribed thereto in the Description of Notes;
Existing 2021 Notes means the 8.00% Senior Unsecured Debentures due November 15, 2021 issued by Sherritt under the Existing Notes Indenture;
Existing 2023 Notes means the 7.50% Senior Unsecured Debentures due September 24, 2023 issued by Sherritt under the Existing Notes Indenture;
Existing 2025 Notes means the 7.875% Senior Unsecured Notes due October 11, 2025 issued by Sherritt under the Existing Notes Indenture;
Existing Indenture Trustee means Computershare Trust Company of Canada as trustee under the Existing Notes Indenture, and any successor thereof;
Existing Note Documents means, collectively, the Existing Notes Indenture, the Existing Notes, the Existing Notes Guarantees and all other documentation related to the Existing Notes;
Existing Noteholder Claims means all outstanding Obligations owing by any Person, whether as issuer, guarantor or otherwise, with respect to the Existing Notes, the Existing Notes Indenture or any other Existing Note Documents as at the Effective Date, including, without limitation, all outstanding principal, accrued and unpaid interest at the applicable contract rate, and any fees and other payments (including any applicable prepayment and/or make-whole amounts) pursuant to or in connection with the Existing Note Documents as at the Effective Date;
Existing Notes means, collectively, the Existing 2021 Notes, the Existing 2023 Notes and the Existing 2025 Notes;
Existing Notes Guarantees means, collectively, each Note Guarantee (as defined in the Existing Notes Indenture);
Existing Notes Guarantors means, collectively, Sherritt International Oil and Gas Limited, Sherritt International (Bahamas) Inc., Sherritt Power (Bahamas) Inc., SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), Sherritt Utilities Inc., Canada Northwest Oils (Europe) B.V., and CNWL Oil (Espana) S.A.;
Existing Notes Indenture means the second amended and restated indenture in respect of the Existing Notes dated as of July 29, 2016 among Sherritt, the Existing Notes Guarantors and the Existing Indenture Trustee, as it may be further amended, restated, modified and/or supplemented from time to time prior to the Effective Date;
Existing Revolving Bank Facility Collateral has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Fairness Opinion has the meaning ascribed thereto under the heading Reasons for Transaction Paradigm Capital Opinions and is included in the Paradigm Capital Opinions attached as Appendix G to this Circular;
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Final Order means the Order of the Court approving the Arrangement under Section 192 of the CBCA, which shall include such terms as may be necessary or appropriate to give effect to the Arrangement and the Plan, in form and substance satisfactory to the Applicants, as such Order may be amended from time to time in a manner acceptable to the Applicants;
Form 54-101F7 has the meaning ascribed thereto under the heading Non-Registered Holders of Common Shares and Existing Notes;
Governmental Entity means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them, or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;
Guarantors means, collectively, the Existing Notes Guarantors and the CFA Guarantor;
Holders has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations;
Intercreditor Agreement has the meaning ascribed thereto in the Description of Notes;
Interim Order means the interim Order of the Court granted on February 26, 2020 pursuant to Section 192 of the CBCA, which, among other things, approves the calling of, and the date for, the Meetings, as such Order may be amended from time to time in a manner acceptable to the Applicants, a copy of which is attached as Appendix F to this Circular;
Intermediary means a broker, custodian, investment dealer, nominee, bank, trust company or other intermediary;
In-Person Holder means a Debtholder or Shareholder who wishes to vote in person at a Meeting and follows the required procedures to do so;
Law means any law, statute, constitution, treaty, convention, code, injunction, order, decree, consent decree, judgment, rule regulation, ordinance or other pronouncement having the effect of law whether in Canada or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity, and includes any securities or stock exchange rules or regulations;
Management means the management of the Corporation;
March 2019 Ambatovy Non-Funding has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Meetings means, collectively, (a) the Debtholders Meeting, and (b) the Shareholders Meeting;
Minimum Cash Balance Requirement has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Moa Joint Venture has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
NBF means National Bank Financial Inc., as financial advisor to Sherritt;
New Indenture Trustee means AST Trust Company (Canada), as trustee under the New Notes Indenture, or such other indenture trustee under the New Notes Indenture as determined by the Applicants by the Effective Date;
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New Note Documents means, collectively the New Notes Indenture, the New Second Lien Notes, the New Notes Guarantees and the new security documentation to be entered into pursuant to the New Notes Indenture, in each case, in form acceptable to the Applicants and substantially on the terms as described in the Circular, as such terms may be amended pursuant to the Plan;
New Notes Guarantees means the new guarantees to be provided by the New Notes Guarantors pursuant to the New Notes Indenture;
New Notes Guarantors means, collectively, the Existing Notes Guarantors, 672539 Alberta Ltd., 672540 Alberta Ltd., SI Finance Ltd., Dynatec Technologies Ltd., 1683740 Alberta Ltd., OG Finance Inc., Power Finance Inc., SBCT Logistics Ltd., SIC Marketing Services (UK) Limited, The Cobalt Refinery Holding Company Ltd. and 672538 Alberta Ltd.;
New Notes Indenture means the indenture to be entered into on the Effective Date by Sherritt, the New Notes Guarantors and the New Indenture Trustee, substantially on the terms as described in the Circular, as such terms may be amended pursuant to the Plan, pursuant to which the New Second Lien Notes will be issued;
New Second Lien Notes means the new 8.50% second lien secured notes due 2027 to be issued by Sherritt pursuant to the New Notes Indenture and the Plan, which notes will be denominated in Canadian dollars, be issued in an aggregate principal amount equal to 50% of the aggregate principal amount of Existing Notes outstanding as at the Effective Date plus the aggregate amount of all accrued and unpaid interest outstanding in respect of the Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date, and be substantially on the terms described in the Circular, as such terms may be amended pursuant to the Plan;
Non-Registered Holders means, collectively, Noteholders and Shareholders who hold their Existing Notes and/or Common Shares in the name of an Intermediary;
Non-Resident Holder has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Not Resident in Canada;
Noteholder Early Consent Cash Consideration means, in respect of an Early Consenting Noteholder, a cash payment in an amount equal to 3% of the principal amount of Consent Notes held by such Early Consenting Noteholder as at the Effective Date, payable on the Effective Date on the terms of the Plan as partial consideration for the exchange of the Existing Notes pursuant to the Plan;
Noteholder VIEF means the Noteholder voting information and election form in connection with the Debtholders Meeting;
Noteholders means holders of Existing Notes;
Notes Exchange Ratio means 0.5;
Notice of Application means the Notice of Application filed by the Applicants in the CBCA Proceedings, a copy of which is attached as Appendix E to this Circular;
Notices of Meetings means, collectively, the Debtholders Notice, and the Shareholders Notice;
Obligations means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the applicable Debt Document;
Order means any order entered by the Court in the CBCA Proceedings;
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Original Notes has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Paradigm Capital means Paradigm Capital Inc., as the independent financial advisor to Sherritt and the Board of Directors;
Paradigm Capital Engagement Agreement has the meaning ascribed thereto under the heading Background to and Reasons for the Transaction;
Paradigm Capital Opinions means collectively, the Fairness Opinion and CBCA Opinion;
Person means any individual, firm, corporation, partnership, limited partnership, limited or unlimited liability company, joint venture, fund, association, organization, trust, trustee, executor, administrator, legal personal representative, estate, group, unincorporated association or organization, Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body, whether or not having legal status;
Persons Subject to U.S. Jurisdiction has the meaning ascribed thereto under Risk Factors Risk Factors Relating to the Transaction;
Plan means the plan of arrangement, substantially in the form attached as Appendix C to this Circular, and any amendments, restatements, modifications and/or supplements thereto made in accordance with the terms thereof;
Proxy, Information and Exchange Agent means Kingsdale Advisors;
PUC has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Stated Capital Reduction;
RDSP has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada Eligibility for Investment;
Record Date means 5:00 p.m. on March 6, 2020;
Registered Shareholders means Shareholders whose Common Shares are registered in their name;
Regulation S means Regulation S under the U.S. Securities Act;
Released Claims means, collectively, the matters that are subject to release and discharge pursuant to the terms of the Plan and as described herein under the heading Description of the Transaction and Certain Related Matters Plan of Arrangement Releases;
Released Parties means, collectively, the Sherritt Entities and each of their respective current and former directors, officers, employees, financial and other advisors, legal counsel and agents, including the Proxy, Information and Exchange Agent, each in their capacity as such;
Releases has the meaning ascribed thereto under the heading Description of the Transaction and Certain Related Matters Plan of Arrangement Releases;
RESP has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada Eligibility for Investment;
Restricted Subsidiaries has the meaning ascribed thereto in the Description of Notes;
Revolving Bank Facility means the senior revolving credit facility available under the Revolving Bank Facility Agreement;
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Revolving Bank Facility Agreement means the second amended and restated credit agreement among Sherritt as borrower, the guarantor subsidiaries party thereto as guarantors, National Bank of Canada as administrative agent, the lenders party thereto from time to time, and the other parties thereto, dated as of January 31, 2017, as amended, restated, modified and/or supplemented from time to time pursuant to its terms;
Revolving Bank Facility Amendments means the amendments to the existing Revolving Bank Facility as agreed between Sherritt and the Revolving Bank Facility Lenders to permit the implementation of the Plan and such other amendments as may be agreed between Sherritt and the Revolving Bank Facility Lenders;
Revolving Bank Facility Guarantors means the guarantors under the Revolving Bank Facility;
Revolving Bank Facility Lenders means the lenders under the Revolving Bank Facility;
RRIF has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada Eligibility for Investment;
RRSP has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada Eligibility for Investment;
Rule 144 means Rule 144 under the U.S. Securities Act;
SEC means the United States Securities and Exchange Commission;
Second Ranking Liens has the meaning ascribed thereto in the Description of Notes;
SEDAR means the System for Electronic Document Analysis and Retrieval;
Shareholder Meeting Package means, collectively, this Circular, the Shareholders Notice and the form of Shareholder proxy or voting instruction form (as applicable);
Shareholders means the holders of the Common Shares;
Shareholders Meeting means the meeting of the Shareholders as of the Record Date called and held pursuant to the Interim Order for the purpose of considering and voting on the Stated Capital Reduction Resolution and to consider and vote on such other matters as may properly come before such meeting, and includes any adjournment(s) or postponement(s) of such meeting;
Shareholders Notice means the notice of the Shareholders Meeting;
Sherritt or the Corporation means Sherritt International Corporation;
Sherritt Amalco means 11722573 Canada Ltd., a wholly-owned subsidiary of Sherritt;
Sherritt Business means, collectively, the Sherritt Entities metals business, oil & gas business, power business, fertilizer business and technology business;
Sherritt Entities means, collectively, the Applicants, the Guarantors and each of Sherritts other direct and indirect wholly-owned subsidiaries, and, for certainty, shall include Amalgamated Sherritt as the context requires;
Standstill Period has the meaning ascribed thereto under the heading Risk Factors Risks Related to the New Second Lien Notes;
Stated Capital Reduction has the meaning ascribed thereto under the heading Description of the Transaction and Certain Related Matters Stated Capital Reduction;
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Stated Capital Reduction Resolution means the special resolution of the Shareholders approving the Stated Capital Reduction, the full text of which is attached as Appendix B to this Circular;
T-3 Application has the meaning ascribed thereto under the heading Terms of the New Second Lien Notes and the New Notes Indenture;
Tax Act means the Income Tax Act (Canada) as amended and all regulations thereunder;
Tax Proposals has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations;
TFSA has the meaning ascribed thereto under the heading Certain Canadian Federal Income Tax Considerations Holders Resident in Canada Eligibility for Investment;
Transaction means the transactions contemplated by the Plan;
Transfer Agent means AST Trust Company (Canada), in its capacity as transfer agent of the Corporation, and any successor thereof;
TSX means the Toronto Stock Exchange;
United States or U.S. means the United States, as defined in Rule 902(l) under Regulation S;
Unrestricted Subsidiaries has the meaning ascribed thereto in the Description of Notes;
U.S. Dollars or US$ means the lawful currency of the United States of America;
U.S. Securities Act means the United States Securities Act of 1933, as amended;
U.S. Securities Exchange Act means the United States Securities Exchange Act of 1934, as amended;
U.S. Securities Laws means, collectively, the U.S. Securities Act and the U.S. Securities Exchange Act, including the rules and regulations of the SEC thereunder, and applicable U.S. state securities or blue sky laws;
U.S. Treasury has the meaning ascribed thereto under the heading Risk Factors;
U.S. Trust Indenture Act means the U.S. Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder, as promulgated or amended from time to time;
Voting Deadline means 5:00 p.m. (Toronto time) on April 7, 2020, or such later date as may be agreed by the Applicants in the event that the Meetings are postponed or adjourned; and
Voting Parties means, collectively, the Debtholders and Shareholders that are entitled to vote at the Debtholders Meeting or the Shareholders Meeting, respectively.
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SUMMARY OF CIRCULAR
The following is a summary of certain information contained elsewhere in this Circular. It is not, and is not intended to be, complete in itself. Debtholders and Shareholders are urged to carefully review this Circular, including the Appendices and the documents incorporated by reference, in each case in their entirety. Such parties should read this Circular carefully in its entirety to understand the terms of the Transaction as well as tax and other considerations that may be important to them in deciding whether to approve the Transaction and/or Stated Capital Reduction, as applicable. Such parties should also pay special attention to the Risk Factors section of this Circular. The following summary is qualified in its entirety by reference to the detailed information contained or incorporated by reference in this Circular. Capitalized terms used herein, and not otherwise defined, have the meanings set forth under Glossary of Terms.
Sherritt International Corporation
Sherritt is a corporation continued under the CBCA. Sherritts principal and head office is located at Bay Adelaide Centre, East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4. Sherritt is a leader in the mining and refining of nickel and cobalt from lateritic ores with projects, operations and investments in Canada, Cuba and Madagascar. The Corporation is the largest independent energy producer in Cuba, with extensive oil and power operations on the island. Sherritt licenses its proprietary technologies and provides metallurgical services to mining and refining operations worldwide. The Corporations common shares are listed on the TSX, trading under the symbol S. Additional information about the Corporation is set out in the 2018 AIF, the 2019 Financial Statements and related 2019 MD&A, and the 2019 AGM Circular.
See Information Concerning the Corporation.
The Meetings
Pursuant to the Interim Order, Sherritt has called the Debtholders Meeting to consider and, if deemed advisable, to pass, the Debtholders Arrangement Resolution, and has called the Shareholders Meeting to consider and, if deemed advisable, to pass, the Stated Capital Reduction Resolution. The Meetings will be held at the following places, dates and times:
Meeting |
Location |
Time & Date |
Matters to be Considered | |||
Debtholders Meeting |
Offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario, M5H 2S7 | 10:00 a.m. (Toronto time) on April 9, 2020 | Debtholders Notice | |||
Shareholders Meeting |
10:30 a.m. (Toronto time) on April 9, 2020 | Shareholders Notice |
Pursuant to the Interim Order: (i) a quorum at the Debtholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Debtholders Meeting; and (ii) a quorum for the Shareholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Shareholders Meeting.
See Information Concerning the Meetings and Quorum and Voting Requirements.
Voting at the Meetings
Entitlement to Vote and Attend
Pursuant to the Interim Order, those persons who are Debtholders on the Record Date are entitled to attend and vote at the Debtholders Meeting. All Debtholders will vote as one class. Each Debtholder will have one vote for each $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date in respect of the Debtholders Arrangement Resolution and any other matters to be considered at the
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Debtholders Meeting. For the purposes of determining the principal amount of CFA Loans that a CFA Lender is entitled to vote at the Debtholders Meeting, the CFA Loans shall be converted to Canadian Dollars based on the Bank of Canada daily U.S. Dollar to Canadian Dollar exchange rate in effect on the Record Date, being US$1:$1.3241.
Beneficial Noteholders shall be deemed to transfer their rights to vote on the Debtholders Arrangement Resolution and attend the Debtholders Meeting associated with their Existing Notes upon the transfer of their beneficial ownership of such Existing Notes to any transferee of such Existing Notes on or prior to the Voting Deadline, or such earlier date as its Intermediary may advise.
Pursuant to the Interim Order, Registered Shareholders as of the Record Date are entitled to attend and vote at the Shareholders Meeting. Shareholders will be entitled to one vote for each Common Share held as at the Record Date.
Non-Registered Holders of Common Shares and Existing Notes
In-Person Holders who are Non-Registered Holders should be appointed as their own representatives for such Meeting in accordance with the directions of their Intermediaries and Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable. In-Person Holders can also write the name of someone else whom they wish to vote on their behalf at the applicable Meeting. Unless prohibited by law, the person whose name is written in the space provided in Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable, will have full authority to vote on all matters that are presented at such Meeting, even if those matters are not set out in Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable, or this Circular. By choosing to vote at a Meeting in person or appointing a proxyholder to attend in its place, an In-Person Holders voting instructions will not be executed or tabulated until the applicable Meeting. Accordingly, the voting instructions of In-Person Holders who are Noteholders will not have been properly delivered prior to the Early Consent Deadline and such Noteholders will NOT be eligible to receive Noteholder Early Consent Cash Consideration. If you are a Noteholder and your intention is to support the Debtholders Arrangement Resolution and to qualify for receipt of Noteholder Early Consent Cash Consideration, please provide your voting instructions well in advance of the Early Consent Deadline to your Intermediary. Debtholders or Shareholders who require assistance should contact the Proxy, Information and Exchange Agent toll-free in North America at 1-800-749-9197 or collect call outside North America at 416-867-2272, or by email at contactus@kingsdaleadvisors.com to request the necessary documentation required.
See Entitlement to Vote and Attend and Non-Registered Holders of Common Shares and Existing Notes.
Securityholder Approvals
In order to be passed, the Debtholders Arrangement Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Debtholders present in person or by proxy at the Debtholders Meeting and entitled to vote thereon.
In order to be passed, the Stated Capital Reduction Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Shareholders present in person or by proxy at the Shareholders Meeting and entitled to vote thereon. The Corporation may seek final approval of the Plan by the Court even if the Stated Capital Reduction Resolution is not passed at the Shareholders Meeting.
See Quorum and Voting Requirements.
Required Court Approval for the Plan
The Transaction will be implemented pursuant to the Plan of the Applicants pursuant to Section 192 of the CBCA, subject to, among other conditions, approval of the Plan by the Court pursuant to the Final Order.
See Description of the Transaction and Certain Related Matters Plan of Arrangement.
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Description of the Transaction and Certain Related Matters
Stated Capital Reduction
Subject to Shareholder approval, it is anticipated that Sherritt will reduce the stated capital account of its Common Shares to $575 million, without any payment thereon. The Stated Capital Reduction is a preliminary step to the implementation of the Transaction under the CBCA Proceedings. It will not impact the Corporations current number of Common Shares issued and outstanding.
See Description of the Transaction and Certain Related Matters Stated Capital Reduction.
Plan of Arrangement
The Transaction will be implemented pursuant to the Plan of the Applicants pursuant to Section 192 of the CBCA, subject to, among other conditions, approval of the Plan by the Court pursuant to the Final Order. The Plan contemplates a series of steps and transactions as part of the implementation of the Transaction. These steps and transactions include, among other things, the following key elements:
| the Corporations Existing Notes, in the aggregate principal amount of approximately $588 million, will, together with all accrued and unpaid interest thereon, be exchanged on the Effective Date, as follows: |
| each Early Consenting Noteholder will receive, as consideration in exchange for its Existing Notes: |
| New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Early Consenting Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Early Consenting Noteholder in respect of its Existing Notes up to but not including the Effective Date; and |
| the Noteholder Early Consent Cash Consideration; |
| each Noteholder that is not an Early Consenting Noteholder will receive as consideration in exchange for its Existing Notes, New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Noteholder in respect of its Existing Notes up to but not including the Effective Date; |
| the final aggregate principal amount of New Second Lien Notes to be issued pursuant to the Transaction will depend on the aggregate amount of interest accrued in respect of the Existing Notes up to the Effective Date. Based on an Effective Date of April 30, 2020, the aggregate principal amount of New Second Lien Notes to be issued would be approximately $319 million; |
| Sherritts obligations under the CFA Loans, including the aggregate principal amount of approximately $145 million,2 all accrued and unpaid interest, and any and all other related obligations in respect of the CFA Loans, will be assumed by the CFA Guarantor and exchanged, at the election of each CFA Lender for either (i) such CFA Lenders pro rata share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt, or (ii) Amended CFA Loans in a principal amount equal to the amounts outstanding under such CFA Lenders existing CFA Loan(s), which Amended CFA Loans will be obligations solely of the CFA Guarantor and have no recourse as against Sherritt. If a CFA Lender does not make an election in its CFA Lender Voting and Election Form, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender for purposes of the Plan; |
2 | Principal amount of CFA Loans is as at January 31, 2020, and has been calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at January 31, 2020, being US$1:CDN$1.3233. |
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| any Amended CFA Loans issued pursuant to the Transaction will be on substantially similar terms as the existing CFA Loans, subject to the following: (i) the CFA Guarantor will be the sole borrower under the Amended CFA Loans; (ii) Sherritt will have no obligations in respect of the Amended CFA Loans and there will be no recourse whatsoever against Sherritt in respect of the Amended CFA Loans; and (iii) the CFA Lender will have the right under its Amended CFA Loan, for up to 12 months following implementation of the Transaction, to direct the CFA Guarantor to transfer such CFA Lenders pro rata share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt as directed by such CFA Lender in consideration for the full and final settlement of the CFA Lenders Amended CFA Loan at such time; |
| the Applicants will amalgamate; and |
| the Released Claims will be released pursuant to the Plan. |
Subject to the receipt of the requisite approvals of the Plan and the satisfaction or waiver of all applicable conditions of the Transaction under the Plan, Sherritt expects to implement the Transaction by the end of April 2020.
The Transaction does not affect any other obligations of the Corporation or involve the outstanding Common Shares of the Corporation, and Sherritt will continue to satisfy its obligations to employees, suppliers, customers and governmental authorities in the ordinary course of business.
See Description of the Transaction and Certain Related Matters Plan of Arrangement.
Treatment of Noteholders
On the Effective Date, in accordance with the terms of the Plan:
(i) | each Noteholder that is an Early Consenting Noteholder shall receive: |
a. | New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; and |
b. | its Noteholder Early Consent Cash Consideration; |
(ii) | each Noteholder that is not an Early Consenting Noteholder shall receive New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date, |
in each case, all of which shall, and shall be deemed to, be received in exchange for each such Noteholders Existing Notes and in full and final settlement of its Existing Noteholder Claims.
On the Effective Date, the Existing Noteholder Claims shall, and shall be deemed to, have been irrevocably and finally extinguished; each Noteholder shall have no further right, title or interest in or to its Existing Notes or Existing Noteholder Claims; and the Existing Notes, the Existing Notes Indenture and any and all other Existing Note Documents shall be, and shall be deemed to be, cancelled and terminated, all pursuant to the Plan.
See Description of the Transaction and Certain Related Matters Plan of ArrangementTreatment of Noteholders.
Treatment of CFA Lenders
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On the Effective Date, in accordance with the terms of the Plan, each Ambatovy Interests Electing CFA Lender shall receive its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt, all of which shall, and shall be deemed to, be received in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims. Each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims. The CFA Loan Agreement(s) and any and all other CFA Loan Documents (or parts thereof) relating to such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, cancelled and terminated, and any and all security interests granted by Sherritt and/or the CFA Guarantor in respect of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished.
On the Effective Date, in accordance with the terms of the Plan, each Amended CFA Loan Electing CFA Lender shall receive an Amended CFA Loan in a principal amount equal to the principal amount of its CFA Loan outstanding as at the Effective Date plus all accrued interest in respect thereof that has not been paid or capitalized as principal up to but excluding the Effective Date in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims. Each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims. The CFA Loan Agreement(s) and all other CFA Loan Documents relating to such CFA Lenders CFA Loan(s) shall be deemed to be amended pursuant to the Plan in order to reflect the CFA Loan Amended Terms and shall govern the Amended CFA Loans. Any and all security interests granted by Sherritt in respect of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished, and any and all security interests granted by the CFA Guarantor in respect of such CFA Lenders CFA Loan(s) shall be deemed to have been granted in respect of such CFA Lenders Amended CFA Loan(s).
In the event all CFA Lenders make an Ambatovy Interests Exchange Election, or Amended CFA Loan Electing CFA Lenders subsequently exercise the option to direct the transfer by the CFA Guarantor of such CFA Lenders CFA Lender Pro Rata Share of the Ambatovy Interests pursuant to the Amended CFA Loans, Sherritt will no longer have any ownership interest in the Ambatovy Joint Venture in such circumstances.
See Description of the Transaction and Certain Related Matters Plan of ArrangementTreatment of CFA Lenders.
Alternative CFA Lender Transaction
The Corporation reserves the right, on or prior to the Effective Date, to implement (a) the exchange of the CFA Loans (i) for the Ambatovy Shares and the Ambatovy Debt or (ii) Amended CFA Loans on a contractual basis with the CFA Lenders outside of the Plan, or (b) such other transaction in respect of the CFA Loans that may be acceptable to the Applicants, the CFA Guarantor and the CFA Lenders and that is not materially inconsistent with the effect of the exchange of the CFA Loans for (i) the Ambatovy Shares and the Ambatovy Debt or (ii) Amended CFA Loans, either pursuant to the Plan or on a contractual basis with the CFA Lenders outside of the Plan.
The Applicants shall be entitled to make such amendments to the Plan as are necessary or desirable to reflect the implementation of an Alternative CFA Lender Transaction at the discretion of the Applicants.
See Description of the Transaction and Certain Related Matters Plan of ArrangementAlternative CFA Lender Transaction.
Certain United States Securities Laws Matters
The issuance and distribution of New Second Lien Notes and the related New Notes Guarantees under the Plan have not been registered under the U.S. Securities Act. The New Second Lien Notes and related New Notes Guarantees are being issued and distributed in reliance on the exemption from registration set forth in Section 3(a)(10) of the U.S. Securities Act (and similar exemptions under applicable state securities laws) on the basis of the approval of the Court, which will consider, among other things, the fairness of the Arrangement to the persons affected. Section 3(a)(10) of the U.S. Securities Act exempts from the general requirement of registration under the U.S. Securities Act securities issued in exchange for one or more bona fide outstanding securities, claims or property
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interests, or partly in such exchange and partly for cash, where the terms and conditions of the issuance and exchange are approved by a court of competent jurisdiction that is expressly authorized by law to grant such approval, after a hearing upon the fairness of such terms and conditions of such issuance and exchange at which all persons to whom the securities will be issued in such exchange have the right to appear and receive timely notice thereof. The Court will conduct a hearing to determine the fairness of the terms and conditions of the Arrangement, including the proposed issuance of New Second Lien Notes and related New Notes Guarantees in exchange for the Existing Notes and related Existing Notes Guarantees. The Court entered the Interim Order on February 26, 2020 and, subject to, among other things, approval of the Arrangement by the Debtholders, a hearing on the fairness of the Plan will be held by the Court at 11:00 a.m. (Toronto time) on April 16, 2020, or such other time and/or date as may be approved by the Court.
New Second Lien Notes and related New Notes Guarantees issuable to any persons within the United States may be resold without restriction under the U.S. Securities Act, except in respect of resales by persons who are affiliates of the Corporation at the time of such resale or who have been affiliates of the Corporation within 90 days before the Effective Date. Persons who may be deemed to be affiliates (within the meaning of U.S. Securities Laws) of Sherritt generally would include individuals or entities that control, are controlled by, or are under common control with, Sherritt, whether through the ownership of voting securities, by contract or otherwise, and would include executive officers and directors of Sherritt and may include principal shareholders that would be deemed to control (within the meaning of U.S. Securities Laws) Sherritt. Any resale of such New Second Lien Notes and related New Notes Guarantees by such an affiliate (or, if applicable, former affiliate) would be subject to the registration requirements of the U.S. Securities Act and applicable state securities laws, absent an available exemption therefrom. Subject to certain limitations, such affiliates (and former affiliates) may resell such New Second Lien Notes and related New Notes Guarantees outside the United States without registration under the U.S. Securities Act pursuant to Regulation S under the U.S. Securities Act. Such New Second Lien Notes and related New Notes Guarantees may also be resold in transactions completed in accordance with Rule 144 or another private resale exemption under the U.S. Securities Act, if available.
See Securities Law Matters Certain United States Securities Law Matters and Notice to Debtholders in the United States.
Releases
The Plan includes releases in connection with the implementation of the Transaction in favour of the Released Parties.
At the applicable time, as set out under the heading Arrangement Steps, each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Existing Notes, the Existing Note Documents, the CFA Loans, the CFA Loan Documents, any and all Ambatovy Shares and Ambatovy Debt transferred pursuant to the Plan, the Arrangement, the Arrangement Agreement, the Plan, the CBCA Proceedings and any other proceedings commenced with respect to or in connection with the Plan, the transactions contemplated hereunder, and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (a) any of the Released Parties from or in respect of their respective obligations under the Plan or any Order or document ancillary thereto (including, for greater certainty, to the extent applicable, any of the CFA Guarantors obligations under any Amended CFA Loan(s) issued pursuant to the Plan to any Amended CFA Loan Electing CFA Lender(s)), or (b) any Released Party from liabilities or claims attributable to such Released Partys fraud, gross negligence or wilful misconduct, as determined by the final, non-appealable judgment of a court of competent jurisdiction.
See Description of the Transaction and Certain Related Matters Plan of ArrangementReleases.
Waiver of Defaults
The Plan includes certain permanent waivers of any and all default provisions that may be triggered by the commencement of the CBCA Proceedings, the steps or transactions related to the CBCA Proceedings or the implementation of the Transaction.
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See Description of the Transaction and Certain Related Matters Plan of Arrangement Waiver of Defaults.
Background to and Reasons for the Transaction
As ongoing volatility in commodity pricing and increasing economic and geopolitical uncertainty continue to impact the Sherritt Entities, the Corporation has continued to focus on preserving liquidity and building balance sheet strength. The Corporation, overseen by the Board and with the assistance of financial and legal advisors, has undergone a detailed and proactive process to review potential strategic alternatives and transactions that may be available to the Corporation, with a view to improving Sherritts capital structure, addressing the Corporations significant debt levels and liquidity challenges, and strengthening Sherritts overall financial position for the benefit of the Corporation and its stakeholders.
Sherritt believes that a substantial reduction in its overall debt obligations and cash interest expenses is required at this time to provide a comprehensive solution that will right size Sherritts capital structure, improve the Corporations liquidity position and allow the Corporation to focus on continuing to improve operations and opportunities for the benefit of all stakeholders.
Based on its detailed review of potential available alternatives and circumstances affecting the Corporation and its business, Sherritt determined that the Transaction is in the best interests of the Corporation and its stakeholders at this time and treats all affected stakeholders, regardless of maturity or interest rate, in a fair and balanced way considering all current circumstances.
The Transaction will significantly reduce Sherritts existing debt obligations, which Sherritt believes will result in a more appropriate and sustainable capital structure that the Sherritt Business can support in the context of volatile commodity prices and the global economic and geopolitical challenges that impact the Sherritt Business. Sherritt believes that significantly reducing the Corporations debt obligations at this time will benefit Sherritt and its stakeholders by, among other things, bringing greater stability to the Sherritt Business and aligning the capital structure of the Corporation with the current nature of the Sherritt Business. The Corporation believes that completing the Transaction at this time will result in a comprehensive long-term solution to the Corporations currently over-leveraged position and will provide the Corporation with additional time to increase the value of the Sherritt Business in an improved commodity price and operating environment for the benefit of all stakeholders.
Should the Transaction not be implemented pursuant to the Plan for any reason, the Corporation will continue to review its available strategic alternatives and other potential transactions, including the use of the available $230 million secured debt basket under its Existing Notes Indenture to exchange one series, a combination of series or a portion of all series of its Existing Notes.
See Background to and Reasons for the Transaction Background to Transaction.
Paradigm Capital Opinions
Paradigm Capital was retained as the independent financial advisor to the Corporation and the Board in connection with the Transaction.
Paradigm Capital was asked to provide to the Board: (a) a CBCA opinion in the form described in paragraph 4.04 of Industry Canadas Policy Statement 15-1 Policy Concerning Arrangements under Section 192 of the CBCA dated as of January 4, 2010, and (b) a fairness opinion in respect of the Transaction.
In the Paradigm Capital Opinions, Paradigm Capital concludes that, as of the date of the Paradigm Capital Opinions: (i) the Noteholders and the CFA Lenders, respectively, would be in a better position, from a financial point of view, under the Transaction than if the Corporation were liquidated; and (ii) the Transaction is fair, from a financial point of view, to the Corporation.
The full text of the Paradigm Capital Opinions which set out, among other things, the assumptions made, information reviewed and matters considered by Paradigm Capital in rendering the Paradigm Capital Opinions, as well as the limitations and qualifications the opinions are subject to, is attached as Appendix G to this Circular.
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Debtholders are urged to read the Paradigm Capital Opinions in their entirety. The summaries of the Paradigm Capital Opinions in this Circular are qualified in their entirety by reference to the full text of such opinions. The Paradigm Capital Opinions do not constitute a recommendation to any Debtholder as to how such Debtholder should vote with respect to the Debtholder Arrangement Resolution.
See Background to and Reasons for the Transaction Paradigm Capital Opinions.
Recommendation of the Board
The Board, after careful consideration of a number of factors and potential strategic alternatives, including the foregoing Reasons for Transaction and the Paradigm Capital Opinions, and upon consultation with and advice from the Corporations financial advisor and outside counsel, determined unanimously, that the Transaction is in the best interests of the Corporation and its stakeholders and the Board has unanimously determined to recommend to the Debtholders that they VOTE FOR the Debtholders Arrangement Resolution at the Debtholders Meeting and to Shareholders that they VOTE FOR the Stated Capital Reduction Resolution at the Shareholders Meeting. In making its determination and recommendation, the Board relied upon legal, financial and other advice and information received during the course of its deliberations.
See Recommendation of the Board.
Certain Canadian Federal Income Tax Considerations
For a summary of the principal Canadian federal income tax consequences of the Transaction, please refer to Certain Canadian Federal Income Tax Considerations. Debtholders should consult their own tax advisors regarding relevant federal, provincial or territorial tax considerations of the Transaction.
Non-Canadian Income Tax Considerations
This Circular does not address any tax considerations of the Transaction other than certain Canadian federal income tax considerations. Debtholders who are resident in or subject to the tax laws of jurisdictions other than Canada should consult their tax advisors with respect to the relevant tax implications of the Transaction.
Risk Factors
Securityholders should carefully consider the risk factors concerning the Corporation, the Transaction, non-implementation of the Transaction, as well as tax risks, described under Risk Factors.
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INFORMATION CONCERNING THE MEETINGS
General
This Circular is furnished in connection with the solicitation of proxies by and on behalf of Management and the Board. No person has been authorized to give any information or to make any representations in connection with the Transaction other than those contained in this Circular and, if given or made, any such other information or representation should be considered as not having been authorized.
Pursuant to the Interim Order, Sherritt has called the Debtholders Meeting to consider and, if deemed advisable, to pass, the Debtholders Arrangement Resolution, and has called the Shareholders Meeting to consider and, if deemed advisable, to pass, the Stated Capital Reduction Resolution.
Meetings
The Meetings will be held at the following places, dates and times:
Meeting |
Location |
Time & Date |
Matters to be Considered | |||
Debtholders Meeting |
Offices of Goodmans LLP at Bay Adelaide Centre, 333 Bay Street, Suite 3400, Toronto, Ontario, M5H 2S7 | 10:00 a.m. (Toronto time) on April 9, 2020 | Debtholders Notice | |||
Shareholders Meeting |
10:30 a.m. (Toronto time) on April 9, 2020 | Shareholders Notice |
SOLICITATION OF PROXIES
Management and the Board are soliciting proxies for use at the Meetings. Proxies will be solicited by mail and may also be solicited personally or by telephone, e-mail or other electronic means by the Proxy, Information and Exchange Agent, and by the directors, officers and/or employees of Sherritt. Directors and officers of Sherritt involved in the solicitation of proxies will not be specifically remunerated therefor.
Sherritt has retained Kingsdale Advisors as the Proxy, Information and Exchange Agent to solicit proxies from Voting Parties and provide other related services in connection with the implementation of the Transaction, and has agreed to pay a management fee, information and exchange agent fee of $110,000 and a proxy solicitation and information agent fee of $40,000, plus certain additional fees for other services provided. A Voting Party with any questions with regard to the procedures for voting or making elections, or completing a proxy form, a voting instruction form or other form provided in connection with the Meetings should contact the Proxy, Information and Exchange Agent, toll-free in North America at 1-800-749-9197 or collect call outside North America at 416-867-2272, or by email at contactus@kingsdaleadvisors.com. Sherritt has requested Intermediaries who hold Common Shares or Existing Notes in their names to furnish this Circular and accompanying materials to the beneficial holders of the Common Shares and Existing Notes and to request authority to deliver a proxy or voting form to such beneficial holders. The Corporation will reimburse the Intermediaries for the reasonable costs incurred in obtaining authorization to execute forms of proxy from their principals or beneficial owners.
APPOINTMENT OF PROXIES
Sherritt has designated the individuals named on the form of proxy, Shareholder voting instruction form, Noteholder VIEF or CFA Lender Voting and Election Form included in your Debtholder Meeting Package or Shareholder Meeting Package, as applicable, as persons whom Voting Parties may appoint as their proxyholders. The individuals named in the proxy, voting information and/or election forms are directors and/or officers of the Corporation. If a Voting Party wishes to appoint an individual not named on the relevant proxy, voting information and/or election form to represent such Voting Party at a Meeting that the Voting Party is entitled to attend, such Voting Party may do so by crossing out the names on such form and inserting the name of that other individual in the blank space provided. A proxyholder need not be a Voting
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Party. If the Voting Party is a corporation, its proxy must be executed by a duly authorized officer or properly appointed attorney.
CFA Lenders and Noteholders who wish to be In-Person Holders should contact the Proxy, Information and Exchange Agent for further information in connection with voting in person at the Debtholders Meeting.
NOTEHOLDER PROXIES
All Noteholders are requested to vote in accordance with the instructions provided on the Noteholder VIEF using the applicable method, as set forth therein and described below. In order to cast a vote at the Debtholders Meeting, beneficial holders of the Existing Notes must submit to their respective Intermediaries at or prior to the Voting Deadline, or such earlier deadline as an Intermediary may advise the applicable beneficial holder, their duly completed Noteholder VIEF (or such other documentation as the Intermediary may customarily request for purposes of obtaining voting and election instructions) in accordance with the instructions set forth in the Noteholder VIEF and any instructions provided by your Intermediary or the Proxy, Information and Exchange Agent, as applicable.
CFA LENDER PROXIES
All CFA Lenders are requested to vote in accordance with the instructions provided on the CFA Lender Voting and Election Form, as set forth therein and described below. In order to cast a vote at the Debtholders Meeting, each CFA Lender must submit to the Proxy, Information and Exchange Agent, at or prior to the Voting Deadline, its duly completed CFA Lender Voting and Election Form.
SHAREHOLDER PROXIES
All Shareholders are requested to vote in accordance with the instructions provided on the appropriate proxy or Shareholder voting instruction form, using one of the available methods described therein. In order to be effective, proxies or Shareholder voting instruction forms must be received by the Transfer Agent prior to the Voting Deadline.
Registered Shareholders can submit their proxy:
| By mail: AST Trust Company (Canada), Proxy Department, P.O. Box 721, Agincourt, Ontario, M1S 0A1 |
| By fax: 1-866-781-3111 (toll free) or 416-368-2502 (within the 416 area code) |
| By email: proxyvote@astfinancial.com |
| By telephone: Using a touch-tone telephone, call toll free 1-888-489-7352 (Bilingual) |
| By Internet: www.astvotemyproxy.com |
If you receive more than one proxy form because you own Common Shares registered in different names or addresses, then each proxy form should be completed and returned. The deadline for the deposit of proxies may be waived by the chairman of the Shareholders Meeting at his or her sole discretion without notice.
The Broadridge QuickVote service will also be made available to assist Non-Registered Holders of Common Shares vote their Common Shares over the phone. Non-Registered Holders of Common Shares may be contacted by Kingsdale to help them with this service. The Transfer Agent will tabulate the results of all the voting instructions received and will provide the appropriate instructions for those Common Shares at the Shareholders Meeting.
ENTITLEMENT TO VOTE AND ATTEND
Pursuant to the Interim Order, those persons who are Debtholders on the Record Date are entitled to attend and vote at the Debtholders Meeting. All Debtholders will vote as one class. Each Debtholder will have one vote for each $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date in respect of the Debtholders Arrangement Resolution and any other matters to be considered at the Debtholders Meeting. For the purposes of determining the principal amount of CFA Loans that a CFA Lender is entitled to vote at the Debtholders Meeting, the CFA Loans shall be converted to Canadian Dollars based on the
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Bank of Canada daily U.S. Dollar to Canadian Dollar exchange rate in effect on the Record Date, being US$1:$1.3241.
Beneficial Noteholders shall be deemed to transfer their rights to vote on the Debtholders Arrangement Resolution and attend the Debtholders Meeting associated with their Existing Notes upon the transfer of their beneficial ownership of such Existing Notes to any transferee of such Existing Notes on or prior to the Voting Deadline, or such earlier date as its Intermediary may advise.
Pursuant to the Interim Order, Registered Shareholders as of the Record Date are entitled to attend and vote at the Shareholders Meeting. Shareholders will be entitled to one vote for each Common Share held as at the Record Date.
REVOCATION OF PROXIES
Noteholders shall be entitled to revoke their Noteholder VIEF as follows:
(a) | if revoking a Noteholder VIEF instructing a vote in favour of the Debtholders Arrangement Resolution which was submitted prior to the Early Consent Deadline, then a revocation will be deemed to be made upon such beneficial Noteholder providing amended instructions to such beneficial Noteholders Intermediary at any time prior to the Early Consent Date, provided such Intermediary has then delivered such amended instructions to CDS in accordance with the process described in the Interim Order prior to the Early Consent Deadline. For greater certainty, if a Noteholders vote in favour of the Debtholders Arrangement Resolution is submitted on or prior to the Early Consent Date, such Noteholder may not subsequently revoke such vote after the Early Consent Deadline, has passed; and |
(b) | if revoking any other Noteholder VIEF, a revocation will be deemed to be made upon (i) in respect of a change in vote by a beneficial Noteholder, such beneficial Noteholder providing new instructions to its Intermediary at any time up to the Voting Deadline, which the Intermediary must then deliver to CDS in accordance with the process described in the Interim Order prior to the Voting Deadline (or as soon as reasonably practicable thereafter); (ii) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a beneficial Noteholder, the Intermediary of such beneficial Noteholder providing a written statement indicating that such beneficial Noteholder wishes to have its voting instructions revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the applicable Meeting and which withdrawal shall be forwarded to the Applicants upon receipt; and (iii) in any other manner permitted by the Applicants, acting reasonably. |
CFA Lenders shall be entitled to revoke their CFA Lender Voting and Election Form and a revocation of the vote will be deemed to be made upon (a) in respect of a change in vote by a CFA Lender, such CFA Lender providing new instructions to the Proxy, Information and Exchange Agent at any time up to the Voting Deadline (or as soon as reasonably practicable thereafter), (b) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a CFA Lender, such CFA Lender providing a written statement indicating that it wishes to have its CFA Lender Voting and Election Form revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the Debtholders Meeting and which withdrawal shall be forwarded to the Applicants upon receipt, and (c) in any other manner permitted by the Applicants, acting reasonably.
Registered Shareholders shall be entitled to revoke their proxies (a) in accordance with subsection 148(4) of the CBCA, or (b) in any other manner permitted by law.
VOTING OF PROXIES
The Common Shares and Debt represented by any valid proxy, Shareholder voting instruction form, Noteholder VIEF or CFA Lender Voting and Election Form, as applicable, will be voted for, or against, as the case may be, in
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accordance with the specific instructions made by the Shareholder or Debtholder on any ballot that may be called for with respect to the applicable resolutions. In the absence of any such specific instructions, such Common Shares and Debt will be voted by the designated persons named by Management in the accompanying form of proxy or voting instruction form:
1. | FOR the approval of the Debtholders Arrangement Resolution; and |
2. | FOR the approval of the Stated Capital Reduction Resolution. |
The proxy, voting information and/or election forms confer discretionary authority upon the persons named therein with respect to amendments or variations to matters identified in each of the Notices of Meetings and with respect to such other business or matters which may properly come before the Meetings or the reconvening of any adjournment(s) or postponement(s) thereof. As of the date of this Circular, the Corporation is not aware of any such amendments or variations or any other matters to be addressed at any of the Meetings.
NON-REGISTERED HOLDERS OF COMMON SHARES AND EXISTING NOTES
Non-Registered Holders of Common Shares and Existing Notes are registered either:
(a) | in the name of an Intermediary that the Non-Registered Holder deals with in respect of the Common Shares or Existing Notes, as applicable (Intermediaries include banks, trust companies, securities dealers or brokers, and trustees or administrators of self-administered RRSPs, RRIFs, RESPs and similar plans); or |
(b) | in the name of a depository such as CDS. |
In accordance with Canadian Securities Laws and the Interim Order, Sherritt has caused to be distributed copies of the Debtholder Meeting Packages and the Shareholder Meeting Package to CDS and Intermediaries for onward distribution to Non-Registered Holders. Intermediaries are required to forward these packages to Non-Registered Holders unless a Non-Registered Holder has waived the right to receive them.
These securityholder materials are being sent to both registered holders of Existing Notes and Common Shares, as well as Non-Registered Holders and the CFA Lenders. If you are a Non-Registered Holder and Sherritt or its agent has sent these materials directly to you, your name and address and information about your holdings of securities have been obtained in accordance with applicable securities regulatory requirements from the Intermediary holding on your behalf.
Intermediaries will typically use a service company to forward the Noteholders Debtholder Meeting Packages and the Shareholder Meeting Packages.
The majority of Intermediaries now delegate responsibility for obtaining shareholder instructions from clients to Broadridge. Broadridge typically mails a voting instruction form in lieu of the form of proxy. Non-Registered Holders of Common Shares are requested to vote in accordance with the instructions set forth in the voting instruction form. Broadridge will provide aggregate Shareholder voting instructions to the applicable Transfer Agent, which will tabulate the results for the Shareholders Meeting and provide appropriate instructions respecting the voting of Common Shares to be represented at the Shareholders Meeting or the reconvening of any adjournment(s) or postponement(s) thereof.
Intermediaries will provide aggregate voting instructions for beneficial Noteholders to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) as soon as practicable following receipt of such beneficial Noteholders voting instructions. The Proxy, Information and Exchange Agent will tabulate the results for the Debtholders Meeting and provide appropriate instructions respecting the voting of beneficial Noteholders to be represented at the Debtholders Meeting or the reconvening of any adjournment(s) or postponement(s) thereof.
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Applicable securities regulatory policy requires Intermediaries, on receipt of materials that seek voting instructions from Non-Registered Holders indirectly, to seek voting instructions from Non-Registered Holders in advance of meetings of securityholders on Form 54-101F7 Request for Voting Instructions Made by Intermediary (Form 54-101F7). Every Intermediary has its own mailing procedures and provides its own return instructions, which should be carefully followed by Non-Registered Holders in order to ensure that their Common Shares or Existing Notes, as applicable, are voted at the applicable Meeting or the reconvening of any adjournment(s) or postponement(s) thereof. Often, the form of proxy supplied to a Non-Registered Holder of Common Shares by its broker is identical to the form of proxy provided to Registered Shareholders; however, its purpose is limited to instructing the Registered Shareholder how to vote on behalf of the Non-Registered Holder of Common Shares.
In order for a Noteholder to be eligible to receive the Noteholder Early Consent Cash Consideration, a Noteholder must: (a) submit a vote in favour of the Debtholders Arrangement Resolution on or prior to the Early Consent Deadline, as such deadline may be extended by the Applicants, and (b) not have withdrawn or changed such instructions. A beneficial Noteholder that wishes to receive its applicable Noteholder Early Consent Cash Consideration must provide its voting instructions to its Intermediary in accordance with the instructions provided by such beneficial Noteholders Intermediary (or its agent) and must also instruct its Intermediary to vote in favour of the Debtholders Arrangement Resolution prior to the Early Consent Deadline.
In-Person Holders who are Non-Registered Holders should be appointed as their own representatives for such Meeting in accordance with the directions of their Intermediaries and Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable. In-Person Holders can also write the name of someone else whom they wish to vote on their behalf at the applicable Meeting. Unless prohibited by law, the person whose name is written in the space provided in Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable, will have full authority to vote on all matters that are presented at such Meeting, even if those matters are not set out in Form 54-101F7, the Shareholder voting information form and/or the Noteholder VIEF, as applicable, or this Circular. By choosing to vote at a Meeting in person or appointing a proxyholder to attend in its place, an In-Person Holders voting instructions will not be executed or tabulated until the applicable Meeting. Accordingly, the voting instructions of In-Person Holders who are Noteholders will not have been properly delivered prior to the Early Consent Deadline and such Noteholders will NOT be eligible to receive Noteholder Early Consent Cash Consideration. If you are a Noteholder and your intention is to support the Debtholders Arrangement Resolution and to qualify for receipt of Noteholder Early Consent Cash Consideration, please provide your voting instructions well in advance of the Early Consent Deadline to your Intermediary. Debtholders or Shareholders who require assistance should contact the Proxy, Information and Exchange Agent toll-free in North America at 1-800-749-9197 or collect call outside North America at 416-867-2272, or by email at contactus@kingsdaleadvisors.com to request the necessary documentation required.
QUORUM AND VOTING REQUIREMENTS
Debtholders Meeting
As at January 31, 2020, the approximate aggregate principal amounts of the Debt outstanding are as follows:
Debt |
Outstanding Principal Amount | |
Existing Notes | $588 million | |
CFA Loans | $145 million(1) |
(1) | Principal amount of CFA Loans is as at January 31, 2020, and has been calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at January 31, 2020, being US$1:CDN$1.3233. |
Subject to any further order of the Court, pursuant to the Interim Order:
(a) | those persons who are Debtholders on the Record Date are entitled to attend and vote at the Debtholders Meeting; |
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(b) | each Debtholder will have one vote for each $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date in respect of the Debtholders Arrangement Resolution and any other matters to be considered at the Debtholders Meeting; |
(c) | beneficial Noteholders shall be deemed to transfer their rights to vote on the Debtholders Arrangement Resolution and attend the Debtholders Meeting associated with their Existing Notes upon the transfer of their beneficial ownership of such Existing Notes to any transferee of such Existing Notes on or prior to the Voting Deadline, or such earlier date as their Intermediary may advise; |
(d) | a quorum at the Debtholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Debtholders Meeting; and |
(e) | in order to be passed, the Debtholders Arrangement Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Debtholders present in person or by proxy at the Debtholders Meeting and entitled to vote thereon. |
All Debtholders will vote as one class pursuant to the Interim Order.
The form of the Debtholders Arrangement Resolution is set out at Appendix A to this Circular.
Shareholders Meeting
Subject to any further order of the Court, pursuant to the Interim Order:
(a) | those persons who are Shareholders on the Record Date are entitled to attend and vote at the Shareholders Meeting; |
(b) | each Shareholder will have one vote for each Common Share as at the Record Date; |
(c) | a quorum for the Shareholders Meeting is the presence, in person or by proxy, of two or more persons entitled to vote at such Shareholders Meeting; and |
(d) | in order to be passed, the Stated Capital Reduction Resolution must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Shareholders present in person or by proxy at the Shareholders Meeting and entitled to vote thereon. |
The form of the Stated Capital Reduction Resolution is set out at Appendix B to this Circular.
VOTING SHARES AND THE PRINCIPAL HOLDERS THEREOF
As at the Record Date, the Corporations issued and outstanding voting shares consist of 397,284,433 Common Shares. Holders of Common Shares are entitled to one vote for each Common Share held on the Record Date on all matters to be considered and acted upon at the Shareholders Meeting or any adjournments or postponements thereof. The Corporation is not aware of any person or entity who beneficially owns or exercises direction or control over, directly or indirectly, 10% or more of the Common Shares.
INTEREST OF MANAGEMENT AND OTHERS
Other than as disclosed elsewhere in this Circular, Management is not aware of any material interest, direct or indirect, of any director or officer of the Corporation, any person beneficially owning, directly or indirectly, more than 10% of the Corporations voting securities, or any associate or affiliate of such person in any transaction within the last financial year or in any proposed transaction or in connection with the Transaction which in either case has materially affected or will materially affect the Corporation or its subsidiaries. Certain directors and/or officers hold certain Common Shares, Existing Notes and/or director deferred share units in amounts that are not material.
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QUESTIONS AND OTHER ASSISTANCE
If you are a Shareholder or Debtholder and you have any questions about the information contained in this Circular or require assistance in completing your proxy, voting information and/or election forms, please contact our Proxy, Information and Exchange Agent, Kingsdale Advisors, using the contact details listed on the back page of this Circular.
BUSINESS OF THE MEETINGS
Debtholders will be asked to consider and, if deemed advisable, to pass, with or without variation, the Debtholders Arrangement Resolution and such other matters as may be appropriate.
Shareholders will be asked to consider and, if deemed advisable, to pass, with or without variation, the Stated Capital Reduction Resolution and such other matters as may be appropriate.
Sherritt reserves the right, in its sole discretion, to withdraw the Debtholders Arrangement Resolution and/or the Stated Capital Reduction Resolution from being put before the Debtholders Meeting or the Shareholders Meeting, as applicable.
IMPACT OF THE TRANSACTION
The following table shows the effect of the Transaction on Sherritts consolidated capital structure as at December 31, 2019, assuming the Transaction had been completed on the Effective Date of April 30, 2020.
December 31, 2019 | Pro Forma After Transaction(1) |
|||||||
($ in millions)(2) | ||||||||
Revolving Bank Facility(3) |
8 | 8 | ||||||
Existing Notes |
588 | | ||||||
New Second Lien Notes |
| 319 | ||||||
CFA Loans |
145 | (4) | | (5) | ||||
Total |
741 | 327 | ||||||
|
|
|
|
Notes:
(1) | Only those items forming part of Sherritts consolidated capital structure that are subject to a material change as a result of the Transaction are included in the above consolidated capitalization table. The Revolving Bank Facility has been included for ease of reference, but will not be impacted by the Transaction. |
(2) | The amounts reflected in the table above have been rounded. |
(3) | This amount does not take into account transaction costs or other adjustments, or the Corporations outstanding letters of credit. |
(4) | Principal amount of CFA Loans is as at January 31, 2020, and has been calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at January 31, 2020, being US$1:CDN$1.3233. The principal amount of CFA Loans as at December 31, 2019 was approximately $143 million, calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at December 31, 2019, being US$1:CDN$1.2988. |
(5) | The above table reflects Sherritts obligations on a standalone basis. To the extent that CFA Lenders elect, or are deemed pursuant to the Plan to elect, to exchange their CFA Loans for Amended CFA Loans, such Amended CFA Loans shall be obligations solely of the CFA Guarantor. Sherritt shall have no obligations in respect of any Amended CFA Loans and there shall be no recourse as against Sherritt. Notwithstanding the foregoing, Sherritt will continue to recognize the consolidated impact of any Amended CFA Loans in its consolidated financial statements. |
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DESCRIPTION OF THE TRANSACTION AND CERTAIN RELATED MATTERS
The following contains a summary of certain of the terms of the Plan. This summary does not purport to be a complete summary of all of the terms of the Plan. For a complete description of the terms of the Plan reference should be made to the document directly, a copy of which is appended to this Circular as Appendix C.
Stated Capital Reduction
Subject to Shareholder approval, it is anticipated that Sherritt will reduce the stated capital account of its Common Shares to $575 million, without any payment thereon (the Stated Capital Reduction). The Stated Capital Reduction is a preliminary step to the implementation of the Transaction under the CBCA Proceedings. It will not impact the Corporations current number of Common Shares issued and outstanding. The Board believes that it is in the best interests of Sherritt to complete the Stated Capital Reduction in connection with implementing the Arrangement.
At the Shareholders Meeting, Shareholders will be asked to consider and, if deemed advisable, approve the Stated Capital Reduction Resolution, the full text of which is set out in Appendix B. In order to become effective, the Stated Capital Reduction must be approved by the affirmative vote of at least 662⁄3% of the votes cast by Shareholders present in person or by proxy at the Shareholders Meeting and entitled to vote thereon.
Plan of Arrangement
The Transaction will be implemented pursuant to the Plan of the Applicants pursuant to Section 192 of the CBCA, subject to, among other conditions, approval of the Plan by the Court pursuant to the Final Order.
The Plan contemplates a series of steps and transactions as part of the implementation of the Transaction. These steps and transactions include, among other things, the following key elements:
| the Corporations Existing Notes, in the aggregate principal amount of approximately $588 million, will, together with all accrued and unpaid interest thereon, be exchanged on the Effective Date, as follows: |
| each Early Consenting Noteholder will receive, as consideration in exchange for its Existing Notes: |
| New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Early Consenting Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Early Consenting Noteholder in respect of its Existing Notes up to but not including the Effective Date; and |
| the Noteholder Early Consent Cash Consideration; |
| each Noteholder that is not an Early Consenting Noteholder will receive as consideration in exchange for its Existing Notes, New Second Lien Notes in an aggregate principal amount equal to (i) 50% of the principal amount of Existing Notes held by such Noteholder on the Effective Date, plus (ii) the amount of accrued and unpaid interest owing to such Noteholder in respect of its Existing Notes up to but not including the Effective Date; |
| the final aggregate principal amount of New Second Lien Notes to be issued pursuant to the Transaction will depend on the aggregate amount of interest accrued in respect of the Existing Notes up to the Effective Date. Based on an Effective Date of April 30, 2020, the aggregate principal amount of New Second Lien Notes to be issued would be approximately $319 million; |
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| Sherritts obligations under the CFA Loans, including the aggregate principal amount of approximately $145 million,3 all accrued and unpaid interest, and any and all other related obligations in respect of the CFA Loans, will be assumed by the CFA Guarantor and exchanged, at the election of each CFA Lender for either (i) such CFA Lenders pro rata share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt, or (ii) Amended CFA Loans in a principal amount equal to the amounts outstanding under such CFA Lenders existing CFA Loan(s), which Amended CFA Loans will be obligations solely of the CFA Guarantor and have no recourse as against Sherritt. If a CFA Lender does not make an election in its CFA Lender Voting and Election Form, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender for purposes of the Plan; |
| any Amended CFA Loans issued pursuant to the Transaction will be on substantially similar terms as the existing CFA Loans, subject to the following: (i) the CFA Guarantor will be the sole borrower under the Amended CFA Loans; (ii) Sherritt will have no obligations in respect of the Amended CFA Loans and there will be no recourse whatsoever against Sherritt in respect of the Amended CFA Loans; and (iii) the CFA Lender will have the right under its Amended CFA Loan, for up to 12 months following implementation of the Transaction, to direct the CFA Guarantor to transfer such CFA Lenders pro rata share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt as directed by such CFA Lender in consideration for the full and final settlement of the CFA Lenders Amended CFA Loan at such time; |
| the Applicants will amalgamate; and |
| the Released Claims will be released pursuant to the Plan. |
Subject to the receipt of the requisite approvals of the Plan and the satisfaction or waiver of all applicable conditions of the Transaction under the Plan, Sherritt expects to implement the Transaction by the end of April 2020.
The Transaction does not affect any other obligations of the Corporation or involve the outstanding Common Shares of the Corporation, and Sherritt will continue to satisfy its obligations to employees, suppliers, customers and governmental authorities in the ordinary course of business.
Treatment of Noteholders
On the Effective Date, in accordance with the terms of the Plan:
(i) | each Noteholder that is an Early Consenting Noteholder shall receive: |
a. | New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; and |
b. | its Noteholder Early Consent Cash Consideration; |
(ii) | each Noteholder that is not an Early Consenting Noteholder shall receive New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date, |
in each case, all of which shall, and shall be deemed to, be received in exchange for each such Noteholders Existing Notes and in full and final settlement of its Existing Noteholder Claims.
3 | Principal amount of CFA Loans is as at January 31, 2020, and has been calculated by converting from U.S. Dollar currency to Canadian Dollar currency using the Bank of Canada daily exchange rate as at January 31, 2020, being US$1:CDN$1.3233. |
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On the Effective Date, the Existing Noteholder Claims shall, and shall be deemed to, have been irrevocably and finally extinguished; each Noteholder shall have no further right, title or interest in or to its Existing Notes or Existing Noteholder Claims; and the Existing Notes, the Existing Notes Indenture and any and all other Existing Note Documents shall be, and shall be deemed to be, cancelled and terminated, all pursuant to the Plan.
The reasonable and documented outstanding fees, expenses and disbursements of the Existing Indenture Trustee shall be paid by Amalgamated Sherritt pursuant to the Existing Notes Indenture.
All references to the principal amount of the Existing Notes or the Existing Noteholder Claims contained in the Plan shall refer to the principal amount of such Existing Notes or the Existing Noteholder Claims excluding any make-whole premiums, redemption premiums or other similar premiums.
In connection with the Transaction, the Corporation does not anticipate making further scheduled interest payments in respect of the Existing Notes, and all accrued and unpaid interest in respect of the Existing Notes shall be addressed as part of the exchange of the Existing Notes for the New Second Lien Notes and, where applicable, the Noteholder Early Consent Cash Consideration.
Treatment of CFA Lenders
On the Effective Date, in accordance with the terms of the Plan, each Ambatovy Interests Electing CFA Lender shall receive its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt, all of which shall, and shall be deemed to, be received in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims. Each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims. The CFA Loan Agreement(s) and any and all other CFA Loan Documents (or parts thereof) relating to such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, cancelled and terminated, and any and all security interests granted by Sherritt and/or the CFA Guarantor in respect of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished.
On the Effective Date, in accordance with the terms of the Plan, each Amended CFA Loan Electing CFA Lender shall receive an Amended CFA Loan in a principal amount equal to the principal amount of its CFA Loan outstanding as at the Effective Date plus all accrued interest in respect thereof that has not been paid or capitalized as principal up to but excluding the Effective Date in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims. Each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims. The CFA Loan Agreement(s) and all other CFA Loan Documents relating to such CFA Lenders CFA Loan(s) shall be deemed to be amended pursuant to the Plan in order to reflect the CFA Loan Amended Terms and shall govern the Amended CFA Loans. Any and all security interests granted by Sherritt in respect of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished, and any and all security interests granted by the CFA Guarantor in respect of such CFA Lenders CFA Loan(s) shall be deemed to have been granted in respect of such CFA Lenders Amended CFA Loan(s).
All references to the principal amount of the CFA Loans or the CFA Lender Claims contained in the Plan shall refer to the principal amount of such CFA Loans or the CFA Lender Claims excluding any make-whole premiums, redemption premiums or other similar premiums.
In the event all CFA Lenders make an Ambatovy Interests Exchange Election, or Amended CFA Loan Electing CFA Lenders subsequently exercise the option to direct the transfer by the CFA Guarantor of such CFA Lenders CFA Lender Pro Rata Share of the Ambatovy Interests pursuant to the Amended CFA Loans, Sherritt will no longer have any ownership interest in the Ambatovy Joint Venture in such circumstances.
Each CFA Lenders CFA Lender Pro Rata Share of the AMSA Shares and the DMSA Shares, whether acquired pursuant to an Ambatovy Interests Exchange Election or pursuant to the terms of an Amended CFA Loan, will be subject to the terms and provisions of the Ambatovy Shareholders Agreement, a copy of which is available online under the Corporations profile on SEDAR at www.sedar.com.
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Alternative CFA Lender Transaction
The Corporation reserves the right, on or prior to the Effective Date, to implement (a) the exchange of the CFA Loans (i) for the Ambatovy Shares and the Ambatovy Debt or (ii) Amended CFA Loans on a contractual basis with the CFA Lenders outside of the Plan, or (b) such other transaction in respect of the CFA Loans that may be acceptable to the Applicants, the CFA Guarantor and the CFA Lenders and that is not materially inconsistent with the effect of the exchange of the CFA Loans for (i) the Ambatovy Shares and the Ambatovy Debt or (ii) Amended CFA Loans, either pursuant to the Plan or on a contractual basis with the CFA Lenders outside of the Plan (in each case, an Alternative CFA Lender Transaction).
The Applicants shall be entitled to make such amendments to the Plan as are necessary or desirable to reflect the implementation of an Alternative CFA Lender Transaction at the discretion of the Applicants.
Fractional Interests
The New Second Lien Notes issued pursuant to the Plan shall be issued in minimum increments of $1,000, and the amount of New Second Lien Notes that each Noteholder shall be entitled to under the Plan shall in each case be rounded down to the nearest multiple of $1,000 without compensation therefor. For greater certainty, holders of Existing Notes in a principal amount of less than $2,000 are not entitled to receive New Second Lien Notes as a result of the Notes Exchange Ratio.
All payments made in cash pursuant to the Plan shall be made in minimum increments of $0.01, and the amount of any payments to which a Person may be entitled to under the Plan shall be rounded down to the nearest multiple of $0.01.
Releases
The Plan includes releases in connection with the implementation of the Transaction in favour of the Released Parties (the Releases).
At the applicable time, as set out under the heading Arrangement Steps, each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Existing Notes, the Existing Note Documents, the CFA Loans, the CFA Loan Documents, any and all Ambatovy Shares and Ambatovy Debt transferred pursuant to the Plan, the Arrangement, the Arrangement Agreement, the Plan, the CBCA Proceedings and any other proceedings commenced with respect to or in connection with the Plan, the transactions contemplated hereunder, and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (a) any of the Released Parties from or in respect of their respective obligations under the Plan or any Order or document ancillary thereto (including, for greater certainty, to the extent applicable, any of the CFA Guarantors obligations under any Amended CFA Loan(s) issued pursuant to the Plan to any Amended CFA Loan Electing CFA Lender(s)), or (b) any Released Party from liabilities or claims attributable to such Released Partys fraud, gross negligence or wilful misconduct, as determined by the final, non-appealable judgment of a court of competent jurisdiction (collectively the Released Claims).
The Releases contemplated under the Plan shall not apply to the Revolving Bank Facility Lenders or the administrative agent under the Revolving Bank Facility Agreement, as agreed by the parties pursuant to the Consent Agreement.
Waiver of Defaults
From and after the Effective Time, all Persons named or referred to in, or subject to, the Plan shall be deemed to have consented and agreed to all of the provisions of the Plan in its entirety. Without limiting the foregoing, from and after the Effective Time, all Persons shall be deemed to have:
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(a) | waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt, the Debt Documents, the Arrangement, the Arrangement Agreement, the Plan, the transactions contemplated hereunder, the CBCA Proceedings and any other proceedings commenced with respect to or in connection with the Plan and any and all amendments or supplements thereto. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Applicants or the other Sherritt Entities, as applicable, and their respective successors and assigns from performing their obligations under the Plan or any contract or agreement entered into pursuant to, in connection with, or contemplated by, the Plan; and |
(b) | agreed that if there is any conflict between the provisions of any agreement or other arrangement, written or oral, existing between such Person and any of the Applicants prior to the Effective Date and the provisions of the Plan, then the provisions of the Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly, |
provided, however, that notwithstanding any other provision of the Plan, nothing herein shall affect the obligations of any of the Applicants to any employee thereof in their capacity as such, including any contract of employment between any Person and any of the Applicants.
The waivers contemplated under the Plan shall not apply to the Revolving Bank Facility Lenders or the administrative agent under the Revolving Bank Facility Agreement, as agreed by the parties pursuant to the Consent Agreement.
Procedures
Registered Noteholders and the Cancellation of Existing Notes
The Existing Notes are held by the Existing Indenture Trustee as custodian for CDS (or its nominee) (as registered holder of the Existing Notes on behalf of the Noteholders, subject to any Existing Notes which may be withdrawn from CDS and held in registered form by a Noteholder). On the Effective Date, CDS and each other Person who holds Existing Notes in registered form on the Effective Date shall surrender, or cause the surrender of, the certificate(s) representing the Existing Notes to the Existing Indenture Trustee for cancellation in exchange for the consideration payable to Noteholders pursuant to the Plan. For certainty, notwithstanding whether or not the foregoing is complied with, the Existing Notes shall be deemed to be cancelled pursuant to the Plan.
Eligibility for Noteholder Early Consent Cash Consideration
Early Consenting Noteholders who, by the Early Consent Deadline, pursuant to the terms of the Interim Order, submit a duly completed Noteholder VIEF with a vote in favour of the Debtholders Arrangement Resolution, shall, subject to compliance with the terms and procedures described herein, in the Interim Order and in the Plan, receive on the Effective Date the Noteholder Early Consent Cash Consideration, as partial consideration payable in exchange for their Existing Notes.
Early Consenting Noteholders who submit the Noteholder VIEF with a vote in favour of the Debtholders Arrangement Resolution prior to the Early Consent Deadline but do not indicate an election in respect of the Noteholder Early Consent Cash Consideration will not be entitled to receive any Noteholder Early Consent Cash Consideration. Noteholders who vote in favour of the Debtholders Arrangement Resolution after the Early Consent Deadline, who vote against the Debtholders Arrangement Resolution or do not vote at all, in each case, will not be entitled to receive any Noteholder Early Consent Cash Consideration. Noteholders are urged to carefully review the Noteholder VIEF to be distributed pursuant to the Interim Order, which may also be requested from the Proxy, Information and Exchange Agent.
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Delivery of Noteholder Early Consent Cash Consideration
The payment by Amalgamated Sherritt on the Effective Date of Noteholder Early Consent Cash Consideration shall be effected through the delivery of cash in the aggregate amount of the Noteholder Early Consent Cash Consideration payable to the Early Consenting Noteholders by Amalgamated Sherritt to CDS for distribution to the Early Consenting Noteholders as of the Effective Date in accordance with CDSs customary practices.
Delivery of New Second Lien Notes
The delivery of the New Second Lien Notes to be issued to the Noteholders pursuant to the Plan shall be made by way of issuance by Amalgamated Sherritt on the Effective Date of a global note issued in the name of CDS (or its nominee) in respect of the Noteholders. CDS and the applicable Intermediaries shall then make delivery of the New Second Lien Notes to the ultimate beneficial recipients thereof entitled to receive the New Second Lien Notes pursuant to the Plan pursuant to standing instructions and customary practices of CDS and such Intermediaries.
Delivery of Ambatovy Interests
For Ambatovy Interests Electing CFA Lenders, the delivery of the Ambatovy Shares and Ambatovy Debt pursuant to the Plan shall be made on or as soon as practicable after the Effective Date.
The transfer of the Ambatovy Shares contemplated under the Transaction may be subject to a stamp tax under applicable law in Madagascar. The amount of such tax has not been determined at this time.
Arrangement Agreement
The Arrangement Agreement attached as Appendix D to this Circular contains covenants by the Applicants to make an application to the Court to effect the Arrangement pursuant to the Plan, the form of which is attached as Appendix C to this Circular.
SECURITIES LAW MATTERS
Certain Canadian Securities Law Matters
The issuance of the New Second Lien Notes will be exempt from the prospectus and registration requirements under Canadian Securities Laws. As a consequence of these exemptions, certain protections, rights and remedies provided by Canadian Securities Laws, including statutory rights of recession or damages, will not be available in respect of the new securities to be issued under the Transaction.
The New Second Lien Notes will be freely transferable in Canada subject to normal Canadian Securities Law considerations.
Certain United States Securities Law Matters
The issuance and distribution of New Second Lien Notes and the related New Notes Guarantees under the Plan have not been registered under the U.S. Securities Act. The New Second Lien Notes and related New Notes Guarantees are being issued and distributed in reliance on the exemption from registration set forth in Section 3(a)(10) of the U.S. Securities Act (and similar exemptions under applicable state securities laws) on the basis of the approval of the Court, which will consider, among other things, the fairness of the Arrangement to the persons affected. Section 3(a)(10) of the U.S. Securities Act exempts from the general requirement of registration under the U.S. Securities Act securities issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of the issuance and exchange are approved by a court of competent jurisdiction that is expressly authorized by law to grant such approval, after a hearing upon the fairness of such terms and conditions of such issuance and exchange at which all persons to whom the securities will be issued in such exchange have the right to appear and receive timely notice thereof. The Court will conduct a hearing to determine the fairness of the terms and conditions of the Arrangement, including the proposed issuance of New Second Lien Notes and related New Notes Guarantees in exchange for the
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Existing Notes and related Existing Notes Guarantees. The Court entered the Interim Order on February 26, 2020 and, subject to, among other things, approval of the Arrangement by the Debtholders, a hearing on the fairness of the Plan will be held by the Court at 11:00 a.m. (Toronto time) on April 16, 2020, or such other time and/or date as may be approved by the Court.
All Debtholders are entitled to appear and be heard at the hearing for the Final Order on the terms set out in the Interim Order. The Final Order will constitute the basis for the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) thereof with respect to the New Second Lien Notes and related New Notes Guarantees to be issued and distributed to the Noteholders pursuant to the Plan. Prior to the hearing on the Final Order, the Court will be informed that the parties intend to rely on the Final Order, when granted, as the basis for the exemption from the registration requirements of the U.S. Securities Act set forth in Section 3(a)(10) of the U.S. Securities Act with respect to the issuance and distribution of New Second Lien Notes and related New Notes Guarantees under the Plan.
New Second Lien Notes and related New Notes Guarantees issuable to any persons within the United States may be resold without restriction under the U.S. Securities Act, except in respect of resales by persons who are affiliates of the Corporation at the time of such resale or who have been affiliates of the Corporation within 90 days before the Effective Date. Persons who may be deemed to be affiliates (within the meaning of U.S. Securities Laws) of Sherritt generally would include individuals or entities that control, are controlled by, or are under common control with, Sherritt, whether through the ownership of voting securities, by contract or otherwise, and would include executive officers and directors of Sherritt and may include principal shareholders that would be deemed to control (within the meaning of U.S. Securities Laws) Sherritt. Any resale of such New Second Lien Notes and related New Notes Guarantees by such an affiliate (or, if applicable, former affiliate) would be subject to the registration requirements of the U.S. Securities Act and applicable state securities laws, absent an available exemption therefrom. Subject to certain limitations, such affiliates (and former affiliates) may resell such New Second Lien Notes and related New Notes Guarantees outside the United States without registration under the U.S. Securities Act pursuant to Regulation S under the U.S. Securities Act. Such New Second Lien Notes and related New Notes Guarantees may also be resold in transactions completed in accordance with Rule 144 or another private resale exemption under the U.S. Securities Act, if available. See also Notice to Debtholders in the United States.
The foregoing discussion is only a general overview of certain requirements of the U.S. Securities Laws applicable to the New Second Lien Notes and related New Notes Guarantees. All holders of such securities are urged to consult with counsel to ensure that the resale, exercise or other transfer of their securities complies with applicable securities laws.
ARRANGEMENT STEPS
Commencing at the Effective Time, the following events or transactions will occur, or be deemed to have occurred and be taken and effected, in the following order in five minute increments (unless otherwise indicated) (or in such other manner or order or at such other time or times as the Applicants may agree, acting reasonably, pursuant to the Plan), without any further act or formality required on the part of any Person, except as may be expressly provided herein:
(a) | Sherritt and Sherritt Amalco shall be, and shall be deemed to be, amalgamated and continued as one corporation (Amalgamated Sherritt) under the CBCA in accordance with the following: |
(i) | Name. The name of Amalgamated Sherritt shall be Sherritt International Corporation; |
(ii) | Registered Office. The registered office of Amalgamated Sherritt shall be located in the City of Toronto in the Province of Ontario. The address of the registered office of Amalgamated Sherritt shall be 22 Adelaide Street West, Suite 4220, Bay Adelaide Centre, East Tower, Toronto ON M5H 4E3, Canada; |
(iii) | Restrictions on Business. There shall be no restrictions on the business that Amalgamated Sherritt may carry on; |
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(iv) | Articles. The articles of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the articles of Amalgamated Sherritt; |
(v) | Directors. Amalgamated Sherritt shall have a minimum of 3 directors and a maximum of 15 directors, until changed in accordance with the CBCA. Until changed by shareholders of Amalgamated Sherritt, or by the directors of Amalgamated Sherritt in accordance with the CBCA, the directors of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the directors of Amalgamated Sherritt; |
(vi) | Shares. All shares of Sherritt Amalco shall be cancelled without any repayment of capital in respect thereof; no shares will be issued by Amalgamated Sherritt in connection with the Amalgamation and all shares of Sherritt prior to the Amalgamation shall be unaffected and shall continue as shares of Amalgamated Sherritt; |
(vii) | Stated Capital. The stated capital account in respect of the common shares of Amalgamated Sherritt will be equal to the stated capital account in respect of the Common Shares immediately prior to the Amalgamation; |
(viii) | By-laws. The by-laws of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the by-laws of Amalgamated Sherritt; |
(ix) | Effect of Amalgamation. The provisions of subsection 186(a) to (g) of the CBCA shall apply to the Amalgamation with the result that: |
(A) | the amalgamation of the amalgamating corporations and their continuance as one corporation becomes effective; |
(B) | the property of each amalgamating corporation continues to be the property of Amalgamated Sherritt; |
(C) | Amalgamated Sherritt continues to be liable for the obligations of each amalgamating corporation; |
(D) | an existing cause of action, claim or liability to prosecution is unaffected; |
(E) | a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may be continued to be prosecuted by or against Amalgamated Sherritt; |
(F) | a conviction against, or ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against Amalgamated Sherritt; and |
(G) | the Articles of Arrangement are deemed to be the articles of incorporation of Amalgamated Sherritt and the Certificate of Arrangement is deemed to be the certificate of incorporation of Amalgamated Sherritt. |
(b) | The following shall occur concurrently: |
(i) | Amalgamated Sherritt, the New Notes Guarantors and the New Indenture Trustee shall enter into the New Notes Indenture and the other New Note Documents; |
(ii) | in exchange for the Existing Notes, and in full and final settlement of the Existing Noteholder Claims, Amalgamated Sherritt shall issue and/or pay, as applicable: |
(A) | to each Noteholder that is an Early Consenting Noteholder: |
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(1) | New Second Lien Notes in an aggregate principal amount equal to (I) the aggregate principal amount of the Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (II) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; and |
(2) | its Noteholder Early Consent Cash Consideration, and |
(B) | to each Noteholder that is not an Early Consenting Noteholder, New Second Lien Notes in an aggregate principal amount equal to (I) the aggregate principal amount of the Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (II) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; |
(iii) | the Existing Noteholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Noteholders shall have no further right, title or interest in or to the Existing Notes or their respective Existing Noteholder Claims; and |
(iv) | the Existing Notes, the Existing Notes Indenture and any and all other related Existing Note Documents shall be irrevocably cancelled and terminated, provided that the Existing Notes Indenture shall remain in effect solely to allow the Existing Indenture Trustee to make the distributions set forth in the Plan. |
(c) | The following shall occur in sequence: |
(i) | the CFA Guarantor shall declare a dividend or repayment of capital in the aggregate amount of the Obligations under the CFA Loans, payable to Amalgamated Sherritt which shall be satisfied through the issuance of a demand promissory note of the CFA Guarantor (the CFA Note) to Amalgamated Sherritt; and |
(ii) | the CFA Guarantor shall satisfy the CFA Note through the assumption of all of Amalgamated Sherritts Obligations under the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents, and (A) Amalgamated Sherritt shall be, and shall be deemed to be, fully, finally and irrevocably released and discharged from all Obligations in respect of the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents; any and all security interests granted by Sherritt in respect of the CFA Loans shall be, and shall be deemed to be, released, discharged and extinguished pursuant to the Plan; and all CFA Lender Claims as against Amalgamated Sherritt shall, and shall be deemed to be, irrevocably and finally extinguished, and (B) the CFA Note shall be, and shall be deemed to be, fully repaid and satisfied, and Amalgamated Sherritt shall deliver the CFA Note back to the CFA Guarantor as consideration for the assumption of the Obligations under the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents; |
(d) | The following shall occur concurrently with respect to each Ambatovy Interests Electing CFA Lender: |
(i) | the CFA Guarantor shall transfer, or cause to be transferred, to each Ambatovy Interests Electing CFA Lender its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt in consideration for an aggregate amount equal to the amount of the Obligations outstanding under the CFA Loan(s) owing to each such Ambatovy Interests Electing CFA Lender, which amount shall be satisfied through the full and final set-off, settlement, repayment and exchange of such Ambatovy Interests Electing CFA Lenders CFA Loans and CFA Lender Claims; |
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(ii) | the CFA Guarantor shall be, and shall be deemed to be, fully, finally and irrevocably released and discharged from all Obligations in respect of each such Ambatovy Interests Electing CFA Lenders CFA Loans, and the CFA Loan Agreements and all other CFA Loan Documents relating to each such Ambatovy Interests Electing CFA Lenders CFA Loans; each such Ambatovy Interests Electing CFA Lenders CFA Loans and CFA Lender Claims shall, and shall be deemed to be, irrevocably and finally extinguished; any and all security interests granted by the CFA Guarantor in respect of each such Ambatovy Interests Electing CFA Lenders CFA Loans shall be, and shall be deemed to be, released, discharged and extinguished pursuant to the Plan; and each such Ambatovy Interests Electing CFA Lender shall have no further right, title or interest in or to its CFA Loans or CFA Lender Claims; and |
(iii) | the CFA Loan Agreements and all other CFA Loan Documents (or parts thereof) relating to each such Ambatovy Interests Electing CFA Lenders CFA Loan(s) shall be irrevocably cancelled and terminated; |
(e) | Concurrently with the steps set forth in (d) above, the following shall occur concurrently with respect to each Amended CFA Loans Electing CFA Lender: |
(i) | each Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be exchanged for Amended CFA Loan(s) in a principal amount equal to the principal amount of its CFA Loan(s) outstanding at the Effective Date plus all accrued interest in respect thereof that has not been paid or capitalized as principal up to but excluding the Effective Date, in full and final set-off, settlement, repayment and exchange of each such Amended CFA Loans Electing CFA Lenders CFA Loans and CFA Lender Claims; |
(ii) | each such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall, and shall be deemed to be, irrevocably and finally extinguished, and each such Amended CFA Loans Electing CFA Lender shall have no further right, title or interest in or to its CFA Loans; and |
(iii) | the CFA Loan Agreements and all other CFA Loan Documents relating to such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be deemed to be amended pursuant to the Plan in order reflect the CFA Loan Amended Terms and shall govern the Amended CFA Loans, and any and all security interests granted by the CFA Guarantor in respect of each such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be deemed to have been granted by the CFA Guarantor in respect of each such Amended CFA Loans Electing CFA Lenders Amended CFA Loan(s); and |
(f) | The Releases shall become effective. |
CONDITIONS PRECEDENT TO THE IMPLEMENTATION OF THE PLAN
The implementation of the Plan is conditional upon the fulfillment, satisfaction or waiver (to the extent permitted under the Plan) of the following conditions precedent, in each case in accordance with the terms thereof:
(a) | the Arrangement Agreement shall be in full force and effect and shall have not been terminated by the Applicants; |
(b) | the Plan and the transactions contemplated thereby shall be consistent with the terms of the transactions described in this Circular in all material respects, subject to any amendments to the Plan permitted by the terms thereof or as otherwise permitted by the Court; |
(c) | the Plan shall have been approved by the requisite majority of Debtholders as and to the extent required in the Interim Order or as otherwise ordered by the Court; |
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(d) | the Plan shall have been approved by the Court pursuant to the Final Order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Applicants, vacated or subject to pending appeal; |
(e) | all material filings required under applicable Laws in connection with the Arrangement shall have been made and any material regulatory or third party consents or approvals that are required in connection with the Arrangement shall have been obtained and, in the case of waiting or suspensory periods, such waiting or suspensory periods shall have expired or been terminated; |
(f) | there shall not be in effect any preliminary or final decision, order or decree by a Governmental Entity, no application shall have been made to any Governmental Entity, and no action or investigation shall have been announced, threatened in writing or commenced by any Governmental Entity, in consequence of or in connection with the Arrangement that restrains, prohibits or materially impedes (or if granted would reasonably be expected to restrain, prohibit or materially impede) the Arrangement, or requires or proposes to require a material variation to the Arrangement that is not acceptable to the Applicants; |
(g) | no Law shall have been passed and become effective, the effect of which makes the consummation of the Plan illegal; |
(h) | the terms of the Revolving Bank Facility shall be amended, prior to or concurrently with the implementation of the Plan, to reflect the Revolving Bank Facility Amendments and any other amendments as may be acceptable to the Revolving Bank Facility Lenders and Sherritt; and |
(i) | the Applicants shall have completed all necessary corporate actions and proceedings as they deem necessary or advisable, in their reasonable discretion, in connection with the Arrangement and the Plan. |
The conditions precedent to the implementation of the Plan, in whole or in part, may be waived by the Corporation in accordance with the terms of the Plan.
TERMS OF THE NEW SECOND LIEN NOTES AND THE NEW NOTES INDENTURE
The following is a summary of the principal terms of the New Second Lien Notes and the New Notes Indenture. This summary does not purport to be complete. For a more fulsome description of the terms of the New Second Lien Notes, reference should be made to the Description of Notes appended hereto as Appendix H (the Description of Notes). For a complete description of the terms of the New Second Lien Notes and the New Notes Indenture, reference should be made to the New Notes Indenture. A substantially final version of the New Notes Indenture is expected to be filed on SEDAR at www.sedar.com and/or the Corporations website at https://www.sherritt.com prior to the Effective Date. The final version will be filed on SEDAR at www.sedar.com on or promptly following the Effective Date.
The New Notes Indenture will be qualified under the U.S. Trust Indenture Act by an application with the SEC on Form T-3 (the T-3 Application). The terms of the New Second Lien Notes include those stated in the New Notes Indenture and those made part of the New Notes Indenture by reference to the U.S. Trust Indenture Act. The New Indenture Trustee will be qualified under the U.S. Trust Indenture Act by an application with the SEC on Form T-6, to be included in the T-3 Application.
The New Second Lien Notes will not be registered under the U.S. Securities Act, or the securities laws of any state of the United States, and may not be offered or sold within the United States except pursuant to an exemption from the registration requirements of the U.S. Securities Act.
Summary of Key Terms of New Second Lien Notes
A summary of certain terms of the New Second Lien Notes under the New Notes Indenture are as follows:
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Principal Amount
Assuming an Effective Date of April 30, 2020, the aggregate principal amount of the New Second Lien Notes will be approximately $319 million, issued as one series of notes. The final aggregate principal amount of New Second Lien Notes to be issued pursuant to the Transaction will depend on the aggregate amount of interest accrued in respect of the Existing Notes up to the Effective Date.
Maturity Date
The New Second Lien Notes will mature on April 30, 2027.
Interest Rate
The interest rate in respect of the New Second Lien Notes is 8.500% per annum.
Interest Payment Dates
Interest on the New Second Lien Notes is payable semi-annually in arrears on April 30 and October 30 of each year, commencing on October 30, 2020.
Guarantors
The New Second Lien Notes will be fully and unconditionally guaranteed, jointly and severally, on a senior basis by each of Sherritts current and future wholly owned subsidiaries (other than immaterial subsidiaries) and other than (i) New Providence Metals Marketing Inc., a wholly-owned entity, undertaking marketing activities in respect of the Corporations nickel operations and certain of its joint ventures, and (ii) MMI, a wholly-owned single purpose entity holding the Corporations remaining interests (if any) in the Ambatovy Joint Venture following the implementation of the Plan.
The guarantors in respect of the New Second Lien Notes will be the New Notes Guarantors.
A guarantee by a New Notes Guarantor may be unconditionally released and discharged upon (i) such guarantor becoming an immaterial subsidiary or (ii) such New Notes Guarantor being released from its guarantee obligations under the Revolving Bank Facility (except for any release resulting from the repayment and termination of the Revolving Bank Facility).
Security and Rank
The New Second Lien Notes and the guarantees thereof will be secured by substantially all personal property and assets of Sherritt and each of the New Notes Guarantors, pursuant to Collateral Documents in substantially the same form as those provided in favour of the agent for the benefit of itself and the lenders under the Revolving Bank Facility. The guarantee provided by CNWL Oil (Espana) S.A., a company formed under the laws of Spain, shall not be secured unless and until such entity provides security in favour of the agent for the benefit of itself and the lenders under the Revolving Bank Facility, at which time such entity shall grant security in respect of its guarantee in substantially the same form.
The liens securing the New Second Lien Notes will be junior in priority to any lien granted at any time to secure the Revolving Bank Facility. In addition, the Revolving Bank Facility Lenders have provided financing to and have obtained guarantees from the non-wholly owned entities forming part of the Moa Joint Venture and New Providence Metals Marketing Inc., and as a result will have liens on certain assets of such non-wholly owned entities and New Providence Metals Marketing Inc., which assets will not form part of the Collateral.
Except for any release resulting from the repayment and termination of the Revolving Bank Facility, the liens securing the New Second Lien Notes and the guarantees thereof shall be released upon the release by the agent under the Revolving Bank Facility of the liens granted in its favour by Sherritt or any New Notes Guarantor, as applicable.
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Optional Redemption
Sherritt will be entitled to redeem at any time prior to maturity, from time to time, all or a portion of the New Second Lien Notes at (i) 103% of the redeemed principal amount, plus accrued and unpaid interest on the redeemed amount, until the final year prior to maturity, and (ii) at par, plus accrued and unpaid interest on the redeemed amount, for the final year of maturity.
Mandatory Redemption
At any time that the aggregate outstanding principal amount of New Second Lien Notes together with any other indebtedness ranking pari passu therewith permitted under the New Notes Indenture is $150 million or more, the Corporation shall, subject to a minimum liquidity threshold of $75 million, be required to redeem New Second Lien Notes on a semi-annual basis on April 30 and October 30 of each year, from and after October 30, 2021, in a principal amount equal to 50% of the Corporations Excess Cash Flow (on the terms set forth in the New Notes Indenture).
REVOLVING BANK FACILITY AMENDMENTS
Pursuant to the Consent Agreement, the Corporation and the Revolving Bank Facility Lenders have, among other things, agreed that the Corporation and the Revolving Bank Facility Lenders will work to complete the Revolving Bank Facility Amendments, subject to the terms and conditions of the Consent Agreement. The Revolving Bank Facility Amendments will, among other things, permit the issuance of the New Second Lien Notes and the granting of the guarantees and security relating thereto and otherwise facilitate implementation of the Transaction. Implementation of the Revolving Bank Facility Amendments is one of the conditions to implementation of the Plan.
In addition, in connection with the Revolving Bank Facility Amendments, the agent under the Revolving Bank Facility, on behalf of the Revolving Bank Facility Lenders, the New Indenture Trustee, on behalf of the holders of New Second Lien Notes, Sherritt and the New Notes Guarantors, will enter into an intercreditor agreement on the principal terms set out in the Description of Notes and such other terms as the Revolving Bank Facility Lenders, the New Indenture Trustee and Sherritt may agree.
Expenses
The Corporation shall pay all fees, costs and expenses due to Goodmans LLP, NBF, Paradigm Capital, the Proxy, Information and Solicitation Agent and other advisors to the Corporation in connection with the development, negotiation and implementation of the Transaction. The estimated transaction costs payable by the Corporation in connection with the completion of the Transaction including, without limitation, filing fees and printing and mailing costs are currently expected to be approximately $9 million.
BACKGROUND TO AND REASONS FOR THE TRANSACTION
The following describes the general background to the Transaction and the conditions and events that led to the Corporations decision to pursue the Transaction. Based on the circumstances facing the Corporation, the Board believes that deleveraging the Corporation at this time and improving its capital structure and liquidity will bring greater stability to the Sherritt Business, enable Sherritt to be in a better position to withstand challenges relating to, among other things, exposure to volatile commodity prices and challenging geopolitical and market conditions, and to strengthen the Corporations financial condition.
Background to Transaction
The Sherritt Entities are principally focused on the production and sale of commodities, such as nickel, cobalt and oil, and power generation, with projects, operations and investments located primarily in Canada, Cuba and Madagascar. As a geographically-diverse and primarily commodity-based company, the Sherritt Entities are affected by various external macro-economic factors.
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One of the principal challenges facing the Corporation has been the significant historical debt levels that Sherritt has had for many years, which resulted primarily from a decision in 2007 to invest as a partner in building out one of the worlds largest lateritic nickel mining, processing and refining operations in Madagascar (the Ambatovy Joint Venture). In connection with such investment, Sherritt had significant funding requirements, which were exacerbated by cost overruns and unfavourable market conditions that contributed to Sherritts significant debt levels. Since Sherritt was released from its US$840 million guarantee in respect of the Ambatovy Joint Venture senior project financing in 2015, Sherritt took steps to reduce and address certain funding requirements and debt obligations relating to the Ambatovy Joint Venture.
Having a high level of debt and fixed cash interest payments has been a significant concern for Sherritt for a number of years. Accordingly, through an extended period of several years of low nickel prices, Sherritt has focused on debt reduction as a key strategic priority, and over the past six years, the Corporation has eliminated over $2 billion of debt from its balance sheet.
As of January 31, 2020, the Corporation had approximately $741 million of aggregate note, loan and revolving credit facility obligations outstanding with approximately $48 million in annual cash interest expenses, and remains challenged from a leverage and liquidity perspective. In addition, the Corporation has in place an approximately $45 million letter of credit for potential reclamation costs related to its Spanish oil assets.
Sherritt currently has cash resources and availability under its revolving credit facility to continue to operate its business in the normal course, and Sherritt does not have any near term maturity in respect of any of its non-revolving debt obligations, with Sherritts first key maturity date being in November 2021. Sherritt, however, remains focused on managing its cash resources particularly in light of the significant challenges it has been facing in Cuba, as well as various uncertainties around commodity prices and other industry challenges affecting the Sherritt Entities.
The recent increased tensions between the United States and Cuba have significantly impacted Sherritts ability to conduct its businesses in Cuba. Successive rounds of American sanctions against Cuba and its trading partners have adversely affected Cubas economy, its ability to access hard currency, and its ability to conduct international trade. Cubas challenges in accessing hard currency have significantly impacted Sherritts ability to collect receivables related to its Cuban operations (the Cuban Receivables), which together with the substantial minimum cash requirements under the Corporations revolving credit facility (which excludes cash of the Corporation held in Cuba) have put increased pressure on the Corporations liquidity position. As discussed further below, Sherritt has engaged in extensive efforts with its Cuban partners over an extended period of time to reduce its outstanding Cuban Receivables. Such efforts have culminated in a new agreement pursuant to the Cuban Receivables Agreement ratified in June 2019, with incremental US$5 million monthly payments to fund the operations of Energas and reduce overdue Cuban Receivables owing to Sherritt. While this new payment commitment from Sherritts Cuban partners is a positive step towards assisting Sherritt with its liquidity challenges that have in part resulted from the Corporations inability to collect its Cuban Receivables, there remains potential uncertainty regarding Sherritts Cuban operations and future collections in light of increased U.S. sanctions and other factors continuing to affect Cuba.
Sherritts operating results also depend significantly on commodity prices which are volatile and influenced by a variety of factors, including global economic and geopolitical conditions and region-specific factors. The volatility of nickel pricing over the past several years has in particular had a significant and compounding negative financial effect on Sherritt. While the pricing of other metals have generally rebounded from post-2008 financial crisis declines, nickel has suffered sustained pricing decline in comparison and nickel prices remain volatile. Cobalt prices have also experienced increased and significant volatility in recent years, with a decrease in prices of approximately 56% in the past two years up to January 31, 2020.
While the Corporation remains positive about the underlying nickel and cobalt market fundamentals in the long-term, the Corporations current capital structure, including its significant debt and corresponding cash interest costs, is a significant challenge for Sherritt in light of its cash flow and operational needs, the ongoing industry challenges and the complex global environment impacting the Sherritt Business.
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The trading price of the Corporations Existing Notes, which have traded at a significant discount to face value for an extended period of time, reflect the Corporations challenging and over-levered capital structure with respect to the Corporations liquidity.
As ongoing volatility in commodity pricing and increasing economic and geopolitical uncertainty continue to impact the Sherritt Entities, the Corporation has continued to focus on preserving liquidity and building balance sheet strength. The Corporation, overseen by the Board and with the assistance of financial and legal advisors, has undergone a detailed and proactive process to review potential strategic alternatives and transactions that may be available to the Corporation, with a view to improving Sherritts capital structure, addressing the Corporations significant debt levels and liquidity challenges, and strengthening Sherritts overall financial position for the benefit of the Corporation and its stakeholders.
Among other things, the Corporation reviewed in detail alternatives relating to raising additional secured debt in priority to its existing unsecured Existing Notes and CFA Loans, extending the maturities of one or more series of the Existing Notes and/or the CFA Loans, exchanging certain or all of its unsecured Existing Notes for new secured debt, exchanging debt for equity, purchasing Existing Notes for cancellation in the open market or pursuant to an auction, maintaining the status quo and certain other potential strategic alternatives.
Sherritt believes that a substantial reduction in its overall debt obligations and cash interest expenses is required at this time to provide a comprehensive solution that will right size Sherritts capital structure, improve the Corporations liquidity position and allow the Corporation to focus on continuing to improve operations and opportunities for the benefit of all stakeholders.
Based on its detailed review of potential available alternatives and the circumstances affecting the Corporation and its business, Sherritt determined that the Transaction is in the best interests of the Corporation and its stakeholders at this time and treats all affected stakeholders, regardless of maturity or interest rate, in a fair and balanced way considering all current circumstances.
The Transaction will, among other things, reduce Sherritts total debt by approximately $414 million, reduce annual cash interest expense by approximately $19 million and extend the maturity of the Corporations note obligations to 2027 by, among other things, exchanging the Corporations Existing Notes in the aggregate principal amount of approximately $588 million, together with all accrued and unpaid interest thereon, for the New Second Lien Notes and, where applicable, the Noteholder Early Consent Cash Consideration.
The Transaction will significantly reduce Sherritts existing debt obligations, which Sherritt believes will result in a more appropriate and sustainable capital structure that the Sherritt Business can support in the context of volatile commodity prices and the global economic and geopolitical challenges that impact the Sherritt Business. Sherritt believes that significantly reducing the Corporations debt obligations at this time will benefit Sherritt and its stakeholders by, among other things, bringing greater stability to the Sherritt Business and aligning the capital structure of the Corporation with the current nature of the Sherritt Business. The Corporation believes that completing the Transaction at this time will result in a comprehensive long-term solution to the Corporations currently over-leveraged position and will provide the Corporation with additional time to increase the value of the Sherritt Business in an improved commodity price and operating environment for the benefit of all stakeholders.
Sherritt believes that the Transaction provides the affected Noteholders and CFA Lenders with fair and appropriate consideration in the circumstances and in light of the alternatives available to the Corporation. The Transaction treats the Noteholders equally and provides them with security over all material assets of the Corporation. In addition, the terms of the New Second Lien Notes will include a mandatory redemption covenant requiring the Corporation, commencing in 2021, to apply 50% of its Excess Cash Flow, subject to a minimum liquidity threshold of $75 million, to redeem an equivalent portion of the New Second Lien Notes while the aggregate principal amount of New Second Lien Notes outstanding is $150 million or more. This prepayment mechanism is aimed at further reducing the outstanding note obligations of the Corporation in improved financial conditions. With respect to the CFA Lenders, the Corporation believes that the exchange of the CFA Loans, at the election of the CFA Lenders, for either the Corporations interest in the Ambatovy Joint Venture or Amended CFA Loans, as applicable, is appropriate in light of the value and structure of the CFA Loans.
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In connection with the Transaction, the Corporation has also entered into a consent and waiver agreement (the Consent Agreement) with the Revolving Bank Facility Lenders, pursuant to which the Corporation and the Revolving Bank Facility Lenders have, among other things, agreed that the Corporation shall commence the CBCA Proceedings and pursue the Transaction pursuant thereto, and that the Corporation and the Revolving Bank Facility Lenders will work to complete an amendment of the Revolving Bank Facility substantially concurrently with or prior to the implementation of the Transaction to allow for the implementation of the Transaction, including the issuance of the New Second Lien Notes, and such other matters as may be agreed by the Corporation and the Revolving Bank Facility Lenders (the Revolving Bank Facility Amendments), subject to the terms and conditions of the Consent Agreement. The maturity of the Revolving Bank Facility is currently April 30, 2020.
Should the Transaction not be implemented pursuant to the Plan for any reason, the Corporation will continue to review its available strategic alternatives and other potential transactions, including the use of the available $230 million secured debt basket under its Existing Notes Indenture to exchange one series, a combination of series or a portion of all series of its Existing Notes.
The industry challenges faced by the Sherritt Business as well as certain challenges in connection with the Ambatovy Joint Venture, among other things, are described in further detail below.
Industry Challenges
Sherritt faces a number of industry challenges posed by, among other things, fluctuating commodity prices, challenging market conditions and geopolitical uncertainties.
(i) Weakness in Commodity Prices
The Sherritt Business is principally focused on the sale of commodities, such as nickel, cobalt and oil, and as such, the Corporations operating results depend largely on market prices which are volatile and influenced by a variety of factors, including global economic conditions and region-specific factors. Sherritt has been particularly affected by depressed pricing in the metals market over an extended period of time. Nickel demand is strongly influenced by world macro-economic conditions which influence the international stainless steel industry, the largest consumer of nickel. Nickel demand had been trending upwards in early 2018 due to strong demand from the stainless steel industry and new demand for the production of lithium-ion batteries for electric vehicles. However, after increasing for the first half of 2018, subsequent market events and conditions, including international trade relations between the United States and China and market reaction to the announcement of a significant new Indonesian production facility, among other things, led to a softening in nickel prices.
Overall, nickel prices have experienced a material decrease since the beginning of 2014, with the average cash settlement price on the London Metals Exchange ranging from a high of US$9.62 per pound in May 2014, reaching a low of US$3.50 per pound in February 2016, and a closing price of US$5.75 per pound as at January 31, 2020.
In 2019, nickel prices had averaged approximately US$6.32 per pound and were below US$6.00 per pound for the majority of the year. In the Corporations third fiscal quarter of 2019, nickel prices experienced a modest recovery, partly due to the announcement of a ban on the exports of nickel mineral ore from Indonesia, reaching a 12-month high price of US$8.45 per pound on September 2, 2019, and then decreasing down to US$6.35 per pound as at December 31, 2019.
Nickel prices remain volatile as a result of ongoing uncertainty around trade relations between the United States and China, the strength of U.S. currency, concerns of a slowdown in Chinas economy and, more recently, the impact of the Coronavirus. As at March 5, 2020, nickel prices were at US$5.81 per pound.
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Set out below is a summary chart showing the spot price of nickel since the beginning of 2014:
HISTORICAL NICKEL PRICE - SINCE 2014
The cobalt market has also been subject to significant price volatility in recent years. Recent growth in the chemical sector, primarily in battery chemicals, and growing reliance on mobile phones and tablet technologies, had led to an increase in demand for cobalt that caused a temporary surge in pricing, reaching a high of US$44.08 per pound in April 2018. While global cobalt production historically has not been particularly responsive to changing demand, the dramatic price increase led to a significant increase in supply, particularly from production out of the Democratic Republic of the Congo. The supply increase, along with a growing market sentiment that prices had risen prematurely, among other factors, resulted in a significant price decline in the second half of 2018 such that prices declined approximately 32% in the second half of 2018 after previously having risen for eight consecutive quarters. The price decline continued into 2019, resulting in an approximate 72% decline from the peak price in 2018 to US$12.43 per pound in July 2019. Since that time, cobalt prices have experienced a modest recovery, partly due to the announcement that Glencores Mutanda mine would be placed on care and maintenance at the end of 2019, reaching a high price of US$17.93 per pound in October 2019, and then decreasing to US$16.70 per pound as at January 31, 2020.
As at March 5, 2020, cobalt prices were at US$17.18 per pound.
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Set out below is a summary chart showing the spot price of cobalt since the beginning of 2014:
HISTORICAL COBALT PRICE - SINCE 2014
(ii) Geopolitical Instability
The Sherritt Entities are the largest independent energy producers in Cuba and all of their Cuban oil and electricity production is sold to agencies of the Government of Cuba. Accordingly, the Corporation has been particularly impacted by geopolitical events affecting Cuba, including current increased tensions with the United States.
The United States, following a brief period of progress and improved economic relations with Cuba, has reinforced a policy of sanctions and economic isolation in respect to its Cuba dealings. Among other things, in May 2019 the United States decided to cease the suspension of Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (commonly known as the Helms-Burton Act), which authorizes United States nationals to commence actions in U.S. courts against individuals or entities that traffic in Cuban property confiscated by the Cuban government and for which the United States nationals own the claim to such property.
Sherritt has and expects to continue to operate its business in Cuba in the normal course. However, the difficult political relationship between Cuba and the United States has adversely impacted Sherritts Cuban businesses, including, among other things, its ability to collect its Cuban Receivables as Cuba deals with the economic consequences related to the shift in United States foreign policy. Since the current U.S. administration has taken office, it has implemented successive rollbacks of the previous administrations relaxation of sanctions against Cuba and its trading partners, including without limitation, restricting cruise ships from going to Cuba, restricting U.S. persons from sending cash to relatives in Cuba, limiting air travel to Cuba, sanctioning ships (including those carrying fuel) travelling to Cuba and banning a number of executives of companies doing business in Cuba from travelling to the United States.
American sanctions against Cuba and its trading partners have, among other things, adversely affected Cubas ability to access foreign currency, leading to the Cuban agencies which purchase the Corporations Cuban oil and electricity production having difficulties discharging their foreign currency obligations. Energas (as defined below) holds significant Cuban cash but such Cuban cash has been difficult to exchange into foreign currency based on economic circumstances currently in Cuba. As a result, as at March 31, 2019, Sherritt was owed a total of approximately US$159.9 million in overdue Cuban Receivables (increased from the approximately US$126.7 million in Cuban Receivables that was owing to Sherritt the prior year as at March 31, 2018).
On June 13, 2019, Sherritt announced that it had finalized an agreement (the Cuban Receivables Agreement) with its Cuban partners on a payment plan to reduce the overdue Cuban Receivables. Pursuant to the Cuban Receivables Agreement, Sherritt is to receive payments averaging US$2.5 million per month beginning in May 2019 in respect of the Cuban Receivables. The monthly payments under the Cuban Receivables Agreement are made through a currency exchange involving the joint venture (in which Sherritt is an equal partner with General Nickel Company S.A., a Cuban company) that mines, processes, refines and markets lateritic nickel and cobalt in Cuba,
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Alberta and the Bahamas (the Moa Joint Venture) and Energas S.A., a Cuban joint venture corporation (in which Sherritt holds a one-third interest through its wholly-owned subsidiary Sherritt Power (Bahamas) Inc.) established to operate facilities in connection with the power business (Energas), with foreign currency that would be used by the Moa Joint Venture to pay for specified costs in Cuba instead being provided to Sherritt in exchange for local currency held by Energas.
Since May 2019, Sherritt has received US$23.9 million pursuant to the Cuban Receivables Agreement. A balance of approximately US$159.6 million of Cuban Receivables remains outstanding as at January 31, 2020. Overall, the funds received by Sherritt in respect of its Cuban Receivables have been significantly below the Corporations estimates.
The inability for Sherritt to receive payments in respect of the Cuban Receivables has further exacerbated the Corporations liquidity challenges, including with respect to maintaining its minimum cash balances pursuant to the Revolving Bank Facility (as further discussed below), which minimum cash requirement excludes the Cuban cash held at Energas.
The Corporation has continued to engage with its Cuban partners in an effort to further reduce its outstanding Cuban Receivables and provide the Corporation with an increased and more stable cash flow from its Cuban businesses. Management has engaged in extensive discussions with its Cuban partners and government officials and has attended a number of in-person meetings in Cuba in order to advance these important discussions. While the sanctions against Cuba continue to negatively impact Cubas ability to discharge foreign currency obligations, Sherritts extensive efforts have culminated in the Corporation reaching a new agreement with its Cuban partners pursuant to which Sherritts Cuban partners have committed to increase the US$2.5 million monthly payments to Sherritt pursuant to the Cuban Receivables Agreement, with incremental US$5 million monthly payments to fund Energas operations and reduce the overdue Cuban Receivables owing to Sherritt.
Sherritt believes that this commitment from its Cuban partners to increase payment in respect of the Cuban Receivables is a positive step towards assisting Sherritt with its liquidity challenges that have resulted, in part, from the Corporations inability to collect its Cuban Receivables, however, there remains potential uncertainty regarding Sherritts Cuban operations and future collections due to the unstable political relationship between Cuba and the United States, as well as certain other factors affecting the Cuban economy.
In addition to sanctions imposed on Cuba, economic and trade sanctions imposed on Venezuela, Cubas largest oil supplier, have negatively impacted supplies in Cuba. For example, diesel availability in Cuba was very limited in August and September 2019 and required the implementation of diesel conservation measures at the Moa Joint Venture. Such diesel conservation efforts have limited the use of mining equipment at the Moa Joint Venture in the fourth quarter of 2019, negatively affecting mining and processing operations.
Ambatovy Joint Venture Investment
Sherritt is the operator of and, through its subsidiary Madagascar Mineral Investments Ltd, holds an approximately 12% interest in each of AMSA and DMSA, which own one of the worlds largest lateritic nickel mining, processing and refining operations in Madagascar. Sherritt previously held a 40% interest in the Ambatovy Joint Venture, which was reduced to the current 12% interest as part of the Ambatovy Restructuring (as defined and described below) completed in 2017.
Sherritt acquired its initial 40% interest in the Ambatovy Joint Venture by way of an acquisition of Dynatec Corporation (Dynatec) for approximately $1.6 billion in 2007, with the net acquisition cost following the sale of certain assets being approximately $1 billion. Around this time, nickel prices were approximately US$25 per pound.
Sherritts partners in the Ambatovy Joint Venture (collectively with Sherritt, the Ambatovy Partners) are Sumitomo Corporation, which currently holds an approximately 47.7% interest in the Ambatovy Joint Venture (initially 27.5%), and Korea Resources Corporation, which currently holds and/or controls an approximately 40.3% interest in the Ambatovy Joint Venture (initially 27.5%). SNC-Lavalin Inc. was also previously an Ambatovy Partner with a 5% interest in the Ambatovy Joint Venture but sold such interest together with its interest in the Aggregate CFA Loans (as defined below) to Sumitomo Corporation in September 2015.
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In 2007, Sherritt and the other Ambatovy Partners committed to the construction of the Ambatovy Joint Venture for an estimated cost of US$3.3 billion, approximately US$2.1 billion of which was funded by way of project financing (the Ambatovy Senior Project Financing) from certain senior project lenders (the Ambatovy Senior Lenders) loaned to the Ambatovy Joint Venture. The Ambatovy Senior Project Financing is secured on a senior priority basis by substantially all of the assets of the Ambatovy Joint Venture, and was initially guaranteed severally on a pro rata basis by all of the Ambatovy Partners, including Sherritt. As a result, Sherritt was subject to guarantee obligations of US$840 million until the Ambatovy Joint Venture achieved financial completion.
The construction and development of the Ambatovy Joint Venture has also been funded over time by significant loans and equity investments by the Ambatovy Partners, including Sherritt, in an aggregate amount exceeding US$6 billion. Sherritts portion of such funding, which has been funded, in part by way of the Aggregate CFA Loans, has been approximately US$2 billion, and together with its acquisition of Dynatec in 2007, has amounted to a total investment of over US$3 billion.
The subordinated loans and equity financing provided by the Ambatovy Partners to the Ambatovy Joint Venture rank junior to the Ambatovy Senior Project Financing provided by the Ambatovy Senior Lenders, and portions of such subordinated loans may, from time to time, be converted into equity of AMSA and DMSA pursuant to the terms of the existing arrangements among the parties. As at December 31, 2019, the aggregate amount of subordinated loans owing by AMSA and DMSA, collectively, to MMI total approximately US$159.2 million in principal amount, plus accrued and unpaid interest.
From the inception of the Ambatovy Joint Venture in 2007 until December 1, 2015, Sherritt funded its 40% pro rata portion of all cash calls for shareholder funding due for the Ambatovy Joint Venture pursuant to the shareholders agreement among the Ambatovy Partners (the Ambatovy Shareholders Agreement).
A portion of Sherritts pro rata shareholder funding for the Ambatovy Joint Venture construction was loaned to Sherritt in 2008 through the CFA Loans, which are currently held by the CFA Lenders.
In June 2009, Sherritt finalized further arrangements for new, non-recourse loans from the Ambatovy Partners to fund Sherritts pro rata share of additional shareholder funding for the Ambatovy Joint Venture with an interest rate of 6-month LIBOR plus 7% per annum (the Additional CFA Loans and together with the CFA Loans, the Aggregate CFA Loans).
Over the following period, the capital costs to develop the Ambatovy Joint Venture continued to increase, and Sherritt continued funding ongoing cash calls to the Ambatovy Joint Venture pursuant to its obligations under the Ambatovy Shareholders Agreement and its guarantee in respect of the Ambatovy Senior Project Financing.
In September 2015, the Ambatovy Joint Venture achieved financial completion, resulting in the termination of the Ambatovy Partners guarantees (including Sherritts guarantee) in respect of the Ambatovy Senior Project Financing, and thus the Ambatovy Senior Project Financing became non-recourse as against the Ambatovy Partners, subject to the Ambatovy Senior Lenders continuing security interest in the Ambatovy Joint Ventures assets and the interests of the Ambatovy Partners in the Ambatovy Joint Venture.
For the period until December 1, 2015, Sherritt had funded, in the aggregate, approximately US$2.2 billion in respect of its shareholder funding obligations for the Ambatovy Joint Venture, of which US$0.7 billion had been loaned to Sherritt under the Aggregate CFA Loans (plus accrued interest).
Following December 1, 2015, once financial completion had been achieved and the Corporation was no longer liable for the US$840 million completion guarantee, in order to preserve liquidity, Sherritt elected not to fund cash calls for the Ambatovy Joint Venture and engaged in discussions with the other Ambatovy Partners in respect of a potential restructuring of Sherritts interest in the Ambatovy Joint Venture. At this time, the Ambatovy Senior Project Financing had no further direct recourse to Sherritt.
In December 2017, the Ambatovy Partners completed a restructuring of the Ambatovy Joint Venture (the Ambatovy Restructuring) that resulted in among other things, the transfer by Sherritt of 28% of its interest in the Ambatovy Joint Venture to the other Ambatovy Partners in exchange for the elimination of the Additional CFA
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Loans in the aggregate amount of $1.4 billion at such time, and the retention by Sherritt of a 12% interest in the Ambatovy Joint Venture.
As part of the Ambatovy Restructuring, Sherritt was required to resume funding cash calls in respect of its remaining 12% interest in the Ambatovy Joint Venture, including retroactively from the end of 2015. On implementation of the Ambatovy Restructuring, Sherritt funded approximately US$38 million to fulfill its prior non-funding, including accrued interest. Sherritt also made an additional payment of approximately US$10 million, which was placed into escrow to cover potential future funding requirements by the Ambatovy Joint Venture. The escrowed funds have since been applied to subsequent cash call obligations of Sherritt in respect of the Ambatovy Joint Venture.
As part of the Ambatovy Restructuring, Sherritt also committed to remain as operator of the Ambatovy Joint Venture until at least 2024.
In March 2019, once the required escrowed funds had been exhausted, in order to preserve liquidity, Sherritt determined not to fund its 12% share of a US$45 million cash call from the Ambatovy Joint Venture (the March 2019 Ambatovy Non-Funding). As a result, among other things, Sherritt became a defaulting shareholder under the Ambatovy Shareholders Agreement, losing its voting rights at the Ambatovy Joint Venture board level, and a limited recourse default was triggered under the CFA Loans (as further described below). Thereafter, there was an additional approximately US$180 million of cash calls from the Ambatovy Joint Venture in 2019 and to date in 2020 (for an aggregate of approximately US$225 million), of which Sherritt did not fund its 12% share.
Sherritts interest in the Ambatovy Joint Venture is a long-term investment of Sherritt and does not currently produce any cash distributions to the Ambatovy Partners based on, among other things, current nickel prices, the payment obligations associated with the Ambatovy Senior Project Financing and the priority distributions to the other Ambatovy Partners who have provided further funding since Sherritts March 2019 Ambatovy Non-Funding. Absent a meaningful increase in current nickel prices, it may be a significant period of time until there are cash distributions from the Ambatovy Joint Venture available to Sherritt.
Efforts to Address Debt, Liquidity and Related Challenges
For an extended period of time, Sherritt has focused on debt reduction, preservation of liquidity and balance sheet strength as key strategic priorities, and over the past five years, the Corporation has eliminated over $2 billion of debt from its balance sheet.
Coal Transaction and Related Debt Reduction Efforts
Pursuant to an agreement dated December 24, 2013, on April 28, 2014 the Corporation completed the divestiture of its coal business for total consideration of $946 million. The operating assets of the coal business were sold to Westmoreland Coal Company for total consideration of $465 million. The Corporations royalty portfolio and interest in coal development assets were sold to a group led by Altius Minerals Corp., for cash consideration of $481 million. The amount outstanding under the coal revolving credit facility, which was used primarily for letters of credit and short-term funding of the coal business, was repaid in full and subsequently terminated.
A significant portion of the cash proceeds of the coal transaction were used to strengthen the Corporations balance sheet through debt reduction. To this end, the Corporation made tender offers to purchase between $100 million and $150 million principal amount of its 8.00% Debentures (as defined below) and between $200 million and $250 million principal amount of its 7.50% Debentures (as defined below), together with the solicitation of consent for certain amendments to the indentures under which those debentures were originally issued. The Corporation made payment on $150 million principal amount of its 8.00% Debentures and $250 million principal amount of its 7.50% Debentures and amended and restated the indentures governing the 8.00% Debentures and 7.50% Debentures on October 10, 2014. As of December 31, 2014, $250 million principal amount of the 8.00% Debentures and $250 million of the principal amount of the 7.50% Debentures remained outstanding.
On October 10, 2014, the Corporation completed its previously announced offering of the 7.875% Notes (as defined below). The net proceeds of the offering, together with cash on hand, were used to redeem all of the $275 million
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outstanding principal amount of its 7.75% Senior Unsecured Debentures due October 15, 2015, including the applicable make-whole premiums on November 10, 2014.
Existing Notes Reductions and Maturity Extension
The Existing Notes were originally issued by Sherritt as $400 million of 8.00% senior unsecured debentures due November 15, 2018 issued on November 2, 2011 (the 8.00% Debentures), $500 million of 7.50% senior unsecured debentures due September 24, 2020 issued on September 24, 2012 (the 7.50% Debentures), and $250 million of 7.875% senior unsecured notes due October 11, 2022 issued on October 10, 2014 (the 7.875% Notes, together with the 8.00% Debentures and the 7.50% Debentures, collectively, the Original Notes). Pursuant to a plan of arrangement transaction completed by Sherritt in 2016 (the 2016 Notes Extension Transaction), as part of its efforts to maintain balance sheet strength and address its then upcoming Original Notes maturities, the Original Notes were amended and exchanged for the Existing Notes with extended maturities of November 15, 2021, September 24, 2023 and October 11, 2025, respectively. At a time of continuing decline in nickel prices, the 2016 Notes Extension Transaction offered substantial benefit to the Corporation by, among other things, mitigating the risk associated with its then upcoming maturities, providing greater stability to the Corporations capital structure, and providing the Corporation with time to allow commodity prices to recover. The Corporation received substantial support for the 2016 Notes Extension Transaction from the holders of the Original Notes, with 99.85% of the votes cast by holders of the Original Notes (representing over 94% of principal amount of the Original Notes) being cast in favour of the 2016 Notes Extension Transaction. The 2016 Notes Extension Transaction was approved by the Court on July 27, 2016 and was completed on July 29, 2016.
The Corporation has also made extensive efforts to reduce its Existing Note obligations through a number of note repurchase transactions over an extended period of time. Most recently in 2018, in a period of higher cobalt prices, the Corporation raised approximately $132 million through a public equity offering, and from such proceeds repurchased approximately $121 million of aggregate principal amount of Existing Notes for approximately $110 million, plus accrued interest, by way of a Dutch auction process. The Corporation also shortly thereafter repurchased an additional approximately $10.7 million of principal amount of Existing Notes. In aggregate, the Corporation has reduced the aggregate principal amount of Existing Notes currently outstanding to approximately $588 million (approximately $170 million of Existing 2021 Notes, $198 million of Existing 2023 Notes and $221 million of Existing 2025 Notes), plus accrued and unpaid interest.
Ambatovy Restructuring and Related Debt Reduction Efforts
As discussed above, in 2017, Sherritt and the other Ambatovy Partners completed the Ambatovy Restructuring, which resulted in the elimination of approximately $1.4 billion of debt obligations owing by Sherritt to the CFA Lenders, and reduced Sherritts interest in the Ambatovy Joint Venture as well as its corresponding ongoing shareholder funding obligations from 40% to 12%.
Commencing in March 2019, Sherritt, with a view to preserving liquidity, determined to not fund its 12% of the cash calls from the Ambatovy Joint Venture, becoming a defaulting shareholder under the Ambatovy Shareholders Agreement and defaulting under the CFA Loan Agreements. In total, there were approximately US$225 million in cash calls in 2019 and to date in 2020 in respect of the Ambatovy Joint Venture. Sherritt does not currently intend to make any payments in respect of its portion of such cash calls.
Cost Reduction Efforts
Given the challenging market conditions facing the Corporation, Sherritt has over an extended period of time implemented a number of cost savings initiatives and austerity measures in connection with the Corporations ongoing efforts to manage and preserve liquidity.
In 2018, administrative costs were reduced by $6.1 million through various cost savings initiatives, including the relocation of the Toronto corporate office to lower cost premises, lower consulting fees and reduced employee costs.
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For the year ending December 31, 2019, Sherritts administrative costs, excluding the non-cash impacts of stock-based compensation and depreciation, were reduced by a further 5% from 2018 due to the elimination of discretionary expenditures and limiting the number of new employee hires.
Revolving Bank Facility Amendments and Waivers
Pursuant to the Revolving Bank Facility Agreement, the Revolving Bank Facility Lenders have made available to Sherritt the Revolving Bank Facility in the aggregate amount of $70 million at an interest rate of prime plus 3.00% per annum, or bankers acceptances plus 4.00%. As at December 31, 2019, approximately $8.0 million had been drawn on the Revolving Bank Facility and there were approximately $45 million of letters of credit outstanding.
The obligations under the Revolving Bank Facility Agreement are guaranteed by the Revolving Bank Facility Guarantors and secured with inventory and receivables from the Moa Joint Venture as well as cash and cash equivalents of certain additional subsidiaries of Sherritt held at National Bank of Canada. (the Existing Revolving Bank Facility Collateral). Pursuant to the Consent Agreement, in addition to the Revolving Bank Facility Guarantors, each of the New Notes Guarantors will guarantee the obligations under the Revolving Bank Facility Agreement, and Sherritt and the New Notes Guarantors will, in addition to the Existing Revolving Bank Facility Collateral, grant a security interest in substantially all assets of Sherritt and each of the New Notes Guarantors.
Among other covenants, the Revolving Bank Facility Agreement requires Sherritt to maintain a minimum cash balance, with the original requirement being $100 million of cash and cash equivalents (including availability under the Revolving Bank Facility and excluding the Corporations Cuban cash) (the Minimum Cash Balance Requirement), which has had a significant impact on the Corporations liquidity position and ability to utilize available cash. As a result of the liquidity challenges faced by the Corporation, as described herein, pursuant to the consent letter dated September 20, 2019, the Minimum Cash Balance Requirement was reduced to $60 million until but excluding December 31, 2019, and then $70 million thereafter. To date, the Corporation has maintained compliance with its Minimum Cash Balance Requirement under the Revolving Bank Facility Agreement.
Pursuant to the Revolving Bank Facility Agreement, the March 2019 Ambatovy Non-Funding would have constituted an event of default under Revolving Bank Facility Agreement. This potential default was waived by the Revolving Bank Facility Lenders prior to its occurrence, together with any potential defaults for any subsequent non-funding of cash calls relating to the Ambatovy Joint Venture, through to the April 30, 2020 maturity of the Revolving Bank Facility.
Since June 2019, the Corporation has received certain waivers in respect of potential non-compliance with certain covenants under the Revolving Bank Facility Agreement, collectively for the Corporations second, third and fourth fiscal quarters of 2019, and the first fiscal quarter of 2020. The most recent waiver provided in December 2019 amended the minimum EBITDA requirement to $70 million (originally $100 million) for the fourth fiscal quarter of 2019 and first fiscal quarter of 2020, and amended the EBITDA-to-interest expense requirement for such period to 1.35:1 (originally 1.75:1).
Sherritt continues to be in dialogue with the agent under the Revolving Bank Facility in connection with the Revolving Bank Facility.
The Revolving Bank Facility is not being affected pursuant to the Plan. Sherritt and the Revolving Bank Facility Lenders have consensually agreed pursuant to the Consent Agreement to pursue the Revolving Bank Facility Amendments in connection with the implementation of the Transaction, subject to the terms and conditions of the Consent Agreement.
Development of the Transaction
While the Corporation has achieved significant debt reduction over the last number of years and has been carefully managing its liquidity position, the Corporation continues to have an over-leveraged capital structure and faces continuing liquidity challenges. The Corporation currently has cash resources and no immediate maturities in respect of its debt obligations, however, the Corporations remaining high level of debt with significant fixed
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interest payments has been a key concern for Sherritt for an extended period of years based on the volatile nature of nickel and cobalt prices over many years and the challenging market conditions facing the Corporation.
The Corporation has continued its efforts to explore further alternatives or transactions available to the Corporation in order to reduce its debt levels and improve its liquidity. In the spring of 2019, the Corporation engaged NBF, as financial advisor, and Goodmans LLP, as legal counsel, to assist the Corporation in reviewing and considering potential strategic alternatives.
The Corporation, overseen by the Board and with the assistance of NBF and Goodmans LLP, reviewed in detail numerous potential alternatives, including raising additional secured debt in priority to its unsecured Existing Notes and CFA Loans, extending the maturities of one or more series of the Existing Notes and/or the CFA Loans, exchanging certain or all of its unsecured Existing Notes for new secured debt, exchanging debt for equity, purchasing Existing Notes for cancellation in the open market or pursuant to an auction, maintaining the status quo and certain other potential strategic alternatives. The Corporation has not conducted a sale process and does not believe the time or circumstances are right in order to maximize value for all stakeholders pursuant to a sale.
Following its detailed review process, and after receiving advice from the Corporations professional advisors, the Board determined that the Transaction is the best available alternative for the Corporation and its stakeholders at this time and treats the affected stakeholders, regardless of maturity or interest rate, in a fair and balanced way considering all current circumstances, and the Board authorized the Corporation to seek to implement the Transaction.
Reasons for Transaction
Sherritts Board has determined, based on a number of factors and considerations, that the Transaction is in the best interests of the Corporation and its stakeholders.
The following is a summary of the principal reasons for the recommendation of the Board that Debtholders VOTE FOR the Transaction:
| All holders of Existing Notes will be treated in a fair and balanced way and will receive equal treatment in the form of New Second Lien Notes, and will receive security over all of the material assets of the Corporation. |
| The New Second Lien Notes will rank in priority to unsecured obligations of the Corporation, as described in more detail in the Description of Notes. |
| The Existing Notes, as pari passu senior unsecured obligations of the Corporation, will be treated on an equal basis pursuant to the Transaction. Alternative transactions available to the Corporation could disproportionately benefit holders of certain series of Existing Notes and increase the risk of payment or recovery to holders of other series of Existing Notes. |
| Sherritt will have an improved capital structure and improved liquidity position, providing Sherritt with stronger financial footing to be able to better respond to evolving market conditions and pursue its strategic and business objectives. |
| With an improved capital structure, the Transaction will put the Corporation in a stronger position to satisfy all of the obligations under the New Second Lien Notes. |
| The mandatory redemption covenant in respect of the New Second Lien Notes requires additional prepayments at par in respect of such New Second Lien Notes in improved financial conditions. |
| The Transaction reduces the risk of potential debt defaults and month-to-month liquidity challenges. |
| The Transaction will result in reduced debt ratios to be more in line with the industry and market averages. |
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| The Transaction will better position the Corporation to withstand any ongoing challenges in the collections of overdue Cuban Receivables, overall market conditions and volatility in commodity prices. |
| The Transaction extends the maturity of the Corporations note obligations to 2027, providing the Corporation with additional time to improve the business and create value for the benefit of stakeholders. |
| The exchange of the CFA Loans for either (i) the Ambatovy Shares and Ambatovy Debt, or (ii) the Amended CFA Loans, as applicable, is appropriate in light of the value and structure of the CFA Loans and eliminates a significant amount of Sherritts historic debt obligations in respect of the Ambatovy Joint Venture. |
| The Transaction adheres to Sherritts objectives of bringing greater stability to the Corporations capital structure and treating all stakeholders in a fair and reasonable manner. |
| The Transaction was determined to be the best available alternative for the benefit of the Corporation and its stakeholders after a detailed review of potential strategic alternatives, with the assistance of the Corporations legal and financial advisors. |
The following is a summary of the principal reasons for the recommendation of the Board that Shareholders VOTE FOR the Stated Capital Reduction:
| The Stated Capital Reduction to be approved by Shareholders is a preliminary step in connection with implementing the Transaction under the CBCA Proceedings, which Transaction is in the best interests of the Corporation, including the Shareholders. |
| The Corporations total debt will be reduced by approximately $414 million. |
| The Corporations annual cash interest expense will be reduced by approximately $19 million. |
| Sherritt will have an improved capital structure and improved liquidity position, providing Sherritt with stronger financial footing to be able to better respond to evolving market conditions and pursue its strategic and business objectives. |
| The Transaction reduces the risk of potential debt defaults and month-to-month liquidity challenges. |
| The Transaction will result in reduced debt levels to be more in line with the industry and market averages. |
| The Transaction will better position the Corporation to withstand any ongoing challenges in the collections of overdue Cuban Receivables, overall market conditions and volatility in commodity prices. |
| The Transaction extends the maturity of the Corporations note obligations to 2027, providing the Corporation with additional time to improve the business and create value for the benefit of stakeholders. |
| The Transaction adheres to Sherritts objectives of bringing greater stability to the Corporations capital structure and treating all stakeholders in a fair and reasonable manner. |
| The Transaction was determined to be the best available alternative for the benefit of the Corporation and its stakeholders after a detailed review of potential strategic alternatives, with the assistance of the Corporations legal and financial advisors. |
| The exchange of the CFA Loans for either (i) the Ambatovy Shares and Ambatovy Debt, or (ii) the Amended CFA Loans, as applicable, is appropriate in light of the value and structure of the CFA Loans and eliminates a significant amount of Sherritts historic debt obligations in respect of the Ambatovy Joint Venture. |
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Paradigm Capital Opinions
Paradigm Capital was retained as the independent financial advisor to the Corporation and the Board in connection with the Transaction.
Paradigm Capital was asked to provide to the Board: (a) a CBCA opinion in the form described in paragraph 4.04 of Industry Canadas Policy Statement 15-1 Policy Concerning Arrangements under Section 192 of the CBCA dated as of January 4, 2010, and (b) a fairness opinion in respect of the Transaction.
In the Paradigm Capital Opinions, Paradigm Capital concludes that, as of the date of the Paradigm Capital Opinions: (i) the Noteholders and the CFA Lenders, respectively, would be in a better position, from a financial point of view, under the Transaction than if the Corporation were liquidated (the CBCA Opinion); and (ii) the Transaction is fair, from a financial point of view, to the Corporation (the Fairness Opinion).
The full text of the Paradigm Capital Opinions which set out, among other things, the assumptions made, information reviewed and matters considered by Paradigm Capital in rendering the Paradigm Capital Opinions, as well as the limitations and qualifications the opinions are subject to, is attached as Appendix G to this Circular. Debtholders are urged to read the Paradigm Capital Opinions in their entirety. The summaries of the Paradigm Capital Opinions in this Circular are qualified in their entirety by reference to the full text of such opinions. The Paradigm Capital Opinions do not constitute a recommendation to any Debtholder as to how such Debtholder should vote with respect to the Debtholder Arrangement Resolution.
Engagement of Paradigm Capital
Pursuant to an engagement letter (the Paradigm Capital Engagement Agreement) dated September 4, 2019, Paradigm Capital was formally engaged as an independent financial advisor to the Corporation and the Board in connection with the Transaction, and to prepare and deliver to the Board opinions in accordance with the applicable legal and regulatory requirements for the Transaction including, without limitation, as contemplated under Section 192 of the CBCA. The Paradigm Capital Engagement Agreement provides for a fixed flat fee for providing the Paradigm Capital Opinions and Paradigm Capital is not entitled to any additional fees related to the completion of the Transaction. In addition, Paradigm Capital is to be reimbursed for its reasonable out-of-pocket expenses, including fees paid to its legal counsel in respect of advice rendered to Paradigm Capital in carrying out its obligations under the Paradigm Capital Engagement Agreement, and is to be indemnified by the Corporation in respect of certain liabilities that might arise out of Paradigm Capitals engagement.
To the knowledge of the Corporation, and except as described below, none of Paradigm Capital, its associates or affiliates, is an insider, associate or affiliate (as those terms are defined in the Securities Act (Ontario)) of the Corporation, and Paradigm Capital is not an advisor to any person or company other than to the Board with respect to the Transaction.
Paradigm Capital is currently engaged as an advisor for the Corporation on a strategic assignment unrelated to the Transaction. Paradigm Capital, the Corporation and the Board agree that such strategic advisory engagement does not affect Paradigm Capitals independence or its ability to provide the Paradigm Capital Opinions. In addition, John Warwick, a former investment banker at Paradigm Capital and a current special advisor to and shareholder of Paradigm Capital, is currently a member of the Board. Paradigm Capital, the Corporation and the Board agree that this relationship does not affect Paradigm Capitals independence or its ability to provide the Paradigm Capital Opinions.
Credentials of Paradigm Capital
Paradigm Capital is a Canadian independent investment banking firm with a sales, trading, research and corporate finance focus providing services for institutional investors and corporations. Paradigm Capital was founded in 1999 and is a member of the Toronto Stock Exchange, the TSX Venture Exchange and the Investment Industry Regulatory Organization of Canada. Paradigm Capital has extensive advisory, valuation, mergers & acquisitions and corporate governance experience.
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The Paradigm Capital Opinions are the opinions of Paradigm Capital and the form and content therein has been reviewed and approved for release by a group of senior investment bankers of Paradigm Capital each of whom is experienced in valuations, mergers & acquisitions and fairness opinion matters.
Court Approval of Arrangement
The Arrangement is subject to a determination of the Court that the terms of the Arrangement are fair and reasonable, both procedurally and substantively.
RECOMMENDATION OF THE BOARD
The Board, after careful consideration of a number of factors and potential strategic alternatives, including the foregoing Reasons for Transaction and the Paradigm Capital Opinions, and upon consultation with and advice from the Corporations financial advisor and outside counsel, determined unanimously, that the Transaction is in the best interests of the Corporation and its stakeholders and the Board has unanimously determined to recommend to the Debtholders that they VOTE FOR the Debtholders Arrangement Resolution at the Debtholders Meeting and to Shareholders that they VOTE FOR the Stated Capital Reduction Resolution at the Shareholders Meeting. In making its determination and recommendation, the Board relied upon legal, financial and other advice and information received during the course of its deliberations.
INFORMATION CONCERNING THE CORPORATION
Sherritt is a corporation continued under the CBCA. Sherritts principal and head office is located at Bay Adelaide Centre, East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4. Sherritt is a leader in the mining and refining of nickel and cobalt from lateritic ores with projects, operations and investments in Canada, Cuba and Madagascar. The Corporation is the largest independent energy producer in Cuba, with extensive oil and power operations on the island. Sherritt licenses its proprietary technologies and provides metallurgical services to mining and refining operations worldwide. The Corporations common shares are listed on the TSX, trading under the symbol S. Additional information about the Corporation is set out in the 2018 AIF, the 2019 Financial Statements and related 2019 MD&A, and the 2019 AGM Circular.
RISK FACTORS
Risk Factors Relating to the Corporation
Certain risk factors relating to the business and securities of the Corporation are contained in the 2019 MD&A and the 2018 AIF, which are incorporated by reference in this Circular and which have been publicly filed on SEDAR at www.sedar.com. Debtholders and Shareholders should review and carefully consider the risk factors set forth in the 2019 MD&A and 2018 AIF and consider all other information contained therein and herein and in the Corporations other public filings before determining how to vote on the Transaction or the Stated Capital Reduction Resolution, as applicable.
Risk Factors Relating to the Transaction
The completion of the Transaction may not occur or may not occur on schedule.
The Corporation will not complete the Transaction unless and until all conditions precedent to the Plan are satisfied or waived. See Conditions Precedent to the Implementation of the Plan. Even if the Transaction is completed, it may not be completed on the schedule described in this Circular. Accordingly, Debtholders participating in the Transaction may have to wait longer than expected to receive their entitlements under the Plan. In addition, if the Transaction is not completed on the schedule described in this Circular, the Corporation may incur additional expenses.
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Potential effect of the Transaction.
There can be no assurance as to the effect of the announcement of the Transaction on Sherritts relationships with its suppliers, customers, purchasers, contractors or lenders, nor can there be any assurance as to the effect on such relationships of any delay in the completion of the Transaction, or the effect of the Transaction being completed under the CBCA or pursuant to another statutory procedure. To the extent that any of these events result in the tightening of payment or credit terms, increases in the price of supplied goods, or the loss of a major supplier, customer, purchaser, contractor or lender, or of multiple other suppliers, customers, purchasers, contractors or lenders, this could have a material adverse effect on Sherritts business, financial condition, liquidity and results of operations. Similarly, current and prospective employees of the Corporation may experience uncertainty about their future roles with the Corporation. This may adversely affect the Corporations ability to attract or retain key employees in the period until the Transaction is completed or thereafter. The risk, and material adverse effect, of such disruptions could be exacerbated by any delay in the consummation of the Transaction.
In addition, counterparties to agreements with the Corporation and/or its subsidiaries may take the position that the CBCA Proceedings, the Transaction and/or related steps or actions taken by the Corporation in respect thereof may result in potential defaults under agreements to which the Corporation and/or its subsidiaries are a party. Such third parties may not respect the Interim Order under the CBCA Proceedings and may take steps to violate or contest the Interim Order, in particular related to the stay granted under the Interim Order in connection with any defaults under the Corporations or the Corporations subsidiaries agreements, including debt agreements. The stay granted under the Interim Order does not apply to the Revolving Bank Facility Lenders or administrative agent under the Revolving Bank Facility, who could take steps against the Corporation or its subsidiaries if the Consent Agreement is terminated.
The Transaction may not improve the financial condition of Sherritts business.
Management believes that the Transaction will improve the Corporations capital structure, enhance Sherritts liquidity and provide it with continued operating flexibility. However, such belief is based on certain assumptions, including, without limitation, that Sherritts sales, suppliers, customers, purchasers, joint venture partners and contractors will not be materially adversely affected while the Transaction is underway and that such sales and/or relationships will be stable or will improve following the completion of the Transaction, that general economic conditions and the markets for Sherritts products will remain stable or improve, that Sherritts collections of its Cuban Receivables will remain stable or improve, that overall market conditions (including commodity prices) will remain stable or improve, as well as Sherritts continued ability to manage costs. Should any of those assumptions prove false, the financial position of Sherritt may be materially adversely affected and Sherritt may not be able to pay its debts as they become due.
Parties may make claims against the Sherritt Entities despite the Releases and waivers provided for in the Plan.
The Plan includes certain Releases to become effective upon the implementation of the Transaction in favour of the Released Parties, as set out in the Plan. Furthermore, the Plan also provides that, from and after the Effective Time, all Persons shall be deemed to have consented and agreed to all of the provisions of the Plan in its entirety. Without limiting the foregoing, pursuant to the Plan, all Persons shall be deemed to have waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt, the Debt Documents, the Arrangement, the Arrangement Agreement, the Plan, the transactions contemplated under the Plan, the CBCA Proceedings and any other proceedings commenced with respect to or in connection with the Plan and any and all amendments or supplements thereto. The Plan provides that any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Applicants or the other Sherritt Entities, as applicable, and their respective successors and assigns from performing their obligations under the Plan or any contract or agreement entered into pursuant to, in connection with, or contemplated by, the Plan. Notwithstanding the foregoing, the Corporation may still be subject to legal actions with regards to such released claims and related matters. Such legal actions may be costly and could require the Corporation to defend such potential claims without
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recourse for legal costs incurred, even if the Corporation is successful. In addition, the Releases and waivers under the Plan do not apply to the Revolving Bank Facility Lenders or administrative agent under the Revolving Bank Facility.
The Corporation will incur significant transaction-related costs in connection with the Transaction, and the Corporation may have to pay various expenses even if the Transaction is not completed.
The Corporation expects to incur a number of non-recurring costs associated with the Transaction before, at and after its closing. The Corporation will also incur transaction fees and costs. Certain costs related to the Transaction, such as legal, accounting and certain financial advisor fees, must be paid by the Corporation even if the Transaction is not completed. If the Transaction is not consummated, the Corporation will bear some or all of these costs without recognizing any of the anticipated benefits of the Transaction.
The pending Arrangement may divert the attention of the Corporations Management.
The pendency of the Arrangement could cause the attention of the Corporations Management to be diverted from the day-to-day operations and customers or suppliers may seek to modify or terminate their business relationships with the Corporation. These disruptions could be exacerbated by a delay in the completion of the Arrangement and could have an adverse effect on the business, operating results or prospects of the Corporation regardless of whether the Arrangement is ultimately completed.
As a result of the U.S. embargo against Cuba, Persons Subject to U.S. Jurisdiction may not be permitted to own securities of the Corporation, including the New Second Lien Notes.
The United States has maintained a general embargo against Cuba since the early 1960s. The general embargo bars U.S. citizens, U.S. residents, individuals and entities located in the United States, entities organized under U.S. law, and entities owned or controlled by any of the foregoing (collectively, Persons Subject to U.S. Jurisdiction) from engaging in most transactions with Cuba, Cuban nationals, or entities deemed to be owned or controlled by Cuba.
The New Second Lien Notes offered hereby have not and will not be registered in the United States. Because Sherritt has material interests in Cuba, Persons Subject to U.S. Jurisdiction may not be permitted to own securities of the Corporation, including the New Second Lien Notes. In nonbinding guidance, the U.S. Department of the Treasury (U.S. Treasury) has stated that it does not prohibit secondary market investment in non-U.S. firms that have limited commercial dealings with Cuba, but it prohibits Persons Subject to U.S. Jurisdiction from providing capital into an enterprise in a manner that would support its Cuban transactions unless such transactions are authorized by the U.S. Treasury Office of Foreign Assets Control. U.S. Treasury might view the acquisition or holding of the New Second Lien Notes by Persons Subject to U.S. Jurisdiction as an injection of capital into the Corporation in a manner that supports its business with Cuba, which U.S. Treasury has not authorized. Furthermore, political developments or regulatory interpretations could result in legislative or regulatory changes that conclusively prohibit Persons Subject to U.S. Jurisdiction from holding or acquiring New Second Lien Notes.
The Noteholders receiving New Second Lien Notes pursuant to the Plan might have difficulty enforcing civil liabilities against the Corporation in the United States or elsewhere.
The enforcement by the Noteholders of civil liabilities under U.S. Securities Laws may be affected adversely by the fact that Sherritt is incorporated outside the United States, that some or all of its officers and directors and the experts named herein are residents of a foreign country, and that all or substantially all of the assets of the Corporation and said persons are located outside the United States. As a result, it may be difficult or impossible for Noteholders in the United States to effect service of process within the United States upon Sherritt, its officers and directors and the experts named herein, or to realize, against them, upon judgments of courts of the United States predicated upon civil liabilities under U.S. Securities Laws. In addition, Noteholders in the United States should not assume that the courts of Canada or any other non-U.S. jurisdiction: (a) would enforce judgments of United States courts obtained in actions against such persons predicated upon civil liabilities under U.S. Securities Laws, or (b) would enforce, in original actions, liabilities against such persons predicated upon civil liabilities under U.S.
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Securities Laws. In addition, awards of punitive damages in actions brought in Canada or elsewhere may be unenforceable in the United States.
The enforcement by the Noteholders of civil liabilities under Canadian Securities Laws may be affected adversely by the fact that certain officers and directors of the Corporation are residents of countries other than Canada, and that a substantial portion of the assets of said persons are located outside Canada. As a result, it may be difficult or impossible for Noteholders in Canada to effect service of process within Canada upon those officers and directors, or to realize, against them, upon judgments of courts of Canada predicated upon civil liabilities under Canadian Securities Laws.
Risk Factors Relating to Non-Implementation of the Transaction
Future liquidity and operations of the Corporation are dependent on the ability of the Corporation to repay its debt obligations and to generate sufficient operating cash flows to fund its on-going operations. If the Corporation does not complete the reduction of debt contemplated pursuant to the Transaction through the CBCA process described above, it may be necessary to pursue other options or alternatives that could have a more negative effect on the Corporation. Certain risk factors relating to the non-implementation of the Transaction include that (a) the Corporation raises additional secured priority debt in priority to the Existing Notes (which are unsecured) as the Corporation currently has the ability under the Existing Notes Indenture to raise approximately $230 million outside of the Transaction, (b) the Corporation may not be in a position to repay all of the Existing Notes and the CFA Loans in full on their stated maturities, (c) the Corporation may have limited ability to raise additional capital on market terms with its current capital structure, and (d) the Corporations existing capital structure with existing maturities may limit the options and alternatives for the Corporation to maximize value to all stakeholders or to pursue various operational improvements or other strategic initiatives.
Counterparties to agreements with the Corporation and/or its subsidiaries may take the position that the CBCA Proceedings, the Transaction and/or related steps or actions taken by the Corporation in respect thereof may result in potential defaults under agreements to which the Corporation and/or its subsidiaries are a party. The Interim Order granted in the CBCA Proceedings provides a stay of proceedings until the earlier of the closing of the Transaction or the termination of the CBCA Proceedings, staying, among other things, any action with respect to any default or event of default under the Existing Notes (including, without limitation, any non-payment of interest or other amounts payable), any default or event of default under the CFA Loans, or any default under any other agreement with the Corporation or any of its direct or indirect wholly-owned subsidiaries as a result of the CBCA Proceedings, the Transaction or any cross-default due to a default under the Existing Notes or CFA Loans, provided that the stay of proceedings under the Interim Order does not apply to the Revolving Bank Facility Lenders or administrative agent under the Revolving Bank Facility. Third parties may take steps in connection with any defaults under the Corporations or the Corporations subsidiaries agreements, including debt agreements, in the event the CBCA Proceedings are terminated and the Transaction has not been implemented.
In the event that the Transaction is not implemented, the Corporations total debt may not be reduced by approximately $414 million and the associated reduction in debt service costs may not be achieved. The Corporation will need to evaluate all of its options and alternatives related to any future court proceedings or other alternatives to address key liquidity and leverage issues which exist today. In the event the Transaction is not successful, the value available to stakeholders may be significantly reduced.
Risks Relating to the New Second Lien Notes
The Corporations substantial indebtedness could adversely affect its financial condition and prevent the Corporation from fulfilling its obligations under the New Second Lien Notes.
After the completion of the Transaction and the issuance of the New Second Lien Notes and the debt reduction resulting therefrom, Sherritt will still have a significant amount of indebtedness. After giving effect to the Transaction, assuming an Effective Date of April 30, 2020, the Corporations total indebtedness will be approximately $327 million (excluding outstanding letters of credit and not taking into account any changes to the outstanding balance under the Revolving Bank Facility since December 31, 2019).
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Subject to the limits contained in the New Notes Indenture and the other debt instruments, Sherritt may be able to incur substantial additional debt from time to time to finance working capital, capital expenditures, investments or acquisitions, or for other purposes. If the Corporation does so, the risks related to its level of debt could increase. Specifically, the Corporations level of debt could have important consequences to the holders of the New Second Lien Notes, including the following:
| making it more difficult for the Corporation to satisfy its obligations with respect to the New Second Lien Notes and its other debt; |
| limiting the Corporations ability to obtain additional financing to fund future working capital, capital expenditures, acquisitions or other general corporate requirements; |
| requiring a substantial portion of the Corporations cash flows to be dedicated to debt service payments and mandatory redemptions from cash flow instead of other purposes, thereby reducing the amount of cash flows available for working capital, capital expenditures, acquisitions and other general corporate purposes; |
| increasing the Corporations vulnerability to general adverse economic and industry conditions; |
| limiting the Corporations flexibility in planning for and reacting to changes in the industry in which it competes; |
| placing the Corporation at a disadvantage compared to other, less leveraged competitors; and |
| increasing the Corporations cost of borrowing. |
In addition, the New Notes Indenture will contain restrictive covenants that will limit Sherritts ability to engage in activities that may be in its long term best interests. Sherritts failure to comply with those covenants could result in an event of default which, if not cured or waived, could result in the acceleration of all its debts.
Despite the Corporations current level of indebtedness, it may be able to incur substantially more debt. This could further exacerbate the risks to the Corporations financial condition described above.
The Corporation may be able to incur significant additional indebtedness in the future. Although the New Notes Indenture and the credit agreement that govern the Revolving Bank Facility each contain restrictions on the incurrence of additional indebtedness and significantly limit the Corporations ability to incur Secured Indebtedness (as defined in the Description of Notes), these restrictions are subject to a number of qualifications and exceptions and the additional indebtedness incurred in compliance with these exceptions could be substantial. If the Corporation incurs any such additional indebtedness, it may have the effect of reducing the amount of proceeds distributed to you in connection with any insolvency, litigation, reorganization, dissolution or other winding-up of or such proceeding involving the Corporation. If new debt is added to Sherritts current debt levels, the related risks that Sherritt and its subsidiaries now face could increase.
The terms of the New Notes Indenture and the terms of the Revolving Bank Facility may restrict the Corporations current and future operations, particularly the Corporations ability to respond to changes or to take certain actions.
The New Notes Indenture and the Revolving Bank Facility Agreement contain a number of restrictive covenants that impose significant operating and financial restrictions on the Corporation and may limit the Corporations ability to engage in acts that may be in its long-term best interests, including, among other things, restrictions on its ability to:
| incur additional indebtedness; |
| pay dividends or make other distributions or repurchase or redeem certain indebtedness or capital stock; |
| make loans and investments; |
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| sell assets; |
| incur certain liens; |
| enter into transactions with affiliates; |
| alter the businesses it conducts; |
| enter into agreements restricting its subsidiaries ability to pay dividends; and |
| consolidate, merge or sell all or substantially all of its assets. |
While the Corporation is permitted to incur additional indebtedness as described above, there is no guarantee that it will be able to obtain such indebtedness.
A breach of the covenants under the New Notes Indenture or the Revolving Bank Facility Agreement could result in an event of default under the applicable indebtedness. Such default may allow the creditors to accelerate the related debt and may result in the acceleration of any other debt to which a cross-acceleration or cross-default provision applies. If the Corporation was unable to repay the amounts due and payable under the Revolving Bank Facility, New Second Lien Notes or any other Secured Indebtedness, the noteholders and/or lenders could proceed against the Collateral granted securing such indebtedness. In the event that such noteholders and/or lenders accelerate the repayment of the outstanding debt, the Corporation cannot assure you that it and its subsidiaries would have sufficient assets to repay such indebtedness. As a result of these restrictions, the Corporation may be:
| limited in how it conducts its business; |
| unable to raise additional debt or equity financing to operate during general economic or business downturns; or |
| unable to compete effectively or to take advantage of new business opportunities. |
These restrictions may affect Sherritts ability to grow in accordance with its plans.
The Corporation may not be able to generate sufficient cash to service all of its indebtedness, including the New Second Lien Notes, and may be forced to take other actions to satisfy its obligations under its indebtedness, which may not be successful.
The Corporations ability to make scheduled payments on or to refinance its debt obligations, including the New Second Lien Notes, depends on the Corporations financial condition and operating performance, which are subject to prevailing economic and competitive conditions and to certain financial, business, legislative, regulatory and other factors beyond its control. The Corporation may be unable to maintain a level of cash flows from operating activities sufficient to permit it to pay the principal, premium, if any, and interest on its indebtedness, including the New Second Lien Notes.
If Sherritts cash flows and capital resources are insufficient to fund its debt service obligations, it could face substantial liquidity problems and could be forced to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity capital or restructure or refinance its indebtedness, including the New Second Lien Notes. Sherritt may not be able to effect any such alternative measures, if necessary, on commercially reasonable terms or at all and, even if successful, such alternative actions may not allow it to meet its scheduled debt service obligations. The New Notes Indenture and the Revolving Bank Facility Agreement restrict the Corporations ability to dispose of assets and use the proceeds from any such dispositions and may also restrict its ability to raise debt or equity capital to be used to repay other indebtedness when it becomes due. The Corporation may not be able to consummate those dispositions or to obtain proceeds in an amount sufficient to meet any debt service obligations then due.
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Sherritts inability to generate sufficient cash flows to satisfy its debt obligations (including mandatory redemptions of the New Second Lien Notes), or to refinance its indebtedness on commercially reasonable terms or at all, would materially and adversely affect its business, financial position and results of operations and its ability to satisfy its obligations under the New Second Lien Notes.
If the Corporation cannot make scheduled payments on its debt, it will be in default and, as a result, the holders of the New Second Lien Notes or the lenders under the Revolving Bank Facility could declare all outstanding principal and interest to be due and payable and the lenders under the Revolving Bank Facility could terminate their commitments to loan money and the Corporations secured creditors, including the lenders under the Revolving Bank Facility, could foreclose on or exercise other remedies against the assets securing such Obligations (as defined in the Description of Notes) on a basis senior to the New Second Lien Notes and the Corporation could be forced into bankruptcy, liquidation or other insolvency proceedings which, in each case, may result in your losing all or a portion of your investment in the New Second Lien Notes.
The rights of holders of the New Second Lien Notes with respect to the Collateral, in which the holders of the New Second Lien Notes have a second-priority lien, will be materially limited by the Intercreditor Agreement.
The rights of the holders of the New Second Lien Notes with respect to the Collateral, which secures the New Second Lien Notes on a second-priority basis, will be limited pursuant to the terms of the Intercreditor Agreement. The Intercreditor Agreement will provide that, while any amount under the Revolving Bank Facility remains outstanding, the lenders will control, subject to certain limited exceptions in the Intercreditor Agreement, the exercise of all remedies and other enforcement actions related to the Collateral. In such circumstances, subject to certain limited exceptions in the Intercreditor Agreement to preserve and protect the Second Ranking Liens and the right to make claims associated therewith, none of the Collateral Agent, the New Indenture Trustee or the holders of the New Second Lien Notes will be able to take actions to exercise remedies to enforce the security interests related to the Collateral, force a sale of the Collateral, or otherwise exercise remedies normally available to secured creditors without the concurrence of the lenders.
The Collateral Agent will not be entitled to take any enforcement action (including commencing insolvency proceedings) or otherwise exercise control or rights and remedies (subject to certain customary unrestricted actions including demand, acceleration and filing of proofs of claim) with respect to the Corporation or any New Notes Guarantor, or the Collateral, until the passage of a standstill period of 180 days from the first date on which the agent under the Revolving Bank Facility, has received from the Collateral Agent written notice of its intention to take any such enforcement action or exercise such rights and remedies (the Standstill Period), which notice may only be delivered following the occurrence of and during the continuance of an event of default under the Notes, and thereafter following the expiry of the Standstill Period for so long as (i) the agent under the Revolving Bank Facility, is diligently pursuing an enforcement action or otherwise exercising control or rights and remedies with respect to a material portion of the collateral or is stayed or otherwise precluded from taking such enforcement action or exercising such control or rights and remedies, or (ii) the Corporation or any New Notes Guarantor is then subject to insolvency proceedings. In addition, because the lenders under the Revolving Bank Facility control the disposition of the Collateral, there is no guarantee that such lenders will exercise their rights in a manner that ensures the repayment of the New Second Lien Notes.
If the Revolving Bank Facility is no longer outstanding, then upon the occurrence of and during the continuance of an Event of Default (as defined in the Description of Notes), the Collateral Agent will have the right to exercise remedies with respect to the Collateral.
The guarantees by the New Notes Guarantors and the liens granted to secure the New Second Lien Notes and the guarantees thereof may be released if the agent under the Revolving Bank Facility releases the guarantees or liens granted in its favour.
Because the New Second Lien Notes are intended to be guaranteed and secured on the same basis as the Revolving Bank Facility (other than with respect to certain joint venture related guarantees and security provided solely in favour of the lenders under the Revolving Bank Facility, as set out above), the indenture governing the New Second Lien Notes provides for the release of guarantors and the release of liens granted by Sherritt and the New Notes Guarantors to secure the New Second Lien Notes and the guarantees thereof upon the release thereof by the agent
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under the Revolving Bank Facility, and there is no guarantee that such lenders will exercise their discretion with respect to such releases in a manner that ensures the repayment of the New Second Lien Notes.
There may not be sufficient Collateral to pay all or any of the New Second Lien Notes.
No appraisal of the value of the Collateral has been made and the value of the Collateral in the event of liquidation will depend on market and economic conditions, the availability of buyers and other factors. Consequently, liquidating the Collateral securing the New Second Lien Notes may not produce proceeds in an amount sufficient to pay any amounts due thereon.
The fair market value of the Collateral securing the New Second Lien Notes is subject to fluctuations based on factors that include, among others, the condition of Sherritts industry, Sherritts ability to collect its receivables or to sell the Collateral in an orderly sale, general economic conditions, the availability of buyers, local law restrictions on enforcement and other factors. The amount to be received upon a sale of the Collateral would be dependent on numerous factors, including, but not limited to, the actual fair market value of the Collateral at such time and the timing and the manner of the sale. By its nature, portions of the Collateral may be illiquid and may have no readily ascertainable market value. Accordingly, there can be no assurance that the Collateral can be sold in a short period of time or in an orderly manner. In the event of a foreclosure, liquidation, reorganization, bankruptcy or other insolvency proceeding, Sherritt cannot assure you that the proceeds from any sale or liquidation of the Collateral will be sufficient to pay its obligations under the New Second Lien Notes. In addition, in the event of any such proceeding, the ability of the holders of the New Second Lien Notes to realize upon any of the Collateral may be subject to bankruptcy and insolvency Law limitations. See Appendix HDescription of Notes Security for the Notes Bankruptcy and Insolvency Limitations.
In the event of a bankruptcy or any insolvency or receivership proceeding involving the Corporation or any of the New Notes Guarantors, holders of the New Second Lien Notes may be deemed to have an unsecured claim to the extent that the Corporations obligations in respect of the New Second Lien Notes exceed the fair market value of the Collateral securing the New Second Lien Notes.
In any Canadian bankruptcy or other insolvency proceeding (including a receivership) with respect to the Corporation or any of the New Notes Guarantors, it is possible that the bankruptcy trustee, the debtor-in-possession, the receiver or competing creditors will assert that the fair market value of the Collateral with respect to the New Second Lien Notes is less than the then-current principal amount of the New Second Lien Notes. If the New Second Lien Notes are under-collateralized, the claims in the bankruptcy or other insolvency or proceeding with respect to the New Second Lien Notes could be comprised of both a secured claim (to the extent of the value of the collateral securing such claim) and an unsecured claim, and the unsecured claim would not be entitled to the benefits of security in the Collateral. In such event, the secured claims of the holders of the New Second Lien Notes would be limited to the value of the Collateral. Other rights of secured creditors under applicable bankruptcy or insolvency Laws in respect of the under-collateralized portion of the New Second Lien Notes may also be affected by the under-collateralization.
Under Canadian bankruptcy and insolvency statutes, a court may grant an order authorizing interim financing which ranks in priority to the claim of any other secured creditor of the debtor. In such a circumstance, the court must consider a number of factors including whether any creditor may be materially prejudiced. Also, in a Canadian bankruptcy or insolvency proceeding, classification of the claims under the New Second Lien Notes will be governed by factors set out in the governing statute and jurisprudential Law and any claims process conducted, whether pursuant to statute or court order.
Certain assets will be excluded from the Collateral, including assets of Sherritts immaterial subsidiaries and non-wholly owned subsidiaries that do not guarantee the New Second Lien Notes.
Certain assets are excluded from the Collateral securing the New Second Lien Notes including real property, certain non-material assets, as well as other typical exclusions, such as capital stock of non-wholly owned subsidiaries if the pledge of such capital stock would violate a contractual obligation, letters of credit for identified purposes or a contract or license if the grant of a lien would violate a contract, license or agreement.
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Your rights in the Collateral may be adversely affected by the failure to perfect security interests in certain collateral acquired in the future.
Applicable law requires that certain property and rights acquired after the grant of a general security interest can only be perfected at the time such property and rights are acquired and identified. There can be no assurance that the New Indenture Trustee or the Collateral Agent will monitor, or that the Corporation will inform the New Indenture Trustee or the Collateral Agent of, the future acquisition of property and rights that constitute Collateral, and that the necessary action will be taken to properly perfect the security interest in such after-acquired Collateral. The Collateral Agent under the New Second Lien Notes has no obligation to monitor the acquisition of additional property or rights that constitute Collateral or the perfection of any security interest in favour of the notes against third parties.
Rights of holders of the New Second Lien Notes in the Collateral may be adversely affected by the failure to create or perfect security interests in certain collateral on a timely basis, and a failure to create or perfect such security interests on a timely basis or at all may result in a default under the New Notes Indenture and other agreements governing Sherritts indebtedness.
If Sherritt, or any New Notes Guarantor, were to become subject to Canadian bankruptcy or other insolvency proceedings, you may not be permitted to perfect or make registrations in respect of the liens once such proceedings have been commenced. Also, any liens recorded or perfected after the issue date of the New Second Lien Notes may face a greater risk of being declared void or set aside than if they had been recorded or perfected on the issue date. Under Canadian bankruptcy or other insolvency proceedings, a lien granted on the eve of insolvency to secure previously existing debt is more likely to be set aside or voided by the court than if delivered and promptly recorded on the issue date. Accordingly, if Sherritt or a New Notes Guarantor were to file for bankruptcy protection or become subject to other insolvency proceedings after the issue date of the New Second Lien Notes and the liens had been perfected on the eve of the commencement of such proceedings, the liens securing the New Second Lien Notes may be subject to challenge as a result of having been perfected after the issue date. To the extent that such a challenge was successful, you may lose the benefit of the security that the Collateral is intended to provide.
In Canada, there are remedies available under federal and provincial legislation to review certain transactions such as the transactions discussed herein, as, among other things, preferences or transfers at undervalue. If established, such transactions may be declared void or set aside, which may affect the perfection and validity of the liens and other interests described above. In the case of transfers at undervalue, the review period is usually twelve months from the commencement of the relevant proceeding for arms length transfers and five years for non-arms length transfers. In the case of preferences, the review period is usually three months from the commencement of the relevant proceeding for arms length transfers and twelve months for non-arms length transfers. The review period varies for other remedies. Such a proceeding may be commenced by the trustee in bankruptcy, a receiver, a monitor under the Companies Creditors Arrangement Act (the CCAA) or a creditor of the debtor or other interested parties.
Additionally, a failure, for any reason that is not permitted or contemplated under the Collateral Documents, to perfect the security interest in the properties included in the collateral package may result in a default under the New Notes Indenture and other agreements governing Sherritts indebtedness.
Any future pledge of Collateral in favour of the holders of the New Second Lien Notes might be voidable in bankruptcy or other insolvency proceedings (including receivership).
The New Notes Indenture provides that the Corporations future wholly-owned subsidiaries will guarantee the New Second Lien Notes and secure their guarantees with liens on any assets they own that would constitute collateral, and that the Corporation will grant liens on certain property that it and the New Notes Guarantors acquire after the New Second Lien Notes are issued.
In Canada, there are a number of remedies under federal and provincial legislation available to a trustee in bankruptcy, creditors of the debtor, a receiver, a monitor appointed in a CCAA proceeding and other interested parties under the CCAA to seek to set aside or void a future pledge of collateral for existing indebtedness.
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There are circumstances other than repayment or discharge of the New Second Lien Notes under which the Collateral securing the New Second Lien Notes and guarantees will be released automatically, without your consent or the consent of the Collateral Agent.
Under various circumstances, Collateral securing the New Second Lien Notes will be released automatically, including:
| as to all or any portion of Collateral which has been taken by eminent domain, condemnation or other similar circumstances; |
| upon satisfaction and discharge of the New Notes Indenture; |
| upon a legal defeasance or covenant defeasance under the New Notes Indenture; |
| a sale, transfer or other disposal of such Collateral by Sherritt or any New Notes Guarantor (other than to Sherritt or another New Notes Guarantor) in a transaction not prohibited under the New Notes Indenture; |
| with respect to Collateral held by a New Notes Guarantor, upon the release of such New Notes Guarantor from its guarantee concurrently with the release of such guarantee (including in connection with the designation of a subsidiary guarantor as an Unrestricted Subsidiary); |
| in accordance with the applicable provisions of the Collateral Documents and the Intercreditor Agreement, including upon any sale or enforcement by the agent under the Revolving Bank Facility. |
In addition, the guarantee of a subsidiary guarantor will be automatically released in connection with a sale of such subsidiary guarantor in a transaction permitted under the applicable New Notes Indenture.
The New Notes Indenture will also permit Sherritt to designate one or more of its Restricted Subsidiaries that is a New Notes Guarantor of the New Second Lien Notes as an Unrestricted Subsidiary. If Sherritt designates a subsidiary guarantor as an Unrestricted Subsidiary for purposes of the New Notes Indenture, all of the liens on any Collateral owned by such subsidiary or any of its subsidiaries and any guarantees of the New Second Lien Notes by such subsidiary or any of its subsidiaries will be released under the New Notes Indenture, but not necessarily under the Revolving Bank Facility. Designation of an Unrestricted Subsidiary will reduce the aggregate value of the Collateral securing the New Second Lien Notes to the extent that liens on the assets of the Unrestricted Subsidiary and its subsidiaries are released. In addition, the creditors of the Unrestricted Subsidiary and its subsidiaries will have a senior claim on the assets of such Unrestricted Subsidiary and its subsidiaries.
The Corporation will in most cases have control over the Collateral.
The Collateral Documents generally allow the Corporation and the New Notes Guarantors to remain in possession of, to retain exclusive control over, to freely operate and to collect, invest and dispose of any income from, the Collateral. These rights may adversely affect the value of the Collateral at any time.
The New Second Lien Notes will be structurally subordinated to all obligations of Sherritts current and future subsidiaries that do not become guarantors of the New Second Lien Notes.
The New Second Lien Notes will be guaranteed by each of Sherritts existing and subsequently acquired or organized wholly-owned subsidiaries other than Unrestricted Subsidiaries. Except for such guarantees of the New Second Lien Notes, Sherritts subsidiaries will have no obligation, contingent or otherwise, to pay amounts due under the New Second Lien Notes or to make any funds available to pay those amounts, whether by dividend, distribution, loan or other payment. Further, even if the subsidiary is a New Notes Guarantor, it may not be able to, or may not be permitted to, make distributions to enable Sherritt to make payments in respect of its indebtedness, including the New Second Lien Notes. Each subsidiary is a distinct legal entity and, under certain circumstances, legal and contractual restrictions may limit the Corporations ability to obtain cash from them, including restrictions under the local laws of those jurisdictions in which such subsidiaries are formed or conduct business. Although the New Notes Indenture and the agreements governing certain of the Corporations other existing indebtedness will
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limit the ability of certain subsidiaries to incur consensual restrictions on their ability to pay dividends or make other intercompany payments to the Corporation, these limitations are subject to certain qualifications and exceptions. In the event that the Corporation does not receive distributions from its subsidiaries, it may be unable to make required principal and interest payments on its indebtedness, including the New Second Lien Notes.
The New Second Lien Notes will be structurally subordinated to all indebtedness and other obligations of any non-guarantor subsidiary such that, in the event of insolvency, liquidation, reorganization, dissolution or other winding up of any subsidiary that is not a guarantor, all of such subsidiarys creditors (including trade creditors and preferred stockholders, if any) would be entitled to payment in full out of such subsidiarys assets before the Corporation would be entitled to any payment.
In addition, the New Notes Indenture, subject to some limitations, permits these subsidiaries to incur additional indebtedness and will not contain any limitation on the amount of other liabilities, such as trade payables, that may be incurred by these subsidiaries.
In addition, the Corporations subsidiaries that provide, or will provide, guarantees of the New Second Lien Notes will be automatically released from such guarantees upon the occurrence of certain events, including the following:
| the designation of such subsidiary guarantor as an Unrestricted Subsidiary under the New Notes Indenture; |
| the release or discharge of any guarantee or indebtedness that resulted in the creation of the guarantee of the New Second Lien Notes by such subsidiary guarantor; or |
| the sale or other disposition, including the sale of substantially all the assets, of such subsidiary guarantor in accordance with the terms of the New Notes Indenture. |
If any such subsidiary guarantee is released, a holder of the New Second Lien Notes will not have a claim as a creditor against any such subsidiary and the indebtedness and other liabilities, including trade payables and preferred stock, if any, whether secured or unsecured, of such subsidiary will be effectively senior to the claim of any holders of the notes.
The Corporation may not be able to repurchase the New Second Lien Notes upon a change of control.
Upon the occurrence of specific kinds of change of control events, the Corporation will be required to offer to repurchase all outstanding New Second Lien Notes at 101% of their principal amount, plus accrued and unpaid interest to the purchase date. The source of funds for any purchase of the New Second Lien Notes and repayment of the Corporations credit facilities will be the Corporations available cash or cash generated from its subsidiaries operations or other sources, including borrowings, sales of assets or sales of equity. The Corporation may not be able to repurchase the New Second Lien Notes upon a change of control because it may not have sufficient financial resources to purchase all of the New Second Lien Notes that are tendered upon a change of control and repay its other indebtedness that will become due. The Corporation may require additional financing from third parties to fund any such purchases, and cannot assure you that it would be able to obtain financing on satisfactory terms or at all. Further, the Corporations ability to repurchase the notes may be limited by Law and the terms of the Revolving Bank Facility. In order to avoid the obligations to repurchase the New Second Lien Notes and events of default and potential breaches of the Revolving Bank Facility, the Corporation may have to avoid certain change of control transactions that would otherwise be beneficial to it.
In addition, certain important corporate events, such as leveraged recapitalizations, may not, under the New Second Lien Notes, constitute a change of control that would require the Corporation to repurchase the New Second Lien Notes, notwithstanding the fact that such corporate events could increase the level of the Corporations indebtedness or otherwise adversely affect its capital structure, credit ratings or the value of the New Second Lien Notes.
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Holders of the New Second Lien Notes may not be able to determine when a change of control giving rise to their right to have the New Second Lien Notes repurchased has occurred following a sale of substantially all of Sherritts assets.
The definition of change of control in the New Notes Indenture includes a phrase relating to the sale of all or substantially all of Sherritts assets. There is no precise established definition of the phrase substantially all under applicable Law. Accordingly, the ability of a holder of New Second Lien Notes to require Sherritt to repurchase its notes as a result of a sale of less than all of Sherritts assets to another person may be uncertain.
Canadian bankruptcy and insolvency Laws may impair the enforcement of remedies under the New Second Lien Notes.
The rights of the Collateral Agent to enforce remedies are likely to be significantly impaired by applicable Canadian federal bankruptcy, insolvency and other restructuring legislation in the event the Corporation becomes bankrupt, insolvent or receivership or other restructuring proceedings are commenced with respect to the Corporation. For example, both the Bankruptcy and Insolvency Act (Canada) (the BIA) and the CCAA contain provisions enabling an insolvent person to obtain a stay of proceedings against its creditors and others. Under Canadian insolvency Laws, a debtor is able to prepare and file a proposal or plan of compromise or arrangement to be voted on by the various classes of its affected creditors. A proposal, compromise or arrangement if accepted by the requisite majorities of each affected class of creditors, and if sanctioned by the relevant Canadian court, would be binding on all creditors within each affected class regardless of whether they voted to accept the proposal. The proposal or plan can result in any claims against the debtor company being compromised or extinguished. Moreover, these Laws permit the insolvent debtor to retain possession and administration of its property, subject to court oversight, even though it may be in default under the applicable debt instrument during the period the stay against proceedings remains in place.
The powers of the court under the BIA and particularly under the CCAA have been exercised broadly to protect an entity attempting to restructure its affairs from actions taken by creditors and other parties. Accordingly, the Corporation cannot predict whether payments under the New Second Lien Notes would be made during any Canadian proceedings in bankruptcy, insolvency (including receivership) or other restructuring, whether or when the Collateral Agent could exercise its rights under the New Notes Indenture or whether and to what extent holders of the New Second Lien Notes would be compensated for any delays in payment, if any, of principal, interest and costs, including the fees and disbursement of the trustee.
The Corporation is formed under the Laws of Canada and its provinces and the Corporations principal place of business and all of its assets are currently located in Canada. Therefore, Canada would be the more likely jurisdiction than the U.S. for the commencement of any bankruptcy or insolvency proceedings. Chapter 15 of the U.S. Bankruptcy Code and Part IV of the CCAA provide for the recognition of foreign insolvency proceedings. Courts in either jurisdiction have the authority to recognize a foreign insolvency proceeding as either a foreign main proceeding or a foreign non-main proceeding, on the proof of certain threshold requirements. In order for a Canadian court to recognize a U.S. insolvency proceeding as a foreign main proceeding, it would have to be satisfied, among other things, that the U.S. is the jurisdiction of the debtors centre of main interests. In Canada, in the absence of proof to the contrary, a debtor companys registered office is deemed to be the centre of its main interest. Because the Corporations registered office is located in Canada, it is uncertain whether the Corporation would be an eligible debtor under the U.S. Bankruptcy Code and, if the Corporation were to seek protection under U.S. bankruptcy Laws, it is uncertain whether such proceedings would be recognized by Canadian courts, particularly as a foreign main proceeding. Likewise, if the Corporation were to seek protection in the Canadian courts under Canadian bankruptcy and insolvency Laws, it is uncertain whether an appropriate foreign representative would seek to commence an ancillary proceeding under Chapter 15 of the U.S. Bankruptcy Code and, if so, whether such foreign proceedings would be recognized by U.S. Bankruptcy courts as a foreign main or a foreign non-main proceeding.
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In the event of the Corporations bankruptcy or the commencement of other insolvency proceedings (including receivership) available to the Corporation, the ability of the holders of the New Second Lien Notes to realize upon the Collateral will be subject to certain limitations.
The ability of holders of the New Second Lien Notes to realize upon the Collateral will be subject to certain limitations in the event of Canadian bankruptcy or insolvency proceedings. Under Canadian bankruptcy and insolvency Laws upon the commencement of a bankruptcy or insolvency proceeding, a stay of proceedings is imposed (automatically or, in CCAA and receivership proceedings, by court order) which, among other things, stays:
| the commencement or continuation of any action or proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy or other insolvency proceedings to recover a claim against the debtor that arose before the commencement of such proceedings; |
| any act to obtain possession of, or control over, property of the debtors estate or the debtor; |
| any act to create or enforce any lien against property of the debtors estate or the debtor (provided that certain rights to perfect or re-perfect existing security interests is unaffected by the stay of the proceedings); and |
| any act to collect or recover a claim against the debtor that arose before the commencement of the bankruptcy or other insolvency proceedings. |
In Canada, under the CCAA and the BIA, secured creditors may be prevented from enforcing on their security from a debtor company in a proceeding without approval from the court supervising the proceeding, and may be prevented from disposing of security repossessed from such debtor without court approval. In restructuring proceedings under the CCAA or the BIA, the debtor may continue to retain collateral, including cash collateral, even though the debtor is in default under applicable debt instruments.
Under Canadian bankruptcy and insolvency statutes, a court may grant an order authorizing interim financing which ranks in priority to the claim of any other secured creditor of the debtor. In such a circumstance, the court must consider a number of factors including whether any creditor may be materially prejudiced. The court may provide protections in the face of material prejudice. However, this power is discretionary, and Sherritt cannot predict when, or whether, the agent under the Revolving Bank Facility could realize upon the Collateral, or whether, or to what extent, holders of the New Second Lien Notes would be compensated for any delay in payment or loss of value of the Collateral.
The Corporation may be unable to repay or repurchase the New Second Lien Notes at maturity.
At the maturity date for the New Second Lien Notes, the entire remaining outstanding principal amount of the New Second Lien Notes, together with accrued and unpaid interest, will become due and payable. The Corporation may not have the funds to fulfill these obligations or the ability to refinance these obligations. If the relevant maturity date occurs at a time when other arrangements prohibit the Corporation from repaying the New Second Lien Notes, it could try to obtain waivers of such prohibitions from the lenders and holders under those arrangements, or it could attempt to refinance the borrowings that contain the restrictions. In these circumstances, if the Corporation cannot obtain such waivers or refinance these borrowings, it would be unable to repay the New Second Lien Notes.
Tax Risks
The tax laws of any applicable country, province, state or territory (including Canadian and United States federal income tax laws), and the administrative application and interpretation of such laws, are subject to change. Any change in the tax laws that are applicable to Sherritt or the interests held by a Voting Party in Sherritt, or the administrative application or interpretation of such laws, could have an adverse impact on such Voting Partys interests in Sherritt.
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While Sherritt is confident in its tax filing positions in connection with the Transaction, it has not sought or obtained from any tax authority advance confirmation of such positions (including an advance income tax ruling from the Canada Revenue Agency or a private letter ruling from the IRS), therefore it is possible that such positions may be successfully challenged by tax authorities, which could result in materially different tax consequences than anticipated. The summary under Certain Canadian Federal Income Tax Considerations set out below does not consider all possible tax consequences relating to the Transaction. In addition, it is possible that the Canadian and/or United States tax authorities could take positions or adopt interpretations regarding the applicable tax consequences to Debtholders and Shareholders that differ from those set out in this Circular. Debtholders and Shareholders should consult their own tax advisors.
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal Canadian federal income tax considerations arising in connection with the Transaction generally applicable to Noteholders and Shareholders (collectively, Holders) who, at all relevant times, for purposes of the Tax Act: (i) deal at arms length with and are not affiliated with the Corporation; (ii) beneficially own their Existing Notes and Common Shares (as applicable) including all entitlements to payments thereunder, and will beneficially own their Common Shares and New Second Lien Notes (as applicable); (iii) hold their Existing Notes and Common Shares (as applicable) and will hold their Common Shares and New Second Lien Notes (as applicable) as capital property; and (iv) have not entered into or will not enter into, in respect of the Existing Notes, Common Shares or New Second Lien Notes (as applicable) a synthetic disposition arrangement or a derivative forward agreement for purposes of the Tax Act. The Existing Notes, Common Shares or New Second Lien Notes will generally be considered to be capital property of a Holder unless either the Holder holds (or will hold) such Existing Notes, Common Shares or New Second Lien Notes in the course of carrying on a business or the Holder has acquired such Existing Notes, Common Shares or New Second Lien Notes in a transaction or transactions considered to be an adventure or concern in the nature of trade.
This summary is based on the current provisions of the Tax Act and counsels understanding of the current published administrative practices and policies of the Canada Revenue Agency. The summary also takes into account all specific proposals to amend the Tax Act that have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the Tax Proposals), and assumes that all such Tax Proposals will be enacted as proposed. This summary does not otherwise take into account or anticipate any changes in Law, whether by way of legislative, judicial or administrative action or interpretation, nor does it address any provincial, territorial or foreign tax considerations. No assurance can be given that the Tax Proposals will be enacted in the form proposed or at all.
This summary is not intended to be, nor should it be construed as, legal or tax advice to any particular Holder. Holders are urged to consult a tax advisor concerning the tax consequences to them of the Transaction.
For purposes of the Tax Act, all amounts relevant in computing the income, taxable income and taxes payable by a Holder, including the cost and adjusted cost base of Existing Notes, Common Shares and New Second Lien Notes must be determined in Canadian dollars based on the exchange rate quoted by the Bank of Canada on the relevant date (or, if there is no such rate quoted for the relevant date, the closest preceding date for which such a rate is quoted) or such other rate of exchange that is acceptable to the Minister of National Revenue.
Stated Capital Reduction
Generally, there will be no immediate Canadian income tax consequences under the Tax Act to any Shareholder as a consequence of the Stated Capital Reduction, nor will the Stated Capital Reduction affect a Shareholders adjusted cost base of the Common Shares for purposes of the Tax Act. However, the Stated Capital Reduction will result in the reduction of paid-up capital (as defined in the Tax Act) (PUC) of the Common Shares by an amount equal to the Stated Capital Reduction. PUC is generally the aggregate of all amounts received by a corporation upon the issuance of its shares (by class), adjusted in certain circumstances in accordance with the Tax Act.
The Stated Capital Reduction may have an effect in the future, in certain circumstances, including if the Corporation makes a distribution to Shareholders or is wound-up, or if the Corporation repurchases any Common Shares.
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Generally, upon such transactions, the Shareholder will be deemed to have received a dividend to the extent that the amount paid or distributed by the Corporation exceeds the PUC of the Common Shares.
Holders Resident in Canada
The following discussion applies to a Holder who, for purposes of the Tax Act, and at all relevant times, is or is deemed to be a resident of Canada (a Canadian Holder). Certain Canadian Holders whose Existing Notes or New Second Lien Notes might not otherwise qualify as capital property may, in certain circumstances, treat such Existing Notes or New Second Lien Notes (and all other Canadian securities as defined in the Tax Act) as capital property by making an irrevocable election pursuant to subsection 39(4) of the Tax Act. Such Canadian Holders should consult their own tax advisors for advice with respect to whether an election under subsection 39(4) of the Tax Act is available or advisable in their particular circumstances.
This portion of the summary is not applicable to a Holder: (i) that is a financial institution (as defined in the Tax Act) for purposes of the mark-to-market rules; (ii) that is a specified financial institution (as defined in the Tax Act); (iii) an interest in which is a tax shelter investment for purposes of the Tax Act; or (iv) that has made a functional currency reporting election under the Tax Act. Such Holders should consult a tax advisor having regard to their particular circumstances.
Exchange of Existing Notes
A Canadian Holder of Existing Notes will be considered to have disposed of its Existing Notes on the Effective Date in consideration for New Second Lien Notes and, if such Canadian Holder is an Early Consenting Noteholder, its Noteholder Early Consent Cash Consideration, upon the exchange of such Existing Notes for such New Second Lien Notes and cash (if any). Such consideration shall be paid first in respect of any accrued and unpaid interest, and second in respect of the unpaid principal amount of the Existing Notes.
Any Canadian Holder that is a corporation, partnership, unit trust or any trust of which a corporation or partnership is a beneficiary will generally be required to include in its income for a taxation year the amount of interest accrued or deemed to accrue on the Existing Notes up to the Effective Date or that became receivable or was received by it on or before the Effective Date (except to the extent that such interest was otherwise included in computing income for the year or a preceding year). Any other Canadian Holder (including an individual) will be required to include in income for a taxation year any interest on the Existing Notes received or receivable by such Canadian Holder in the year (depending upon the method regularly followed by the Canadian Holder in computing income) except to the extent that such interest was otherwise included in its income for the year or a preceding year. Where a Canadian Holder is required to include an amount in income on account of interest on the Existing Notes that accrues in respect of the period prior to the date of acquisition by such Canadian Holder, the Canadian Holder should be entitled to a deduction of an equivalent amount in computing income. Where a Canadian Holder is required to include an amount in income on account of interest on the Existing Notes, the Canadian Holder should be entitled to a deduction of an equivalent amount in computing income to the extent that such amount is forgiven and is not paid.
In general terms, a Canadian Holder will realize a capital gain (or capital loss) equal to the amount by which the Canadian Holders proceeds of disposition, less any reasonable costs of disposition, exceed (or are less than) the adjusted cost base to the Canadian Holder of its Existing Notes, determined immediately before the exchange. The proceeds of disposition to a Canadian Holder which disposes of its Existing Notes in exchange for New Second Lien Notes will be an amount equal to the aggregate fair market value (at the time of the exchange) of the New Second Lien Notes received by such Canadian Holder on the exchange, less the fair market value of any New Second Lien Notes received in respect of the payment of interest. Early Consenting Noteholders should consult their own tax advisors with respect to determining the proceeds of disposition of their Existing Notes.
Generally, a portion of any capital loss realized on the exchange of Existing Notes may be denied, equal to the loss otherwise determined multiplied by the portion that the fair market value of the New Second Lien Notes received is of the aggregate of the fair market value of the New Second Lien Notes and Noteholder Early Consent Cash Consideration (if any) received. Noteholders should consult their own tax advisors with respect to any potential loss denial. The tax treatment of any such capital gain (or capital loss) is described below under Taxation of Capital Gains and Capital Losses.
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A Canadian Holder generally will be considered to have acquired the New Second Lien Notes on the exchange at a cost equal to the fair market value of such New Second Lien Notes at the time of the exchange, plus any denied loss realized on the disposition of the Existing Notes described above.
Interest on New Second Lien Notes
A Canadian Holder that is a corporation, partnership, unit trust or any trust of which a corporation or partnership is a beneficiary generally will be required to include in its income for a taxation year the amount of interest accrued or deemed to accrue on the New Second Lien Notes to the end of the year or that became receivable or was received by it before the end of the year (except to the extent that such interest was otherwise included in computing income for the year or a preceding year). Any other Canadian Holder (including an individual) will be required to include in income for a taxation year any interest on the New Second Lien Notes received or receivable by such Canadian Holder in the year (depending upon the method regularly followed by the Canadian Holder in computing income) except to the extent that such interest was otherwise included in its income for the year or a preceding year. Such other Canadian Holders will also be required to include in its income any interest that accrues on the New Second Lien Notes up to any anniversary date (as defined in the Tax Act) of the New Second Lien Notes in the year to the extent such amount was not otherwise included in such Canadian Holders income for the year or a preceding year.
Disposition of New Second Lien Notes
On a disposition or deemed disposition of New Second Lien Notes (including on redemption, repurchase for cancellation or repayment on maturity), a Canadian Holder generally will be required to include in its income for the taxation year in which the disposition or deemed disposition occurs the amount of any interest accrued or deemed to accrue on the New Second Lien Notes to the date of such disposition or deemed disposition (except to the extent that such interest was otherwise included in computing income for the year or a preceding year). Where the Canadian Holder has disposed of the New Second Lien Notes for consideration equal to the fair market value of such New Second Lien Notes, the Canadian Holder may be entitled to a deduction to the extent that the aggregate amount of interest included in computing the Canadian Holders income for the year of disposition or a previous year exceeds amounts received or receivable in respect of such interest. Canadian Holders are advised to consult with a tax advisor in these circumstances.
In general terms, a disposition or deemed disposition of New Second Lien Notes will result in a capital gain (or capital loss) equal to the amount, if any, by which the Canadian Holders proceeds of disposition, less any amount included in the Canadian Holders income as interest and any reasonable costs of disposition, exceed (or are less than) the adjusted cost base to the Canadian Holder of such New Second Lien Notes immediately before the disposition. The tax treatment of any such capital gain (or capital loss) is described below under Taxation of Capital Gains and Capital Losses.
Taxation of Capital Gains and Capital Losses
In general, one-half of any capital gain (a taxable capital gain) realized by a Canadian Holder in a taxation year will be included in the Canadian Holders income in the year and one-half of the amount of any capital loss (an allowable capital loss) realized by a Canadian Holder in a taxation year is required to be deducted from taxable capital gains realized by the Canadian Holder in the year. Allowable capital losses in excess of taxable capital gains for a taxation year may be carried back three years or forward indefinitely, subject to the rules in the Tax Act.
Additional Refundable Tax
A Canadian Holder that is throughout the taxation year a Canadian-controlled private corporation (as defined in the Tax Act) may be liable to pay a tax, a portion of which may be refundable, on certain investment income including amounts in respect of interest and taxable capital gains.
Alternative Minimum Tax
A Canadian Holder that is an individual (other than certain trusts) may be subject to alternative minimum tax under the Tax Act if the Canadian Holder realizes capital gains.
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Eligibility for Investment
Provided that the Common Shares are listed on a designated stock exchange as defined in the Tax Act (which currently includes the TSX) at the relevant time, the New Second Lien Notes will be a qualified investment under the Tax Act for trusts governed by a registered retirement savings plan (RRSP), registered retirement income fund (RRIF), deferred profit sharing plan, registered disability savings plan (RDSP), registered education savings plan (RESP) and tax-free savings account (TFSA).
Notwithstanding that the New Second Lien Notes may be a qualified investment for a trust governed by a RRSP, RRIF, RDSP, RESP or TFSA, the holder or subscriber of or annuitant under such plan will be subject to a penalty tax if such New Second Lien Notes are a prohibited investment under the Tax Act for such RRSP, RRIF, RDSP, RESP or TFSA. The New Second Lien Notes generally will not be a prohibited investment for a RRSP, RRIF, RDSP, RESP or TFSA unless the holder or subscriber of or annuitant under such plan has a significant interest (as defined in the Tax Act) in the Corporation. In addition, the New Second Lien Notes generally will not be a prohibited investment if they are excluded property as defined in the Tax Act.
Holders Not Resident in Canada
The following discussion applies to a Holder who, for the purposes of the Tax Act and any applicable income tax treaty or convention, and at all relevant times: (i) is not and is not deemed to be a resident of Canada; (ii) does not use or hold any Existing Notes, and will not use or hold any New Second Lien Notes in carrying on a business in Canada; (iii) deals at arms length with any transferee resident (or deemed to be resident) in Canada to which the Holder disposes of Existing Notes or New Second Lien Notes; and (iv) is not an insurer who carries on an insurance business in Canada and elsewhere or an authorized foreign bank that carries on a Canadian banking business (each, a Non-Resident Holder).
The following discussion is not applicable to a Non-Resident Holder that is a specified shareholder (as defined in subsection 18(5) the Tax Act) of the Corporation or that does not deal at arms length for purposes of the Tax Act with a specified shareholder of the Corporation. Generally, for this purpose, a specified shareholder of a corporation is a shareholder that owns or is deemed to own, either alone or together with persons with which the shareholder does not deal at arms length for purposes of the Tax Act, shares of the capital stock of the corporation that either: (i) give such holders 25% or more of the votes that could be cast at an annual meeting of the shareholders; or (ii) have a fair market value of 25% or more of the fair market value of all of the issued and outstanding shares of the corporations capital stock. Such Non-Resident Holders should consult a tax advisor. This summary assumes that no interest paid on the Existing Notes or New Second Lien Notes will be in respect of a debt or other obligation to pay an amount to a person with whom the Corporation does not deal at arms length within the meaning of the Tax Act.
Exchange of Existing Notes
A Non-Resident Holder will not be subject to tax under the Tax Act in respect of any capital gain and will not be able to deduct the allowable portion of any capital loss realized by such Non-Resident Holder on the disposition of its Existing Notes.
A Non-Resident Holder will not be subject to Canadian withholding tax under the Tax Act in respect of the accrued and unpaid interest that is paid in respect of the Existing Notes.
Interest on New Second Lien Notes
A Non-Resident Holder should not be subject to Canadian withholding tax under the Tax Act in respect of amounts paid or credited, or deemed to have been paid or credited, by the Corporation as, on account of, or in satisfaction of, interest on the New Second Lien Notes.
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Disposition of New Second Lien Notes
On a disposition or deemed disposition of New Second Lien Notes (including on redemption, repurchase for cancellation or repayment on maturity), a Non-Resident Holder will not be subject to tax under the Tax Act.
EXPERTS
Certain Canadian legal matters relating to matters described in this Circular are to be passed upon by Goodmans LLP on behalf of the Corporation. Certain U.S. Securities Laws relating to matters described in this Circular are to be passed upon by Torys LLP on behalf of the Corporation. Certain matters relating to the Paradigm Capital Opinions described in this Circular are to be passed upon by Paradigm Capital. As at March 6, 2020, the partners and associates of Goodmans LLP and Torys LLP, and the employees of Paradigm Capital, each beneficially owned, directly or indirectly, less than 1% of each of the outstanding Existing Notes and Common Shares.
INTEREST OF CERTAIN PERSONS OR COMPANIES IN MATTERS TO BE ACTED UPON
No director or executive officer of the Corporation, or any person who has held such a position since the beginning of the last completed financial year end of the Corporation, nor any associate or affiliate of the foregoing persons, has any substantial or material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, in any matter to be acted on at the Meetings. As disclosed above, certain directors and/or officers hold certain Common Shares, Existing Notes and/or director deferred share units in amounts that are not material.
OTHER BUSINESS
The Board is not aware of any matters intended to come before the Meetings other than those items of business set forth in the attached Notices of Meetings accompanying this Circular. If any other matters properly come before the Meetings, it is the intention of the persons named in the applicable proxy to vote in respect of those matters in accordance with their judgment.
ADDITIONAL INFORMATION
Financial information for the Corporations most recently completed financial year is provided in the Corporations 2019 Financial Statements and 2019 MD&A. Copies of these documents, the 2018 AIF, the 2019 AGM Circular and this Circular are available upon written request from the Corporate Secretary of Sherritt at Bay Adelaide Centre, East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 3E4 and are also available electronically on SEDAR at www.sedar.com.
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APPROVAL OF BOARD OF DIRECTORS
The contents and sending of this Circular and its distribution to Debtholders and Shareholders have been approved by the Board of Directors.
DATED at Toronto, Ontario, this 6th day of March, 2020.
SHERRITT INTERNATIONAL CORPORATION
BY ORDER OF THE BOARD OF DIRECTORS
(signed) David Pathe |
Chief Executive Officer Sherritt International Corporation |
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CONSENT OF PARADIGM CAPITAL
We hereby consent to the inclusion of our firms name and to the references to (a) our firms opinion dated February 25, 2020 (the CBCA Opinion) in the form described in paragraph 4.04 of Industry Canadas Policy Statement 15-1 Policy Concerning Arrangements under Section 192 of the Canada Business Corporations Act and (b) our firms opinion dated February 25, 2020 (the Fairness Opinion) with respect to the fairness, from a financial point of view, of the Transaction to Sherritt International Corporation (the Corporation), in the management information circular of the Corporation dated March 6, 2020 (the Circular) and to the inclusion of the CBCA Opinion and Fairness Opinion in their entirety and summaries thereof in the Circular and to the filings thereof by the Corporation with the CBCA Director, with the securities regulatory authorities in each province and territory of Canada and with the Ontario Superior Court of Justice (Commercial List). In providing our consent herein, we do not intend that any person other than the Board of Directors of the Corporation shall rely upon such opinions.
Toronto, Ontario March 6, 2020 |
(signed) Paradigm Capital Inc. |
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APPENDIX A
DEBTHOLDERS ARRANGEMENT RESOLUTION
BE IT RESOLVED THAT:
1. | the arrangement (as the same may be, or may have been, amended, modified or supplemented, the Arrangement) pursuant to Section 192 of the Canada Business Corporations Act (the CBCA) of Sherritt International Corporation (the Corporation) and 11722573 Canada Ltd. (together with the Corporation, the Applicants) and involving Sherritt International Oil and Gas Limited, Sherritt International (Bahamas) Inc., Sherritt Power (Bahamas) Inc., SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), Sherritt Utilities Inc., Canada Northwest Oils (Europe) B.V., CNWL Oil (Espana) S.A. and Madagascar Mineral Investments Ltd. as more particularly described and set forth in the plan of arrangement (the Plan) set forth in Appendix C to the management information circular of the Corporation dated March 6, 2020 (the Circular), is hereby authorized, approved and adopted; |
2. | the Plan, as it has been or may be amended, modified or supplemented in accordance with the Plan, is hereby authorized, approved and adopted; |
3. | the arrangement agreement (as the same may be, or may have been, amended, modified or supplemented, the Arrangement Agreement) dated February 25, 2020 between the Applicants as described in the Circular and set forth in Appendix D to the Circular, is hereby authorized and approved and the actions of the Board of Directors of the Corporation in approving the Arrangement Agreement, the Plan and the Arrangement and the actions of the Board of Directors of the Corporation in executing and delivering the Arrangement Agreement and causing the performance by the Corporation of its obligations thereunder, are hereby authorized, ratified and approved; |
4. | notwithstanding the passing of this resolution or the passing of similar resolutions or the approval of the Ontario Superior Court of Justice (Commercial List), the Board of Directors of the Corporation, without further notice to, or approval of, the Noteholders or the CFA Lenders (as such terms are defined in the Circular), are hereby authorized and empowered to (a) amend the Plan and Arrangement Agreement, to the extent permitted by the Plan and Arrangement Agreement, and (b) determine not to proceed with the Arrangement at any time prior to the Arrangement becoming effective pursuant to the provisions of the CBCA; |
5. | any director or officer of the Corporation be and is hereby authorized and directed, for and on behalf of the Corporation (whether under corporate seal or otherwise), to execute and deliver, or cause to be executed, under the seal of the Corporation or otherwise, and delivered articles of arrangement and any and all other documents, agreements and instruments and to perform, or cause to be performed by, such other acts and things, as in such persons opinion may be necessary or desirable to give full effect to these resolutions and the matters authorized hereby, including the transactions required and/or contemplated by the Arrangement and the Plan, such determination to be conclusively evidenced by the execution and delivery of such documents, agreements or other instruments or the doing of any such act or thing; |
6. | notwithstanding the foregoing, the directors of the Corporation are hereby authorized, without further approval of or notice to revoke this resolution. |
A-1
APPENDIX B
STATED CAPITAL REDUCTION RESOLUTION
BE IT RESOLVED, as a special resolution that:
1. | pursuant to subsection 38(1) of the Canada Business Corporations Act, the stated capital in respect of the common shares of Sherritt International Corporation (the Corporation) be reduced to $575 million, without any payment thereon; |
2. | any one director or officer of the Corporation be and is hereby authorized and directed, for and on behalf of the Corporation (whether under corporate seal or otherwise), to execute and deliver, or cause to be executed and delivered, any and all documents, agreements and instruments and to perform, or cause to be performed, all such other acts and things, as in such persons opinion may be necessary or desirable to give full effect to these resolutions and the matters authorized hereby, such determination to be conclusively evidenced by the execution and delivery of such documents or other instruments or the doing of any such act or thing; and |
3. | notwithstanding the foregoing, the directors of the Corporation are hereby authorized, without further approval of or notice to revoke this special resolution. |
B-1
APPENDIX C
PLAN OF ARRANGEMENT
SEE ATTACHED
C-1
Court File No. CV-20-636938-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, c. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD., AND INVOLVING SHERRITT INTERNATIONAL OIL AND GAS LIMITED, SHERRITT INTERNATIONAL (BAHAMAS) INC., SHERRITT POWER (BAHAMAS) INC., SICOG OIL AND GAS LIMITED (FORMERLY SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED), SHERRITT UTILITIES INC., CANADA NORTHWEST OILS (EUROPE) B.V., CNWL OIL (ESPANA) S.A., AND MADAGASCAR MINERAL INVESTMENTS LTD.
PLAN OF ARRANGEMENT
●, 2020
C-2
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 INTERPRETATION |
1 | |||||
1.1 | Definitions |
1 | ||||
1.2 | Certain Rules of Interpretation |
14 | ||||
1.3 | Governing Law |
15 | ||||
1.4 | Currency |
15 | ||||
1.5 | Date for Any Action |
15 | ||||
1.6 | Time |
15 | ||||
ARTICLE 2 TREATMENT OF AFFECTED PARTIES |
15 | |||||
2.1 | Treatment of Noteholders |
15 | ||||
2.2 | Treatment of CFA Lenders |
16 | ||||
2.3 | Alternative CFA Lender Transaction |
17 | ||||
ARTICLE 3 ISSUANCES, DISTRIBUTIONS AND PAYMENTS |
18 | |||||
3.1 | Delivery of Noteholder Early Consent Cash Consideration |
18 | ||||
3.2 | Delivery of New Second Lien Notes |
18 | ||||
3.3 | Delivery of Ambatovy Shares and Ambatovy Debt |
18 | ||||
3.4 | No Liability in respect of Deliveries |
18 | ||||
3.5 | Surrender and Cancellation of Existing Notes |
19 | ||||
3.6 | Application of Plan Distributions |
19 | ||||
3.7 | Withholding Rights |
19 | ||||
ARTICLE 4 IMPLEMENTATION |
19 | |||||
4.1 | Corporate Authorizations |
19 | ||||
4.2 | Effective Date Transactions |
20 | ||||
4.3 | Other Implementation Steps |
24 | ||||
4.4 | Fractional Interests |
24 | ||||
4.5 | Calculations |
24 | ||||
ARTICLE 5 RELEASES |
24 | |||||
5.1 | Release of Released Parties |
24 | ||||
5.2 | Injunctions |
25 | ||||
ARTICLE 6 CONDITIONS PRECEDENT AND IMPLEMENTATION |
25 | |||||
6.1 | Conditions to Plan Implementation |
25 | ||||
6.2 | Waiver of Conditions |
26 | ||||
6.3 | Effectiveness |
26 | ||||
6.4 | Revolving Bank Facility Obligations Unaffected |
27 | ||||
ARTICLE 7 GENERAL |
27 | |||||
7.1 | Deemed Consents, Waivers and Agreements |
27 | ||||
7.2 | Waiver of Defaults |
27 | ||||
7.3 | Compliance with Deadlines |
28 | ||||
7.4 | Paramountcy |
28 |
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7.5 | Deeming Provisions |
28 | ||||
7.6 | Modification of Plan |
28 | ||||
7.7 | Notices |
29 | ||||
7.8 | Further Assurances |
30 |
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PLAN OF ARRANGEMENT
ARTICLE 1
INTERPRETATION
1.1 | Definitions |
In this Plan, unless otherwise stated:
Alternative CFA Lender Transaction has the meaning given to it in Section 2.3(a);
Amalgamated Sherritt has the meaning given to it in Section 4.2(a);
Amalgamation means the amalgamation of Sherritt and Sherritt Amalco pursuant to Section 4.2(a);
Ambatovy Debt means all present or future indebtedness or other obligations owing to the CFA Guarantor by AMSA and by DMSA in respect of the Shareholder Subordinated Loans (as defined in the Ambatovy Shareholders Agreement), including all accrued and unpaid interest in respect thereof;
Ambatovy Interests Electing CFA Lender means a CFA Lender that made an Ambatovy Interests Exchange Election pursuant to the Interim Order;
Ambatovy Interests Exchange Election means, in respect of a CFA Lender, an election made by such CFA Lender pursuant to the Interim Order to receive its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt as the consideration in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims;
Ambatovy Shareholders Agreement means the fourth amendment and restatement of the shareholders agreement dated December 11, 2017, as originally dated October 18, 2006 and as previously amended and restated on February 21, 2008, June 24, 2009, and May 29, 2012, among Sherritt, the CFA Guarantor, Korea Resources Corporation, Sumitomo Corporation, Summit Ambatovy Mineral Resources Investment B.V., Ambatovy Holdings Limited, DMSA and AMSA;
Ambatovy Shares means, collectively, the AMSA Shares and the DMSA Shares;
Amended CFA Loan means a loan on substantially similar terms as the existing CFA Loans, subject to the CFA Loan Amended Terms;
Amended CFA Loan Electing CFA Lender means a CFA Lender that made an Amended CFA Loan Election pursuant to the Interim Order, provided that if a CFA Lender does not make an election pursuant to the Interim Order, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender under this Plan;
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Amended CFA Loan Election means, in respect of a CFA Lender, an election made, or deemed to have been made, by such CFA Lender pursuant to the Interim Order to receive an Amended CFA Loan(s) as the consideration in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims;
AMSA means Ambatovy Minerals S.A.;
AMSA Shares means all of the shares in the capital of AMSA held by the CFA Guarantor;
Applicants means, collectively, Sherritt and Sherritt Amalco;
Arrangement means the arrangement under section 192 of the CBCA on the terms and subject to the conditions set out in this Plan, subject to any amendments, modifications and/or supplements made thereto in accordance with the Arrangement Agreement and this Plan;
Arrangement Agreement means the arrangement agreement dated February 25, 2020, among the Applicants, as it may be amended, restated, modified and/or supplemented from time to time;
Articles of Arrangement means the articles of arrangement of the Applicants in respect of the Arrangement, in form and substance satisfactory to the Applicants, that are required to be filed with the CBCA Director in order for the Arrangement to become effective on the Effective Date;
Business Day means any day, other than a Saturday, Sunday or a statutory or civic holiday, on which banks are generally open for business in Toronto, Ontario;
Canadian Dollars or $ means the lawful currency of Canada;
CBCA means the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended;
CBCA Director means the Director appointed under section 260 of the CBCA;
CBCA Proceedings means the proceedings commenced by the Applicants under the CBCA on February 26, 2020 in connection with this Plan;
CDS means the CDS Clearing and Depository Services Inc. and its successors and assigns;
Certificate of Arrangement means the certificate giving effect to the Arrangement, to be issued by the CBCA Director pursuant to section 192(7) of the CBCA upon receipt of the Articles of Arrangement in respect of the Applicants in accordance with section 262 of the CBCA;
CFA Guarantor means Madagascar Mineral Investments Ltd.;
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CFA Lender Claims means all outstanding Obligations owing by any Person, whether as issuer, guarantor or otherwise, with respect to the CFA Loans, the CFA Loan Agreements or any of the other CFA Loan Documents as at the Effective Date, including, without limitation, all outstanding principal, accrued and unpaid interest at the applicable contract rate, and any fees and other payments (including any applicable prepayment and/or make-whole amounts) pursuant to or in connection with the CFA Loan Documents as at the Effective Date;
CFA Lender Pro Rata Share means, with respect to each CFA Lender, the percentage that the principal amount of CFA Loans held by such CFA Lender bears to the total principal amount of CFA Loans held by all CFA Lenders immediately prior to the Effective Time;
CFA Lenders means, collectively, Summit Ambatovy Mineral Resources Investment B.V. as lender, Sumitomo Corporation as lender guarantor, The Export-Import Bank of Korea as lender, and Korea Resources Corporation as take-out financier, and any of their respective permitted successors or assigns, and CFA Lender means any one of them, as applicable;
CFA Loan Agreements means, collectively, (i) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, The Export-Import Bank of Korea as lender and Korea Resources Corporation as take-out financier; (ii) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, Summit Ambatovy Mineral Resources Investment B.V. as lender and Sumitomo Corporation as lender guarantor, and (iii) the amended and restated development carry finance agreement made as of March 26, 2008, as amended and restated as of June 24, 2009 and as further amended and restated as of December 11, 2017, among Sherritt as borrower, the CFA Guarantor as guarantor, Summit Ambatovy Mineral Resources Investment B.V. as lender and Sumitomo Corporation as lender guarantor, as previously assigned to Summit Ambatovy Mineral Resources Investment B.V. by SNC-Lavalin Inc.;
CFA Loan Amended Terms means (i) the CFA Guarantor shall be the sole borrower under the Amended CFA Loan(s); (ii) Sherritt shall have no obligations in respect of the Amended CFA Loan(s) and there shall be no recourse whatsoever against Sherritt in respect of the Amended CFA Loan(s); and (iii) the CFA Lender in respect of an Amended CFA Loan shall have the right, for up to 12 months following the Effective Date, to direct the CFA Guarantor to transfer such CFA Lenders CFA Lender Pro Rata Share of the Ambatovy Shares and the Ambatovy Debt held by the CFA Guarantor as directed by such CFA Lender in consideration for an amount equal to the amount owing under such CFA Lenders Amended CFA Loan, which will be satisfied through the full and final set off, settlement, repayment and exchange of the CFA Lenders Amended CFA Loan, as such terms may be amended, modified and/or supplemented pursuant to this Plan;
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CFA Loan Documents means, collectively, the CFA Loan Agreements, the other Finance Documents (as defined under the CFA Loan Agreements) and all other documentation, including, without limitation, all guarantee and security documentation, related to the CFA Loans;
CFA Loans means the existing loans made by the CFA Lenders, as applicable, under the CFA Loan Agreements;
CFA Note has the meaning given to it in Section 4.2(c)(i);
Circular means the management information circular of Sherritt dated March 6, 2020, including all appendices thereto, as it may be amended, modified and/or supplemented from time to time, subject to the terms of the Interim Order or other Order of the Court;
Claim means any right or claim of any Person that may be asserted or made in whole or in part against the applicable Persons, or any of them, in any capacity, whether or not asserted or made, in connection with any indebtedness, liability or obligation of any kind whatsoever, and any interest accrued thereon or costs payable in respect thereof, whether at law or in equity, including by reason of the commission of a tort (intentional or unintentional), by reason of any breach of contract or other agreement (oral or written), by reason of any breach of duty (including, any legal, statutory, equitable or fiduciary duty), by reason of any right of setoff, counterclaim or recoupment, or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and together with any security enforcement costs or legal costs associated with any such claim, and whether or not any indebtedness, liability or obligation is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present or future, known or unknown, by guarantee, warranty, surety or otherwise, and whether or not any right or claim is executory or anticipatory in nature, including any claim made or asserted against the applicable Persons, or any of them, through any affiliate, subsidiary, associated or related Person, or any right or ability of any Person to advance a claim for an accounting, reconciliation, contribution, indemnity, restitution or otherwise with respect to any matter, grievance, action (including any class action or proceeding before an administrative or regulatory tribunal), cause or chose in action, whether existing at present or commenced in the future;
Consent Notes means, in respect of an Early Consenting Noteholder, the Existing Notes held by such Early Consenting Noteholder in respect of which votes have been validly cast in favour of this Plan by the Early Consent Deadline pursuant to the Interim Order and in respect of which such vote in favour of this Plan has not been changed or withdrawn, and/or the Existing Notes held by such Early Consenting Noteholder in respect of which such Early Consenting Noteholder has otherwise supported this Plan, in each case in a manner acceptable to the Applicants;
Court means the Ontario Superior Court of Justice (Commercial List);
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Debt means, collectively, the Obligations in respect of the Existing Notes and the CFA Loans;
Debt Documents means, collectively, the Existing Note Documents and the CFA Loan Documents;
Debtholder Claims means, collectively, the Existing Noteholder Claims and the CFA Lender Claims;
Debtholders means, collectively, the Noteholders and the CFA Lenders;
Debtholders Arrangement Resolution means the resolution of the Debtholders, inter alia, approving the Arrangement to be considered and voted upon at the Debtholders Meeting, substantially in the form attached as Appendix A to the Circular;
Debtholders Meeting means the meeting of Debtholders as of the Record Date called and held pursuant to the Interim Order for the purpose of considering and voting on the Debtholders Arrangement Resolution and to consider and vote on such other matters as may properly come before such meeting, and includes any adjournment(s) or postponement(s) of such meeting;
DMSA means Dynatec Madagascar S.A.;
DMSA Shares means all of the shares in the capital of DMSA held by the CFA Guarantor;
Early Consent Date means March 27, 2020, or such later date as the Applicants may determine;
Early Consent Deadline means 5:00 p.m. (Toronto time) on the Early Consent Date, or such later time as the Applicants may determine;
Early Consenting Noteholder means a Noteholder who, by the Early Consent Deadline, has voted in favour of this Plan or has otherwise supported this Plan, in each case in a manner acceptable to the Applicants, and provided that in each case such Noteholder holds its Consent Notes as at the Effective Date;
Effective Date means the date shown on the Certificate of Arrangement issued by the CBCA Director;
Effective Time means such time on the Effective Date as may be specified by the Applicants as the time at which the Arrangement implementation steps set forth in Section 4.2 shall be deemed to commence;
Existing 2021 Notes means the 8.00% senior unsecured debentures issued by Sherritt under the Existing Notes Indenture due November 15, 2021;
Existing 2023 Notes means the 7.50% senior unsecured debentures issued by Sherritt under the Existing Notes Indenture due September 24, 2023;
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Existing 2025 Notes means the 7.875% senior unsecured notes issued by Sherritt under the Existing Notes Indenture due October 11, 2025;
Existing Indenture Trustee means Computershare Trust Company of Canada as trustee under the Existing Notes Indenture, and any successor thereof;
Existing Note Documents means, collectively, the Existing Notes Indenture, the Existing Notes, each Note Guarantee (as defined in the Existing Notes Indenture) and all other documentation related to the Existing Notes;
Existing Noteholder Claims means all outstanding Obligations owing by any Person, whether as issuer, guarantor or otherwise, with respect to the Existing Notes, the Existing Notes Indenture or any other Existing Note Documents as at the Effective Date, including, without limitation, all outstanding principal, accrued and unpaid interest at the applicable contract rate, and any fees and other payments (including any applicable prepayment and/or make-whole amounts) pursuant to or in connection with the Existing Note Documents as at the Effective Date;
Existing Notes means, collectively, the Existing 2021 Notes, the Existing 2023 Notes and the Existing 2025 Notes;
Existing Notes Guarantors means, collectively, Sherritt International Oil and Gas Limited, Sherritt International (Bahamas) Inc., Sherritt Power (Bahamas) Inc., SICOG Oil and Gas Limited (formerly Sherritt International (Cuba) Oil and Gas Limited), Sherritt Utilities Inc., Canada Northwest Oils (Europe) B.V., and CNWL Oil (Espana) S.A.;
Existing Notes Indenture means the second amended and restated indenture in respect of the Existing Notes dated as of July 29, 2016 among Sherritt, the Existing Notes Guarantors and the Existing Indenture Trustee, as it may be further amended, restated, modified and/or supplemented from time to time prior to the Effective Date;
Final Order means the Order of the Court approving the Arrangement under section 192 of the CBCA, which shall include such terms as may be necessary or appropriate to give effect to the Arrangement and this Plan, in form and substance satisfactory to the Applicants, as such Order may be amended from time to time in a manner acceptable to the Applicants;
Governmental Entity means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (i) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (ii) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;
Guarantors means, collectively, the Existing Notes Guarantors and the CFA Guarantor;
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Indenture Trustees means, collectively, the Existing Indenture Trustee and the New Indenture Trustee;
Interim Order means the interim Order of the Court granted on February 26, 2020 pursuant to section 192 of the CBCA, which, among other things, approves the calling of, and the date for, the Debtholders Meeting, as such Order may be amended from time to time in a manner acceptable to the Applicants;
Intermediary means a broker, custodian, investment dealer, nominee, bank, trust company or other intermediary;
Law means any law, statute, constitution, treaty, convention, code, injunction, order, decree, consent decree, judgment, rule regulation, ordinance or other pronouncement having the effect of law whether in Canada or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity, and includes any securities or stock exchange rules or regulations;
New Indenture Trustee means such indenture trustee under the New Notes Indenture as determined by the Applicants by the Effective Date;
New Note Documents means, collectively, the New Notes Indenture, the New Second Lien Notes, the new guarantees to be provided by the New Notes Guarantors pursuant to the New Notes Indenture and the new security documentation to be entered into pursuant to the New Notes Indenture, in each case, in form acceptable to the Applicants and substantially on the terms as described in the Circular, as such terms may be amended pursuant to this Plan;
New Notes Guarantors means, collectively, the Existing Notes Guarantors, 672539 Alberta Ltd., 672540 Alberta Ltd., SI Finance Ltd., Dynatec Technologies Ltd., 1683740 Alberta Ltd., OG Finance Inc., Power Finance Inc., SBCT Logistics Ltd., SIC Marketing Services (UK) Limited, The Cobalt Refinery Holding Company Ltd. and 672538 Alberta Ltd.;
New Notes Indenture means the indenture to be entered into on the Effective Date by Sherritt, the New Notes Guarantors and the New Indenture Trustee, substantially on the terms as described in the Circular, as such terms may be amended pursuant to this Plan, pursuant to which the New Second Lien Notes will be issued;
New Second Lien Notes means the new secured notes to be issued by Sherritt pursuant to the New Notes Indenture and this Plan, which notes will be denominated in Canadian Dollars, be issued in an aggregate principal amount equal to 50% of the aggregate principal amount of Existing Notes outstanding as at the Effective Date plus the aggregate amount of all accrued and unpaid interest outstanding in respect of the Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date, and be substantially on the terms described in the Circular, as such terms may be amended pursuant to this Plan;
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Noteholder Early Consent Cash Consideration means, in respect of an Early Consenting Noteholder, a cash payment in an amount equal to 3% of the principal amount of Consent Notes held by such Early Consenting Noteholder as at the Effective Date, payable on the Effective Date on the terms of this Plan as partial consideration for the exchange of the Existing Notes pursuant to this Plan;
Noteholders means holders of Existing Notes;
Notes Exchange Ratio means 0.5;
Obligations means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the applicable Debt Document;
Order means any order entered by the Court in the CBCA Proceedings;
Person means any individual, firm, corporation, partnership, limited partnership, limited or unlimited liability company, joint venture, fund, association, organization, trust, trustee, executor, administrator, legal personal representative, estate, group, unincorporated association or organization, Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body, whether or not having legal status;
Plan means this plan of arrangement and any amendments, restatements, modifications and/or supplements hereto made in accordance with the terms hereof;
Proxy, Information and Exchange Agent means Kingsdale Advisors;
Record Date means 5:00 p.m. on March 6, 2020;
Released Claims means, collectively, the matters that are subject to release and discharge pursuant to Section 5.1;
Released Parties means, collectively, the Sherritt Entities and each of their respective current and former directors, officers, employees, financial and other advisors, legal counsel and agents, including the Proxy, Information and Exchange Agent, each in their capacity as such;
Revolving Bank Facility means the senior revolving credit facility available under the Revolving Bank Facility Agreement;
Revolving Bank Facility Administrative Agent means National Bank of Canada in its capacity as administrative agent under the Revolving Bank Facility Agreement, for and on behalf of the Revolving Bank Facility Lenders;
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Revolving Bank Facility Agreement means the second amended and restated credit agreement among Sherritt as borrower, the guarantor subsidiaries party thereto as guarantors, National Bank of Canada as administrative agent, the lenders party thereto from time to time, and the other parties thereto, dated as of January 31, 2017, as amended, restated, modified and/or supplemented from time to time pursuant to its terms;
Revolving Bank Facility Amendments means the amendments to the existing Revolving Bank Facility as agreed between Sherritt and the Revolving Bank Facility Lenders to permit the implementation of this Plan, including, without limitation, the issuance of the New Second Lien Notes, and such other amendments as may be agreed between Sherritt and the Revolving Bank Facility Lenders;
Revolving Bank Facility Lenders means the lenders under the Revolving Bank Facility;
Revolving Bank Facility Obligations means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, Revolving Bank Facility or any other such obligations of any of the Revolving Bank Facility Obligors to the Revolving Bank Facility Administrative Agent or the Revolving Bank Facility Lenders under the Revolving Bank Facility Agreement, the other Financing Agreements (as defined in the Revolving Bank Facility Agreement) or under any other agreement among any of the Revolving Bank Facility Obligors and any of the Revolving Bank Facility Administrative Agent and the Revolving Bank Facility Lenders (including in respect of credit card facilities, cash management arrangements, and SWAP and other hedging arrangements, and all security therefor);
Revolving Bank Facility Obligors means, collectively, Sherritt, International Cobalt Company Inc., The Cobalt Refinery Company Inc., New Providence Metals Marketing Inc. and all other subsidiaries of Sherritt that are or may be, from time to time, party to a Financing Agreement (as defined in the Revolving Bank Facility Agreement);
Sherritt means Sherritt International Corporation;
Sherritt Amalco means 11722573 Canada Ltd., a wholly-owned subsidiary of Sherritt;
Sherritt Entities means, collectively, the Applicants, the Guarantors and each of Sherritts other direct and indirect wholly-owed subsidiaries, and, for certainty, shall include Amalgamated Sherritt as the context requires; and
Tax Act means the Income Tax Act (Canada) as amended and all regulations thereunder.
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1.2 | Certain Rules of Interpretation |
For the purposes of this Plan:
(a) | Unless otherwise expressly provided herein, any reference in this Plan to an instrument, agreement or an order or an existing document or exhibit filed or to be filed means such instrument, agreement, order, document or exhibit as it may have been or may be amended, modified, restated or supplemented in accordance with its terms; |
(b) | The division of this Plan into articles, sections, subsections, clauses and paragraphs is for convenience of reference only, and the descriptive headings of articles and sections are not intended as complete or accurate descriptions of the content thereof, none of which shall affect the construction or interpretation of this Plan; |
(c) | The use of words in the singular or plural, or with a particular gender, including a definition, shall not limit the scope or exclude the application of any provision of this Plan to such Person (or Persons) or circumstances as the context otherwise permits; |
(d) | The words includes and including and similar terms of inclusion shall not, unless expressly modified by the words only or solely, be construed as terms of limitation, but rather shall mean includes but is not limited to and including but not limited to, so that references to included matters shall be regarded as illustrative without being either characterizing or exhaustive; |
(e) | Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends; |
(f) | Unless otherwise provided, any reference to a statute or other enactment of parliament, a legislature or other Governmental Entity includes all rules, regulations, policies and blanket orders made thereunder, all amendments to or re-enactments of such statute or other enactment in force from time to time, and, if applicable, any statute or enactment that supplements or supersedes such statute or enactment; |
(g) | References to a specific recital, article, section, subsection or clause shall, unless something in the subject matter or context is inconsistent therewith, be construed as references to that specific recital, article, section, subsection or clause of this Plan, whereas the terms this Plan, hereof, herein, hereto, hereunder and similar expressions shall be deemed to refer generally to this Plan and not to any particular recital, article, section, subsection, clause or other portion of this Plan and shall include any amended or restated Plan and any documents supplemental hereto; and |
(h) | The word or is not exclusive. |
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1.3 | Governing Law |
This Plan shall be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein. All questions as to the interpretation or application of this Plan and all proceedings taken in connection with this Plan and its provisions shall be subject to the exclusive jurisdiction of the Court.
1.4 | Currency |
Unless otherwise stated, all references in this Plan to sums of money are expressed in, and all payments provided for herein shall be made in, Canadian Dollars.
1.5 | Date for Any Action |
If the date on which any action is required to be taken hereunder by a Person is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day.
1.6 | Time |
Time shall be of the essence in this Plan. Unless otherwise specified, all references to time expressed in this Plan and in any document issued in connection with this Plan mean local time in Toronto, Ontario, Canada, and any reference to an event occurring on a Business Day shall mean prior to 5:00 p.m. on such Business Day.
ARTICLE 2
TREATMENT OF AFFECTED PARTIES
2.1 | Treatment of Noteholders |
(a) | On the Effective Date, in accordance with the times and steps and in the sequence set forth in Section 4.2, and subject to the treatment of fractional interests in accordance with Section 4.4: |
(i) | each Noteholder that is an Early Consenting Noteholder shall receive: |
(A) | New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; and |
(B) | its Noteholder Early Consent Cash Consideration; and |
(ii) | each Noteholder that is not an Early Consenting Noteholder shall receive: |
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(A) | New Second Lien Notes in a principal amount equal to (1) the principal amount of Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (2) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date, |
in each case, all of which shall, and shall be deemed to, be received in exchange for each such Noteholders Existing Notes and in full and final settlement of its Existing Noteholder Claims.
(b) | On the Effective Date, the Existing Noteholder Claims shall, and shall be deemed to, have been irrevocably and finally extinguished; each Noteholder shall have no further right, title or interest in or to its Existing Notes or Existing Noteholder Claims; and the Existing Notes, the Existing Notes Indenture and any and all other Existing Note Documents shall be, and shall be deemed to be, cancelled and terminated, all pursuant to this Plan. |
(c) | The reasonable and documented outstanding fees, expenses and disbursements of the Existing Indenture Trustee shall be paid by Amalgamated Sherritt pursuant to the Existing Notes Indenture. |
(d) | All references to the principal amount of the Existing Notes or the Existing Noteholder Claims contained in this Plan shall refer to the principal amount of such Existing Notes or the Existing Noteholder Claims excluding any make-whole premiums, redemption premiums or other similar premiums. |
2.2 | Treatment of CFA Lenders |
(a) | On the Effective Date, in accordance with the times and steps and in the sequence set forth in Section 4.2, in respect of each Ambatovy Interests Electing CFA Lender: |
(i) | each such CFA Lender shall receive its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt, all of which shall, and shall be deemed to, be received in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims; |
(ii) | each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims; and |
(iii) | the CFA Loan Agreement(s) and any and all other CFA Loan Documents (or parts thereof) relating to such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, cancelled and terminated, and any and all security interests granted by Sherritt and/or the CFA Guarantor in respect |
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of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished, |
all pursuant to this Plan.
(b) | On the Effective Date, in accordance with the times and steps and in the sequence set forth in Section 4.2, in respect of each Amended CFA Loan Electing CFA Lender: |
(i) | each such CFA Lender shall receive an Amended CFA Loan in a principal amount equal to the principal amount of its CFA Loan outstanding as at the Effective Date, plus all accrued interest in respect thereof that has not been paid or capitalized as principal up to but excluding the Effective Date, in exchange for its CFA Loan(s) and in full and final settlement of its CFA Lender Claims; |
(ii) | each such CFA Lenders CFA Loan(s) and CFA Lender Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, and such CFA Lender shall have no further right, title or interest in or to its CFA Loan(s) or CFA Lender Claims; and |
(iii) | the CFA Loan Agreement(s) and all other CFA Loan Documents relating to such CFA Lenders CFA Loan(s) shall be deemed to be amended pursuant to this Plan in order to reflect the CFA Loan Amended Terms and shall govern the Amended CFA Loans; any and all security interests granted by Sherritt in respect of such CFA Lenders CFA Loan(s) shall be, and shall be deemed to be, released, discharged and extinguished; and any and all security interests granted by the CFA Guarantor in respect of such CFA Lenders CFA Loan(s) shall be deemed to have been granted in respect of such CFA Lenders Amended CFA Loan(s), |
all pursuant to this Plan.
(c) | All references to the principal amount of the CFA Loans or the CFA Lender Claims contained in this Plan shall refer to the principal amount of such CFA Loans or the CFA Lender Claims excluding any make-whole premiums, redemption premiums or other similar premiums. |
2.3 | Alternative CFA Lender Transaction |
(a) | Notwithstanding Section 2.2, the Applicants shall have the right, on or prior to the Effective Date, to implement (i) the exchange of the CFA Loans for (A) the Ambatovy Shares and the Ambatovy Debt or (B) Amended CFA Loans on a contractual basis with the CFA Lenders outside of this Plan, or (ii) such other transaction in respect of the CFA Loans that may be acceptable to the Applicants, the CFA Guarantor and the CFA Lenders and that is not materially inconsistent with the effect of the exchange of the CFA Loans for (A) the Ambatovy Shares and the Ambatovy Debt or (B) Amended CFA Loans either pursuant to the Plan |
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or on a contractual basis with the CFA Lenders outside of this Plan (in each case, an Alternative CFA Lender Transaction). |
(b) | The Applicants shall be entitled to make such amendments to this Plan as are necessary or desirable to reflect the implementation of an Alternative CFA Lender Transaction at the discretion of the Applicants. |
ARTICLE 3 ISSUANCES, DISTRIBUTIONS AND PAYMENTS
3.1 | Delivery of Noteholder Early Consent Cash Consideration |
The payment by Amalgamated Sherritt on the Effective Date of Noteholder Early Consent Cash Consideration shall be effected through the delivery of cash in the aggregate amount of the Noteholder Early Consent Cash Consideration payable to the Early Consenting Noteholders by Amalgamated Sherritt to CDS for distribution to the Early Consenting Noteholders as of the Effective Date in accordance with CDSs customary practices.
3.2 | Delivery of New Second Lien Notes |
The delivery of the New Second Lien Notes to be issued to the Noteholders pursuant to this Plan shall be made by way of issuance by Amalgamated Sherritt on the Effective Date of a global note issued in the name of CDS (or its nominee) in respect of the Noteholders. CDS and the applicable Intermediaries shall then make delivery of the New Second Lien Notes to the ultimate beneficial recipients thereof entitled to receive the New Second Lien Notes pursuant to this Plan pursuant to standing instructions and customary practices of CDS and such Intermediaries.
3.3 | Delivery of Ambatovy Shares and Ambatovy Debt |
The delivery of the Ambatovy Shares and Ambatovy Debt to the CFA Lenders pursuant to this Plan shall be made on or as soon as practicable after the Effective Date.
3.4 | No Liability in respect of Deliveries |
(a) | None of the Applicants, nor their respective directors, officers, agents or advisors, shall have any liability or obligation in respect of any deliveries, directly or indirectly, from, as applicable, (i) the Existing Indenture Trustee, (ii) the New Indenture Trustee, (iii) CDS or (iv) the Intermediaries, in each case to the ultimate beneficial recipients of any consideration payable or deliverable by the Applicants pursuant to this Plan. |
(b) | The Indenture Trustees shall not incur, and each is hereby released from, any liability as a result of carrying out any provisions of this Plan and any actions related or incidental thereto, save and except for any gross negligence or wilful misconduct on its part (as determined by a final, non-appealable judgment of a court of competent jurisdiction). On the Effective Date after the completion of the transactions set forth in Section 4.2, all duties and responsibilities of the Existing Indenture Trustee arising under or related to the Existing Notes shall be discharged except to the extent required in order to effectuate this Plan. |
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3.5 | Surrender and Cancellation of Existing Notes |
On the Effective Date, CDS (or its nominee) (as registered holder of the Existing Notes on behalf of the Noteholders) and each other Person who holds Existing Notes in registered form on the Effective Date shall surrender, or cause the surrender of, the certificate(s) representing the Existing Notes to the Existing Indenture Trustee for cancellation in exchange for the consideration payable to Noteholders pursuant to Section 2.1. For certainty, notwithstanding whether or not the foregoing is complied with, the Existing Notes shall be deemed to be cancelled pursuant to this Plan in accordance with the steps set forth in Section 4.2.
3.6 | Application of Plan Distributions |
All amounts paid or payable hereunder on account of the Debtholder Claims (including, for greater certainty, any securities received hereunder) shall be applied (i) first, in respect of the accrued but unpaid interest on such Obligations, and (ii) second, in respect of the principal amount of the Obligations to which such Debtholder Claims relate.
3.7 | Withholding Rights |
The Applicants and the CFA Guarantor shall be entitled to deduct and withhold from any consideration or other amount deliverable or otherwise payable to any Person hereunder such amounts as the Applicants or the CFA Guarantor, as applicable, may be required to deduct or withhold with respect to such payment under the Income Tax Act (Canada), or any provision of any applicable federal, provincial, state, local or foreign tax law or treaty, in each case, as amended, provided that any such right to deduct or withhold shall not otherwise change or modify the Applicants or the CFA Guarantors, as applicable, obligations in respect of withholding taxes under the terms of the Existing Notes Indenture, the CFA Loan Agreements and any and all other Debt Documents. To the extent that amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes hereof as having been paid to the relevant Person in respect of which such deduction and withholding was made, provided that such deducted or withheld amounts are actually remitted to the appropriate Governmental Entity.
ARTICLE 4
IMPLEMENTATION
4.1 | Corporate Authorizations |
The adoption, execution, delivery, implementation and consummation of all matters contemplated under this Plan involving corporate action of any of the Applicants will occur and be effective as of the Effective Date (or such other date as the Applicants may agree, acting reasonably), and will be authorized and approved under this Plan and by the Court, where appropriate, as part of the Final Order, in all respects and for all purposes without any requirement of further action by shareholders, directors or officers of the Applicants. All necessary approvals to take actions shall be deemed to have been obtained from the directors or the shareholders of the Applicants, as applicable.
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4.2 | Effective Date Transactions |
Commencing at the Effective Time, the following events or transactions will occur, or be deemed to have occurred and be taken and effected, in the following order in five minute increments (unless otherwise indicated) and at the times set out in this Section 4.2 (or in such other manner or order or at such other time or times as the Applicants may agree, acting reasonably), without any further act or formality required on the part of any Person, except as may be expressly provided herein:
(a) | Sherritt and Sherritt Amalco shall be, and shall be deemed to be, amalgamated and continued as one corporation (Amalgamated Sherritt) under the CBCA in accordance with the following: |
(i) | Name. The name of Amalgamated Sherritt shall be Sherritt International Corporation; |
(ii) | Registered Office. The registered office of Amalgamated Sherritt shall be located in the City of Toronto in the Province of Ontario. The address of the registered office of Amalgamated Sherritt shall be 22 Adelaide Street West, Suite 4220, Bay Adelaide Centre, East Tower, Toronto ON M5H 4E3, Canada; |
(iii) | Restrictions on Business. There shall be no restrictions on the business that Amalgamated Sherritt may carry on; |
(iv) | Articles. The articles of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the articles of Amalgamated Sherritt; |
(v) | Directors. Amalgamated Sherritt shall have a minimum of 3 directors and a maximum of 15 directors, until changed in accordance with the CBCA. Until changed by shareholders of Amalgamated Sherritt, or by the directors of Amalgamated Sherritt in accordance with the CBCA, the directors of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the directors of Amalgamated Sherritt; |
(vi) | Shares. All shares of Sherritt Amalco shall be cancelled without any repayment of capital in respect thereof; no shares will be issued by Amalgamated Sherritt in connection with the Amalgamation and all shares of Sherritt prior to the Amalgamation shall be unaffected and shall continue as shares of Amalgamated Sherritt; |
(vii) | Stated Capital. The stated capital account in respect of the common shares of Amalgamated Sherritt will be equal to the stated capital account in respect of the common shares of Sherritt immediately prior to the Amalgamation; |
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(viii) | By-laws. The by-laws of Sherritt, as in effect immediately prior to the Amalgamation, shall be deemed to be the by-laws of Amalgamated Sherritt; |
(ix) | Effect of Amalgamation. The provisions of subsection 186(a) to (g) of the CBCA shall apply to the Amalgamation with the result that: |
(A) | the amalgamation of the amalgamating corporations and their continuance as one corporation becomes effective; |
(B) | the property of each amalgamating corporation continues to be the property of Amalgamated Sherritt; |
(C) | Amalgamated Sherritt continues to be liable for the obligations of each amalgamating corporation; |
(D) | an existing cause of action, claim or liability to prosecution is unaffected; |
(E) | a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may be continued to be prosecuted by or against Amalgamated Sherritt; |
(F) | a conviction against, or ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against Amalgamated Sherritt; and |
(G) | the Articles of Arrangement are deemed to be the articles of incorporation of Amalgamated Sherritt and the Certificate of Arrangement is deemed to be the certificate of incorporation of Amalgamated Sherritt. |
(b) | The following shall occur concurrently: |
(i) | Amalgamated Sherritt, the New Notes Guarantors and the New Indenture Trustee shall enter into the New Notes Indenture and the other New Note Documents; |
(ii) | in exchange for the Existing Notes, and in full and final settlement of the Existing Noteholder Claims, Amalgamated Sherritt shall issue and/or pay, as applicable: |
(A) | to each Noteholder that is an Early Consenting Noteholder: |
(1) | New Second Lien Notes in an aggregate principal amount equal to (I) the aggregate principal amount of the Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (II) the aggregate amount of all accrued and unpaid interest |
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outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; and |
(2) | its Noteholder Early Consent Cash Consideration; and |
(B) | to each Noteholder that is not an Early Consenting Noteholder, New Second Lien Notes in an aggregate principal amount equal to (I) the aggregate principal amount of the Existing Notes held by such Noteholder as at the Effective Date multiplied by the Notes Exchange Ratio, plus (II) the aggregate amount of all accrued and unpaid interest outstanding in respect of its Existing Notes (calculated at the contractual non-default rate) up to but not including the Effective Date; |
(iii) | the Existing Noteholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Noteholders shall have no further right, title or interest in or to the Existing Notes or their respective Existing Noteholder Claims; and |
(iv) | the Existing Notes, the Existing Notes Indenture and any and all other Existing Note Documents shall be irrevocably cancelled and terminated, provided that the Existing Notes Indenture shall remain in effect solely to allow the Existing Indenture Trustee to make the distributions set forth in this Plan. |
(c) | The following shall occur in sequence: |
(i) | the CFA Guarantor shall declare a dividend or repayment of capital in the aggregate amount of the Obligations under the CFA Loans, payable to Amalgamated Sherritt which shall be satisfied through the issuance of a demand promissory note of the CFA Guarantor (the CFA Note) to Amalgamated Sherritt; and |
(ii) | the CFA Guarantor shall satisfy the CFA Note through the assumption of all of Amalgamated Sherritts Obligations under the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents, and (A) Amalgamated Sherritt shall be, and shall be deemed to be, fully, finally and irrevocably released and discharged from all Obligations in respect of the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents; any and all security interests granted by Sherritt in respect of the CFA Loans shall be, and shall be deemed to be, released, discharged and extinguished pursuant to this Plan; and all CFA Lender Claims as against Amalgamated Sherritt shall, and shall be deemed to be, irrevocably and finally extinguished, and (B) the CFA Note shall be, and shall be deemed to be, fully repaid and satisfied, and Amalgamated Sherritt shall deliver the CFA Note back to the CFA Guarantor as consideration for the |
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assumption of the Obligations under the CFA Loans, the CFA Loan Agreements and all other CFA Loan Documents. |
(d) | The following shall occur concurrently with respect to each Ambatovy Interests Electing CFA Lender: |
(i) | the CFA Guarantor shall transfer, or cause to be transferred, to each Ambatovy Interests Electing CFA Lender its CFA Lender Pro Rata Share of the AMSA Shares, the DMSA Shares and the Ambatovy Debt in consideration for an aggregate amount equal to the amount of the Obligations outstanding under the CFA Loan(s) owing to each such Ambatovy Interests Electing CFA Lender, which amount shall be satisfied through the full and final set-off, settlement, repayment and exchange of each such Ambatovy Interests Electing CFA Lenders CFA Loans and CFA Lender Claims; |
(ii) | the CFA Guarantor shall be, and shall be deemed to be, fully, finally and irrevocably released and discharged from all Obligations in respect of each such Ambatovy Interests Electing CFA Lenders CFA Loans and the CFA Loan Agreements and all other CFA Loan Documents relating to each such Ambatovy Interests Electing CFA Lenders CFA Loans; each such Ambatovy Interests Electing CFA Lenders CFA Loans and CFA Lender Claims shall, and shall be deemed to be, irrevocably and finally extinguished; any and all security interests granted by the CFA Guarantor in respect of each such Ambatovy Interests Electing CFA Lenders CFA Loans shall be, and shall be deemed to be, released, discharged and extinguished pursuant to this Plan; and each such Ambatovy Interests Electing CFA Lender shall have no further right, title or interest in or to its CFA Loans or CFA Lender Claims; and |
(iii) | the CFA Loan Agreements and all other CFA Loan Documents (or parts thereof) relating to each such Ambatovy Interests Electing CFA Lenders CFA Loan(s) shall be irrevocably cancelled and terminated. |
(e) | Concurrently with the steps set forth in subsection 4.2(d) above, the following shall occur concurrently with respect to each Amended CFA Loans Electing CFA Lender: |
(i) | each Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be exchanged for Amended CFA Loan(s) in a principal amount equal to the principal amount of its CFA Loan(s) outstanding as at the Effective Date, plus all accrued interest in respect thereof that has not been paid or capitalized as principal up to but excluding the Effective Date, in full and final set-off, settlement, repayment and exchange of each such Amended CFA Loans Electing CFA Lenders CFA Loans and CFA Lender Claims; |
(ii) | each such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall, and shall be deemed to be, irrevocably and finally extinguished, and |
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each such Amended CFA Loans Electing CFA Lender shall have no further right, title or interest in or to its CFA Loans; and |
(iii) | the CFA Loan Agreements and all other CFA Loan Documents relating to such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be deemed to be amended pursuant to this Plan in order reflect the CFA Loan Amended Terms and shall govern the Amended CFA Loans, and any and all security interests granted by the CFA Guarantor in respect of each such Amended CFA Loans Electing CFA Lenders CFA Loan(s) shall be deemed to have been granted by the CFA Guarantor in respect of each such Amended CFA Loans Electing CFA Lenders Amended CFA Loan(s). |
(f) | The releases referred to in Section 5.1 shall become effective. |
4.3 | Other Implementation Steps |
The Applicants and the other Sherritt Entities may undertake, at their sole discretion, any other corporate steps or transactions necessary or desirable to implement this Plan on the terms set out herein (as may be amended pursuant to the terms hereof) in any manner and on such date(s) and/or time(s) determined by the Applicants in their sole discretion.
4.4 | Fractional Interests |
(a) | The New Second Lien Notes issued pursuant to this Plan shall be issued in minimum increments of $1,000, and the amount of New Second Lien Notes that each Noteholder shall be entitled to under this Plan shall in each case be rounded down to the nearest multiple of $1,000 without compensation therefor. |
(b) | All payments made in cash pursuant to this Plan shall be made in minimum increments of $0.01, and the amount of any payments to which a Person may be entitled to under this Plan shall be rounded down to the nearest multiple of $0.01. |
4.5 | Calculations |
All calculations made by the Applicants pursuant to this Plan shall be conclusive, final and binding on all Persons affected by this Plan.
ARTICLE 5
RELEASES
5.1 | Release of Released Parties |
At the applicable time pursuant to Section 4.2, each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Existing Notes, the Existing Note Documents, the CFA Loans, the CFA Loan Documents, any and all Ambatovy Shares and Ambatovy Debt transferred pursuant to this Plan, the Arrangement, the Arrangement Agreement, this Plan, the CBCA
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Proceedings and any other proceedings commenced with respect to or in connection with this Plan, the transactions contemplated hereunder, and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (i) any of the Released Parties from or in respect of their respective obligations under this Plan or any Order or document ancillary thereto (including, for greater certainty, to the extent applicable, any of the CFA Guarantors obligations under any Amended CFA Loan(s) issued pursuant to this Plan to any Amended CFA Loan Electing CFA Lender(s)), or (ii) any Released Party from liabilities or claims attributable to such Released Partys fraud, gross negligence or wilful misconduct, as determined by the final, non-appealable judgment of a court of competent jurisdiction.
5.2 | Injunctions |
All Persons are permanently and forever barred, estopped, stayed and enjoined, on and after the Effective Date, with respect to any and all Released Claims, from (i) commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever of any Person against the Released Parties, as applicable; (ii) enforcing, levying, attaching, collecting or otherwise recovering or enforcing by any manner or means, directly or indirectly, any judgment, award, decree or order against the Released Parties; (iii) creating, perfecting, asserting or otherwise enforcing, directly or indirectly, any lien or encumbrance of any kind against the Released Parties or their property; or (iv) taking any actions to interfere with the implementation or consummation of this Plan or the transactions contemplated hereunder; provided, however, that the foregoing shall not apply to the enforcement of any obligations under this Plan or any document, instrument or agreement executed to implement this Plan.
ARTICLE 6
CONDITIONS PRECEDENT AND IMPLEMENTATION
6.1 | Conditions to Plan Implementation |
The implementation of this Plan shall be conditional upon the fulfillment, satisfaction or waiver (to the extent permitted by Section 6.2) of the following conditions:
(a) | the Arrangement Agreement shall be in full force and effect and shall have not been terminated by the Applicants; |
(b) | this Plan and the transactions contemplated hereby shall be consistent with the terms of the transactions described in the Circular in all material respects, subject to any amendments to this Plan permitted by the terms hereof or as otherwise permitted by the Court; |
(c) | this Plan shall have been approved by the requisite majorities of affected stakeholders as and to the extent required in the Interim Order or as otherwise ordered by the Court; |
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(d) | this Plan shall have been approved by the Court pursuant to the Final Order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Applicants, vacated or subject to pending appeal; |
(e) | all material filings required under applicable Laws in connection with the Arrangement shall have been made and any material regulatory or third party consents or approvals that are required in connection with the Arrangement shall have been obtained and, in the case of waiting or suspensory periods, such waiting or suspensory periods shall have expired or been terminated; |
(f) | there shall not be in effect any preliminary or final decision, order or decree by a Governmental Entity, no application shall have been made to any Governmental Entity, and no action or investigation shall have been announced, threatened in writing or commenced by any Governmental Entity, in consequence of or in connection with the Arrangement that restrains, prohibits or materially impedes (or if granted would reasonably be expected to restrain, prohibit or materially impede) the Arrangement, or requires or proposes to require a material variation to the Arrangement that is not acceptable to the Applicants; |
(g) | no Law shall have been passed and become effective, the effect of which makes the consummation of this Plan illegal; |
(h) | the terms of the Revolving Bank Facility shall be amended, prior to or concurrently with the implementation of this Plan, to reflect the Revolving Bank Facility Amendments; and |
(i) | the Applicants shall have completed all necessary corporate actions and proceedings as they deem necessary or advisable, in their reasonable discretion, in connection with the Arrangement and this Plan. |
6.2 | Waiver of Conditions |
The Applicants may at any time and from time to time waive the fulfillment or satisfaction, in whole or in part, of the conditions set out herein, provided however that the condition set out in Section 6.1(d) cannot be waived.
6.3 | Effectiveness |
This Plan will become effective in the sequence described in Section 4.2 on the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, and shall, from and after the Effective Time, be binding on and enure to the benefit of the Applicants and the other Sherritt Entities, the Debtholders, the Indenture Trustees, the Released Parties and all other Persons named or referred to in, or subject to, this Plan and their respective successors and assigns and their respective heirs, executors, administrators and other legal representatives, successors and assigns. The Articles of Arrangement shall be filed and the Certificate of Arrangement shall be issued in each case with respect to the Arrangement in its entirety. The Certificate of Arrangement shall be conclusive evidence that the Arrangement has become effective and that each of the provisions in Section 4.2 has become effective in the sequence set
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forth therein. No portion of this Plan shall take effect with respect to any party or Person until the Effective Time.
6.4 | Revolving Bank Facility Obligations Unaffected |
Notwithstanding any other provision of this Plan, (i) nothing herein shall affect the Revolving Bank Facility Obligations, and (ii) all rights, interests, claims and entitlements of the Revolving Bank Facility Administrative Agent and the Revolving Bank Facility Lenders under and in respect of the Revolving Bank Facility Agreement, the other Financing Agreements (as defined in the Revolving Bank Facility Agreement), and all other Revolving Bank Facility Obligations and related agreements shall remain unaffected in all respects by this Plan (including all transactions, releases, injunctions, waivers and deeming provisions contemplated herein). Without limiting the foregoing, the provisions of Article 5 and Sections 6.3, 7.1, 7.2 and 7.4 shall not apply to the Revolving Bank Facility Administrative Agent, the Revolving Bank Facility Lenders or the Revolving Bank Facility Obligations, and the term Persons, as used therein, shall exclude the Revolving Bank Facility Administrative Agent and the Revolving Bank Facility Lenders in respect of the Revolving Bank Facility Obligations.
ARTICLE 7
GENERAL
7.1 | Deemed Consents, Waivers and Agreements |
At the Effective Time:
(a) | each Debtholder shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety; |
(b) | each Sherritt Entity and Debtholder shall be deemed to have executed and delivered to the other parties all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan in its entirety; and |
(c) | all consents, releases, assignments and waivers, statutory or otherwise, required from any Person to implement and carry out this Plan in its entirety shall be deemed to have been executed and delivered to the Applicants. |
7.2 | Waiver of Defaults |
From and after the Effective Time, all Persons named or referred to in, or subject to, this Plan shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limiting the foregoing, from and after the Effective Time, all Persons shall be deemed to have:
(a) | waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection |
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with, the Debt, the Debt Documents, the Arrangement, the Arrangement Agreement, this Plan, the transactions contemplated hereunder, the CBCA Proceedings and any other proceedings commenced with respect to or in connection with this Plan and any and all amendments or supplements thereto. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Applicants or the other Sherritt Entities, as applicable, and their respective successors and assigns from performing their obligations under this Plan or any contract or agreement entered into pursuant to, in connection with, or contemplated by, this Plan; and |
(b) | agreed that if there is any conflict between the provisions of any agreement or other arrangement, written or oral, existing between such Person and any of the Applicants prior to the Effective Date and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly, |
provided, however, that notwithstanding any other provision of this Plan, nothing herein shall affect the obligations of any of the Applicants to any employee thereof in their capacity as such, including any contract of employment between any Person and any of the Applicants.
7.3 | Compliance with Deadlines |
The Applicants have the right to waive strict compliance with the Early Consent Deadline, and the right to waive strict compliance with any election or other deadlines pursuant to this Plan, and shall be entitled to waive any deficiencies with respect to any forms or other documentation submitted pursuant to this Plan.
7.4 | Paramountcy |
From and after the Effective Date, any conflict between this Plan and the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, loan agreement, commitment letter, by-laws or other agreement, written or oral, and any and all amendments or supplements thereto existing between one or more of the Debtholders and any one or more of the Applicants and/or the Guarantors with respect to the Debt Documents as at the Effective Date shall be deemed to be governed by the terms, conditions and provisions of this Plan and the Final Order, which shall take precedence and priority.
7.5 | Deeming Provisions |
In this Plan, the deeming provisions are not rebuttable and are conclusive and irrevocable.
7.6 | Modification of Plan |
(a) | The Applicants reserve the right to amend, restate, modify and/or supplement this Plan at any time and from time to time, provided that (except as provided in subsection (d) below) any such amendment, restatement, modification or |
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supplement must be contained in a written document that is (i) filed with the Court and, if made following the Debtholders Meeting, approved by the Court, and (ii) communicated to the Debtholders in the manner required by the Court (if so required). |
(b) | Any amendment, restatement, modification or supplement to this Plan may be proposed by the Applicants at any time prior to or at the Debtholders Meeting, with or without any prior notice or communication (other than as may be required under the Interim Order), and if so proposed and accepted at the Debtholders Meeting, shall become part of this Plan for all purposes. |
(c) | Any amendment, restatement, modification or supplement to this Plan may be made by the Applicants, at any time and from time to time, without requiring further approval at Debtholders Meeting or the filing with, or approval of, the Court, in order to reflect the Alternative CFA Lender Transaction, if such Alternative CFA Lender Transaction is agreed to by the Applicants and the applicable CFA Lender(s), as set out in Section 2.3. |
(d) | Any amendment, restatement, modification or supplement to this Plan may be made following the Debtholders Meeting by the Applicants, without requiring filing with, or approval of, the Court, provided that it concerns a matter which is of an administrative nature and is required to better give effect to the implementation of this Plan and is not materially adverse to the financial or economic interests of any of the Debtholders. |
7.7 | Notices |
Any notice or other communication to be delivered hereunder must be in writing and refer to this Plan and may, as hereinafter provided, be made or given by personal delivery, prepaid mail or email addressed to the respective parties as follows:
(a) | if to the Applicants, at: |
Sherritt International Corporation
c/o Goodmans LLP
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Attention: Robert J. Chadwick and Caroline Descours
Email: rchadwick@goodmans.ca
cdescours@goodmans.ca
(b) | if to the Noteholders, to the address for the Existing Indenture Trustee on behalf of the Noteholders; |
(c) | if to a CFA Lender, to the address for such CFA Lender as shown on Sherritts books and records, |
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or to such other address as any party above may from time to time notify the others in accordance with this Section 7.7. In the event of any strike, lock-out or other event which interrupts postal service in any part of Canada, all notices and communications during such interruption may only be given or made by personal delivery or by email and any notice or other communication given or made by prepaid mail within the five (5) Business Day period immediately preceding the commencement of such interruption, unless actually received, shall be deemed not to have been given or made. Any such notices and communications so given or made, in the case of notice by way of personal delivery or email, shall be deemed to have been given or made and to have been received on the day of delivery or of emailing, as applicable, if received on a Business Day before 5:00 p.m. (local time), or on the next following Business Day if received after 5:00 p.m. (local time) on a Business Day or at any time on a non-Business Day. Otherwise, such communication shall be deemed to have been given and made and to have been received on the fifth Business Day following the date on which such notice or other communication is mailed. The unintentional failure by the Applicants to give a notice contemplated hereunder to any particular Debtholder shall not invalidate this Plan or any action taken by any Person pursuant to this Plan.
7.8 | Further Assurances |
Notwithstanding that the transactions and events set out herein will occur and be deemed to occur in the order set out in this Plan without any further act or formality, each of the Persons named or referred to in, affected by or subject to, this Plan will make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them to carry out the full intent and meaning of this Plan and to give effect to the transactions contemplated herein. For greater certainty, and without limiting any other provision of this Plan, each of the CFA Lenders, and any of their respective successors or assigns, shall take such steps, execute and submit such documents and complete such filings as necessary or desirable to effectuate the transactions contemplated hereby.
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APPENDIX D
ARRANGEMENT AGREEMENT
SEE ATTACHED
D-1
ARRANGEMENT AGREEMENT
THIS ARRANGEMENT AGREEMENT is made as of the 25th day of February, 2020 (the Agreement).
BETWEEN:
SHERRITT INTERNATIONAL CORPORATION, a corporation existing under the laws of Canada (Sherritt)
and
11722573 CANADA LTD., a corporation incorporated under the laws of Canada (Sherritt Amalco)
RECITALS:
A. Sherritt and Sherritt Amalco intend to apply to the Ontario Superior Court of Justice (Commercial List) (the Court) for an order approving the arrangement (the Arrangement), pursuant to Section 192 of the Canada Business Corporations Act (the CBCA), as set forth in the plan of arrangement (as may be amended, modified and/or supplemented, the Plan of Arrangement) a copy of which is attached hereto as Schedule A; and
B. Sherritt and Sherritt Amalco (collectively, the Parties) wish to enter into this Agreement to formalize certain matters relating to the foregoing and other matters relating to the Plan of Arrangement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the premises and the covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
Article 1
INTERPRETATION
1.01 | Definitions |
All capitalized terms not defined in this Agreement shall have the meaning ascribed to them in the Plan of Arrangement.
1.02 | Interpretation Not Affected by Headings |
The division of this Agreement into articles, sections and schedules and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
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1.03 | Article References |
Unless reference is specifically made to some other document or instrument, all references herein to articles, sections and schedules are to articles, sections and schedules of this Agreement.
1.04 | Incorporation of Schedules |
The following schedules are incorporated into and form an integral part of this Agreement:
Schedule A Plan of Arrangement
1.05 | Extended Meanings |
Unless the context otherwise requires, words importing the singular number shall include the plural and vice versa; words importing any gender shall include all genders; and words importing persons shall include individuals, partnerships, associations, bodies corporate, trusts, unincorporated organizations, governments, regulatory authorities, and other entities.
1.06 | Date for any Action |
In the event that any date on which any action required to be taken hereunder by any of the Parties hereto is not a Business Day in the place where the action is required to be taken, such action shall be required to be taken on the next succeeding day which is a Business Day in such place.
1.07 | Entire Agreement |
This Agreement, together with the schedules attached hereto, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, among the Parties with respect to the subject matter hereof.
1.08 | Governing Law |
This Agreement will be governed by, interpreted and enforced in accordance with the laws of the province of Ontario and the federal laws of Canada. All questions as to the interpretation or application of this Agreement and all proceedings taken in connection with this Agreement and its provisions shall be subject to the exclusive jurisdiction of the Court.
Article 2
THE ARRANGEMENT
2.01 | Arrangement |
Sherritt and Sherritt Amalco shall apply to the Court pursuant to Section 192 of the CBCA for an order approving the Arrangement and in connection with such application shall:
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(a) | proceed with and diligently prosecute an application for the Final Order; and |
(b) | subject to obtaining the approvals contemplated in the Plan of Arrangement and such other conditions precedent to the implementation of the Arrangement (as set out herein and in the Plan of Arrangement), take steps necessary to submit the Arrangement to the Court and apply for the Final Order. |
Subject to the fulfillment or waiver of the conditions set forth herein (including, for certainty, the Plan of Arrangement), the Parties shall deliver to the CBCA Director, immediately following fulfillment or waiver, as applicable, of such conditions, articles of arrangement and such other documents as may be required to give effect to the Arrangement.
Article 3
COVENANTS
3.01 | General Covenants |
Each Party covenants with the other Party that it will:
(a) | make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them to carry out the full intent and meaning of the Plan of Arrangement and to give effect to the transactions contemplated therein, both prior to and following the Effective Date; |
(b) | use all reasonable efforts to cause each of the conditions precedent set forth in Section 5.01 hereof which are within its control to be satisfied on or before the Effective Date; and |
(c) | not take any action that would be knowingly contrary with the transactions contemplated by this Agreement and the Plan of Arrangement. |
3.02 | Additional Covenants of the Parties |
Each Party further covenants and agrees that it will, as applicable:
(a) | submit the Arrangement to the Court and apply for the Final Order; |
(b) | perform the obligations and take the actions required to be performed by it under this Agreement and the Plan of Arrangement, and do all such other acts and things as may be necessary, or within the reasonable discretion of such Party desirable, and within its power and control in order to carry out and give effect to the transactions contemplated by this Agreement and the Plan of Arrangement, including (without limitation) using commercially reasonable efforts to: |
(i) | effect the issuances, deliveries and payments set forth in Sections 3.1 to 3.3 of the Plan of Arrangement; |
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(ii) | carry out the Effective Date transactions set forth in Section 4.2 of the Plan of Arrangement; |
(iii) | obtain the approvals provided for in the Interim Order; |
(iv) | obtain the Final Order; and |
(v) | obtain such other material consents, approvals and/or waivers as are necessary for the implementation of the Arrangement; |
(c) | upon issuance of the Final Order and subject to the conditions precedent in Article 5 hereof and Section 6.1 of the Plan of Arrangement, proceed to file the Articles of Arrangement, the Final Order and all related documents with the CBCA Director in accordance with the CBCA; and |
(d) | file such materials, together with other disclosure materials required to be filed in accordance with applicable corporate and securities laws, in a timely and expeditious manner. |
Article 4
REPRESENTATIONS AND WARRANTIES
4.01 | Representations and Warranties of the Parties |
Each Party represents and warrants to the other Party as follows, and acknowledges that the other Party is relying upon such representations and warranties:
(a) | such Party is an entity duly formed and validly existing under the laws of the jurisdiction of its organization and has the power and capacity to enter into this Agreement, and to perform its obligations hereunder; |
(b) | the execution and delivery of this Agreement and all documents to be delivered pursuant hereto and the completion of the transactions contemplated hereby do not and will not, to the best of the knowledge of such Party who have been involved in the discussions concerning the Plan of Arrangement: |
(i) | result in any violation of the provisions of the articles or by-laws or similar organizational documents of such Party; and |
(ii) | violate or conflict with any judgment, order, statute, law, ordinance, rule or regulation applicable to such Party or any of its properties or assets, except, in the case for violations or conflicts that, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on such Partys ability to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and |
(c) | the execution and delivery of this Agreement and the completion of the transactions contemplated hereby have been duly approved by the board of directors or applicable governance committee of such Party and this Agreement |
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constitutes a valid and binding obligation of such Party enforceable against it in accordance with its terms. |
Article 5
CONDITIONS PRECEDENT
5.01 | Mutual Conditions Precedent |
The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be subject to the fulfilment or satisfaction, on or before the Effective Date, of each of the following conditions, any of which (that are in favour of the Parties) may be waived collectively by them without prejudice to their right to rely on any other condition:
(a) | the conditions precedent set out in Article 6.1 of the Plan of Arrangement shall have been fulfilled, satisfied or waived pursuant to the terms of the Plan of Arrangement; and |
(b) | the Parties shall have taken all necessary corporate actions and proceedings in connection with, and in order to give effect to, the Plan of Arrangement. |
Article 6
NOTICES
6.01 | Notices |
Any notices or communication to be made or given hereunder shall be in writing (including by e-mail) and be made or given by the person making or giving it or by any agent of such person authorized for that purpose by personal delivery, by prepaid courier delivery or by e-mail addressed to the respective Parties as follows:
If to Sherritt or Sherritt Amalco:
Sherritt International Corporation
22 Adelaide Street West, Suite 4220
Toronto, Ontario M5H 4E3
Canada
Attention: David Pathe / Ward Sellers
E-mail: david.pathe@sherritt.com / ward.sellers@sherritt.com
with a copy to:
Goodmans LLP
333 Bay Street, Suite 3400
Toronto, Ontario M5H 2S7
Canada
Attention: Robert J. Chadwick / Caroline Descours
E-mail: rchadwick@goodmans.ca / cdescours@goodmans.ca
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or to such other address as any Party may from time to time notify the others in accordance with this Section 6.01. In the event of any strike, lock-out or other event which interrupts postal service in any part of Canada, all notices and communications during such interruption may only be given or made by personal delivery or by e-mail and any notice or other communication given or made by prepaid mail within the five Business Day period immediately preceding the commencement of such interruption, unless actually received, shall be deemed not to have been given or made. All such notices and communications so given or made shall be deemed to have been received, in the case of notice by e-mail or by personal delivery prior to 5:00 p.m. (local time) on a Business Day, when received or if received after 5:00 p.m. (local time) on a Business Day or at any time on a non-Business Day, on the next following Business Day and, in the case of notice mailed as aforesaid, on the fifth Business Day following the date on which such notice or other communication is mailed.
Article 7
AMENDMENT
7.01 | Amendments |
This Agreement may, at any time and from time to time, but not later than the Effective Date, be amended in any respect whatsoever by written agreement of the Parties hereto without, subject to applicable law, further notice to or authorization on the part of their respective securityholders.
7.02 | Termination |
This Agreement shall be terminated if an agreement to terminate it is executed and delivered by all Parties or may be terminated by any Party on written notice to the other Party upon any termination of the CBCA Proceedings.
Article 8
GENERAL
8.01 | Binding Effect |
This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement shall be solely for the benefit of the Parties hereto and no other Person shall be a third party beneficiary hereof.
8.02 | No Assignment |
No Party may assign its rights or obligations under this Agreement without the consent of the other Party.
8.03 | Equitable Remedies |
All covenants herein shall be qualified as to applicable bankruptcy and other laws affecting the enforcement of creditors rights generally and to the effect that specific performance, being an equitable remedy, may only be ordered at the discretion of the Court.
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8.04 | Severability |
If any one or more of the provisions or parts thereof contained in this Agreement should be or become invalid, illegal or unenforceable in any respect in any jurisdiction, the remaining provisions or parts thereof contained herein shall be and shall be conclusively deemed to be, as to such jurisdiction, severable therefrom and:
(a) | the validity, legality or enforceability of such remaining provisions or parts thereof shall not in any way be affected or impaired by the severance of the provisions or parts thereof severed; and |
(b) | the invalidity, illegality or unenforceability of any provision or part thereof contained in this Agreement in any jurisdiction shall not affect or impair such provision or part thereof or any other provisions of this Agreement in any other jurisdiction. |
8.05 | Time of Essence |
Time shall be of the essence in respect of this Agreement.
8.06 | Execution in Counterparts |
This Agreement may be executed in any number of counterparts, each of which is and is hereby conclusively deemed to be an original and which counterparts collectively are to be conclusively deemed one instrument. A counterpart may be delivered by e-mail or other electronic means, which shall be as effective as hand delivery of the original executed counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date first written above.
SHERRITT INTERNATIONAL CORPORATION | ||
Per: | (signed) Andrew Snowden | |
Name: Andrew Snowden | ||
Title: Senior Vice President & Chief Financial Officer |
11722573 CANADA LTD. | ||
Per: | (signed) Ward Sellers | |
Name: Ward Sellers | ||
Title: Director & Secretary |
[Signature Page to Arrangement Agreement]
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SCHEDULE A
PLAN OF ARRANGEMENT
[See Appendix C]
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APPENDIX E
NOTICE OF APPLICATION
SEE ATTACHED
E-1
Court File No.: CV-20 - 636938-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, c. C-44, AS AMENDED, AND RULE 14.05(2) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD., AND INVOLVING SHERRITT INTERNATIONAL OIL AND GAS LIMITED, SHERRITT INTERNATIONAL(BAHAMAS) INC., SHERRITT POWER(BAHAMAS) INC., SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED, SHERRITT UTILITIES INC., CANADA NORTHWEST OILS (EUROPE) B.V., CNWL OIL (ESPANA) S.A., AND MADAGASCAR MINERAL INVESTMENTS LTD.
SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD.
Applicants
NOTICE OF APPLICATION
TO THE RESPONDENTS:
A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants. The claim made by the Applicants appears on the following page.
THIS APPLICATION will come on for a hearing before a Judge presiding over the Commercial List on April 16, 2020 at 10:00 a.m. (Toronto time) or such other date to be set by the Court, at 330 University Avenue, Toronto, Ontario.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the Applicants lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in this court office, and you or your lawyer must appear at the hearing.
IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the Applicants lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in the court office
where the application is to be heard as soon as possible, but not later than 2 p.m. on the day before the hearing.
IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
Date February 26, 2020 | Issued by | /s/ Alexandra Medeiros Cardoso | ||||
Alexandra Medeiros Cardoso | ||||||
Registrar, Superior Court of Justice | ||||||
Local registrar | ||||||
Address of | 330 University Avenue, 9th Floor | |||||
court office | Toronto, Ontario M5G 1R7 |
TO: |
COMPUTERSHARE TRUST COMPANY OF CANADA, as Indenture Trustee | |
100 University Avenue | ||
11th Floor, North Tower | ||
Toronto, ON M5J 2Y1 | ||
TO: |
SUMITOMO CORPORATION | |
2-3-2, Otemachi, Chiyoda-Ku | ||
Tokyo, 100-8601 | ||
Japan | ||
TO: |
SUMMIT AMBATOVY MINERAL RESOURCES INVESTMENT B.V. | |
2-3-2, Otemachi, Chiyoda-Ku | ||
Tokyo, 100-8601 | ||
Japan |
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TO: | THE EXPORT-IMPORT BANK OF KOREA | |
16-1, Yeouido-dong, Yeongdeungpo-gu, | ||
Seoul 150-996, | ||
Korea | ||
TO: | KOREA RESOURCES CORPORATION | |
199 Hyeoksin-ro | ||
Wonju-si, Gangwon-do | ||
Republic of Korea 26464 | ||
TO: | THE DIRECTOR UNDER THE CANADA BUSINESS | |
CORPORATIONS ACT | ||
Compliance & Policy Directorate | ||
Corporations Canada, Industry Canada | ||
9th Floor, Jean Edmonds Tower South | ||
365 Laurier Avenue West | ||
Ottawa, ON K1A 0C8 |
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APPLICATION
1. | THE APPLICANTS MAKE AN APPLICATION FOR: |
a) | an interim Order (the Interim Order) for advice and directions pursuant to section 192(4) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the CBCA) with respect to a proposed arrangement (the Arrangement) of Sherritt International Corporation (Sherritt) and 11722573 Canada Ltd. (Sherritt Amalco and, together with Sherritt, the Applicants) pursuant to a Plan of Arrangement (the CBCA Plan), including authorizing the Applicants to conduct a meeting of (i) Debtholders to, among other things, consider and vote on the CBCA Plan, and (ii) a meeting of Shareholders to, among other things, consider and vote on a reduction of Sherritts stated capital, and providing certain ancillary relief;1 |
b) | an Order approving the Arrangement pursuant to sections 192(3) and 192(4) of the CBCA; and |
c) | such further and other relief as this Court may deem just. |
2. | THE GROUNDS FOR THE APPLICATION ARE: |
a) | the Applicants are corporations governed by the CBCA; |
b) | it is expected that, in connection with the Arrangement, Sherritt and Sherritt Amalco will amalgamate; |
1 | Capitalized terms not otherwise defined herein have the meanings given to them in the Snowden Affidavit (as defined below). |
c) | the Applicants wish to effect fundamental changes in the nature of an arrangement under the provisions of the CBCA; |
d) | it is not practicable for the Applicants to effect the Arrangement under any other provision of the CBCA; |
e) | the Application has been put forward in good faith and is in the best interests of the Applicants and the stakeholders of the Applicants; |
f) | the Arrangement is procedurally and substantively fair and reasonable to all affected parties; |
g) | the Applicants intend to rely upon the prospectus and registration exemptions found in section 2.11 of National Instrument 45-106 Prospectus Exemptions and section 3(a)(10) of the United States Securities Act, 1933 with respect to the new second lien notes to be issued by Sherritt pursuant to the Arrangement. If made, the final Order approving the Arrangement (the Final Order) will constitute the basis for these exemptions; |
h) | this Notice of Application will be sent to all of those listed in this Notice of Application; |
i) | all statutory requirements under the CBCA have been or will have been satisfied by the hearing of the within Application; |
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j) | certain of the Debtholders of the Applicants are resident outside of Ontario and will be served pursuant to the terms of the Interim Order or any other order for advice and directions granted by this Court; |
k) | rules 1.04, 1.05, 3.02, 14.05, 16, 17.02, 37, 38 and 39 of the Rules of Civil Procedure; |
1) | section 192 of the CBCA; and |
m) | such further and other grounds as counsel may advise and this Court may permit. |
3. | THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the Application: |
a) | such interim Order as may be granted by this Court; |
b) | the affidavit of Andrew Snowden sworn February 25, 2020, and the exhibits thereto (the Snowden Affidavit); |
c) | any further affidavit to be sworn on behalf of the Applicants, with exhibits thereto, in connection with the Application for the Final Order; and |
d) | such further and other material as counsel may advise and this Court may permit. |
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February 26, 2020 | GOODMANS LLP | |
Barristers & Solicitors | ||
333 Bay Street, Suite 3400 | ||
Toronto, Canada M5H 2S7 | ||
Robert J. Chadwick LSO#: 35165K | ||
rchadwick@goodmans.ca | ||
Caroline Descours LSO#: 58251A | ||
cdescours@goodmans.ca | ||
Andrew Harmes LSO#: 73221A | ||
aharmes@goodmans.ca | ||
Tel: (416) 979-2211 | ||
Fax: (416) 979-1234 | ||
Lawyers for the Applicants |
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IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE |
Court File No.: CV-20-636938-00CL | |
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND SHERRITT 11722573 CANADA LTD. |
Applicants
ONTARIO SUPERIOR COURT OF JUSTICE- COMMERCIAL LIST
Proceeding commenced at Toronto | ||
NOTICE OF APPLICATION | ||
GOODMANS LLP Barristers & Solicitors 333 Bay Street, Suite 3400 Toronto, Canada M5H 2S7 | ||
Robert J. Chadwick LSO#: 35165K rchadwick@goodmans.ca | ||
Caroline Descours LSO#: 58251A cdescours@goodmans.ca | ||
Andrew Harmes LSO#: 73221A aharmes@goodmans.ca | ||
Tel: (416) 979-2211 Fax: (416) 979-1234 | ||
6962095 | Lawyers for the Applicants |
APPENDIX F
INTERIM ORDER
SEE ATTACHED
F-1
Court File No. CV-20-636938-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE MADAM |
) | WEDNESDAY, THE 26TH | ||
JUSTICE CONWAY |
) | DAY OF FEBRUARY, 2020 | ||
) |
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD., AND INVOLVING SHERRITT INTERNATIONAL OIL AND GAS LIMITED, SHERRITT INTERNATIONAL (BAHAMAS) INC., SHERRITT POWER (BAHAMAS) INC., SHERRITT INTERNATIONAL (CUBA) OIL AND GAS LIMITED, SHERRITT UTILITIES INC., CANADA NORTHWEST OILS (EUROPE) B.V., CNWL OIL (ESPANA) S.A., AND MADAGASCAR MINERAL INVESTMENTS LTD.
INTERIM ORDER
THIS MOTION made by Sherritt International Corporation (Sherritt or the Company) and 11722573 Canada Ltd. (together with Sherritt, the Applicants) for an interim order for advice and directions pursuant to Section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the CBCA) was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the Notice of Motion, the Notice of Application, the affidavit of Andrew Snowden sworn February 25, 2020 (the Snowden Affidavit), including the plan of arrangement (the Plan of Arrangement) substantially in the form attached as Appendix C to the Companys draft management information circular (the Information Circular) which is
attached as Exhibit A" to the Snowden Affidavit, and on hearing the submissions of counsel for the Applicants, and on being advised that the Director appointed under the CBCA (the Director) does not consider it necessary to appear.
Definitions
1. THIS COURT ORDERS that capitalized terms used and not specifically defined herein shall have the meanings ascribed to them in the Information Circular or the Plan of Arrangement, as applicable.
Service
2. THIS COURT ORDERS that the requirement for service of the Notice of Motion is hereby dispensed with and that this Motion is properly returnable today.
The Meetings
3. THIS COURT ORDERS that the Applicants are permitted to call, hold and conduct a separate meeting for each of (i) the Debtholders and (ii) the Shareholders, in each case to be held at the offices of Goodmans LLP, 333 Bay Street, Suite 3400, Toronto, Ontario, as follows:
a) | the meeting of the Debtholders as of the Record Date (as defined below) (the Debtholders Meeting) shall be held at 10:00 a.m. (Toronto time) on April 9, 2020, or such later date as may be determined by the Applicants, in order for the Debtholders to consider and, if determined advisable, pass a resolution authorizing, adopting and approving, with or without variation, the Arrangement and the Plan of Arrangement (the Debtholders Arrangement Resolution); and |
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b) | the meeting of the Shareholders as of the Record Date (the Shareholders Meeting, and together with the Debtholders Meeting, the Meetings) shall be held at 10:30 a.m. (Toronto time) on April 9, 2020, or such later date as may be determined by the Applicants, in order for the Shareholders to consider and, if determined advisable, pass a resolution authorizing, adopting and approving, with or without variation the Stated Capital Reduction (the Stated Capital Reduction Resolution, and together with the Debtholders Arrangement Resolution, the Resolutions). |
4. THIS COURT ORDERS that the Meetings shall be called, held and conducted in accordance with the CBCA, the rulings and directions of the Chair, this Interim Order and the applicable notices of the Meetings which accompany the Information Circular (the Notices of Meetings), subject to what may be provided hereafter (including, without limitation, paragraph 9 of this Interim Order) and subject to further order of this Court.
5. THIS COURT ORDERS that the record date (the Record Date) for determination of Debtholders and Shareholders entitled to notice of, and to vote at, the Meetings, shall be 5:00 p.m. (Toronto time) on the date that is set forth in the Applicants notice of record date published in The Globe and Mail, The National Post or other similar newspaper (the Record Date Notice), which Record Date shall be at least seven days following publication by (or on behalf of) the Applicants of the Record Date Notice.
6. THIS COURT ORDERS that the only persons entitled to attend or speak at the Debtholders Meeting shall be:
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a) | the Debtholders as of the Record Date, or their respective proxyholders, and their respective legal counsel; |
b) | the officers, directors, auditors and advisors of the Applicants; |
c) | the Existing Indenture Trustee and its legal counsel; |
d) | the Director; and |
e) | other persons who may receive the permission of the Chair of the Debtholders Meeting. |
7. THIS COURT ORDERS that the only persons entitled to attend or speak at the Shareholders Meeting shall be:
a) | the Shareholders as of the Record Date, or their respective proxyholders, and their respective legal counsel; |
b) | the officers, directors, auditors and advisors of the Applicants; |
c) | the Director; and |
d) | other persons who may receive the permission of the Chair of the Shareholders Meeting. |
8. THIS COURT ORDERS that the Applicants may transact such other business at the Meetings as is contemplated in the Information Circular, or as may otherwise be properly brought before the Meetings.
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Chair and Quorum
9. THIS COURT ORDERS that the Chair of each of the Meetings shall be determined by the Applicants and that quorum at each of the Debtholders Meeting and the Shareholders Meeting shall be satisfied if two or more persons entitled to vote at such Debtholders Meeting or Shareholders Meeting, respectively, are present, in person or represented by proxy, at the outset of such Debtholders Meeting or Shareholders Meeting, respectively.
Amendments to the Arrangement and Plan of Arrangement
10. THIS COURT ORDERS that the Applicants are authorized to make, subject to the terms of paragraph 11 below and the Plan of Arrangement, such amendments, modifications and/or supplements to the Arrangement and the Plan of Arrangement as they may determine without any additional notice to the Debtholders, or others entitled to receive notice under paragraph 15 hereof, and the Arrangement and Plan of Arrangement, as so amended, modified and/or supplemented shall be the Arrangement and Plan of Arrangement to be submitted to the Debtholders at the Debtholders Meeting and shall be the subject of the Debtholders Arrangement Resolution. Amendments, modifications and/or supplements to the Arrangement and Plan of Arrangement may be made following the Debtholders Meeting, but shall be subject to the terms of the Plan of Arrangement and, if appropriate, further direction by this Court at the hearing for the final order approving the Arrangement (the Final Order).
11. THIS COURT ORDERS that, if any amendments, modifications and/or supplements to the Arrangement or Plan of Arrangement prior to the Debtholders Meeting as referred to in paragraph 10 above, would, if disclosed, reasonably be expected to affect a Debtholders decision to vote for or against the Debtholders Arrangement Resolution, notice of such amendment,
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modification and/or supplement shall be distributed prior to the Debtholders Meeting by press release, newspaper advertisement, prepaid ordinary mail, e-mail or by the method most reasonably practicable in the circumstances, as the Applicants may determine, and that the Applicants shall provide notice of such amendment, modification and/or supplement to the Existing Indenture Trustee by the method most reasonably practicable in the circumstances as the Applicants may determine.
Amendments to the Information Circular
12. THIS COURT ORDERS that the Applicants are authorized to make such amendments, revisions and/or supplements to the draft Information Circular as they may determine and the Information Circular, as so amended, revised and/or supplemented, shall be the Information Circular to be distributed in accordance with paragraphs 15 and 21 hereof.
Adjournments and Postponements
13. THIS COURT ORDERS that the Applicants are authorized, if they deem advisable, to adjourn or postpone one or both of the Meetings on one or more occasions, without the necessity of first convening such Meetings or first obtaining any vote of the Debtholders or Shareholders, as applicable, respecting the adjournment or postponement, and notice of any such adjournment or postponement shall be given by such method as the Applicants may determine is appropriate in the circumstances. This provision shall not limit the authority of the Chair in respect of adjournments or postponements of the Meetings.
14. THIS COURT ORDERS that any adjournment or postponement of one or both of the Meetings shall not have the effect of modifying the Record Date for persons entitled to receive
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notice of or vote at such Meetings. At any subsequent reconvening of an adjourned or postponed Meeting, all proxies will be voted in the same manner as the proxies would have been voted at the original convened Meeting, except for any proxies that have been effectively revoked or withdrawn prior to the subsequent reconvening of such adjourned or postponed Meeting.
Notice of Debtholders Meeting and Debtholder Solicitation Process
15. THIS COURT ORDERS that, to effect notice of the Debtholders Meeting, the Applicants shall send the Information Circular (including the applicable Notice of Meeting, the Notice of Application and this Interim Order), as well as:
a) | for Noteholders, a Noteholder voting information and election form (including any electronic version thereof for use by its Intermediary (as defined below)) (the Noteholder VIEF) (collectively with the Information Circular, and together with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order, the Noteholder Meeting Package), which Noteholder VIEF shall provide instructions for how a beneficial Noteholder can instruct its Intermediary as to how to vote its Existing Notes at the Debtholders Meeting (the Noteholder Instructions); and |
b) | for CFA Lenders, a CFA Lender proxy, voting and election form (the CFA Lender Voting and Election Form) (collectively with the Information Circular, and together with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the Willis of this Interim Order, the CFA Lender Meeting Package, and together with the |
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Noteholder Meeting Package, the Debtholder Meeting Packages), which CFA Lender Voting and Election Form shall provide instructions for how a CFA Lender can instruct Sherritt (or its agents) as to how it wishes to vote its CFA Loans at the Debtholders Meeting and the CFA Lender Election (as defined below) it wishes to make (the CFA Lender Instructions), |
in each case to Kingsdale Advisors (the Proxy, Information and Exchange Agent) for distribution, as applicable, in accordance with this Interim Order. For the avoidance of doubt, all Debtholder Meeting Packages and all other communications or documents to be sent pursuant to this Interim Order shall be distributed by or on behalf of the Applicants.
16. THIS COURT ORDERS that, as soon as practicable after the Record Date, the Existing Indenture Trustee shall request, and promptly upon receipt shall provide, or cause to be provided, to the Applicants and the Proxy, Information and Exchange Agent a list (or lists) showing the names and addresses of all persons who are participants (each, an Intermediary) holding Existing Notes in the clearing, settlement and depository system operated by CDS (CDSX) and the principal amount of Existing Notes held by each Intermediary as of the Record Date (the Intermediaries Lists).
17. THIS COURT ORDERS that, upon receipt by the Proxy, Information and Exchange Agent of the Intermediaries Lists, the Proxy, Information and Exchange Agent shall send a Noteholder Meeting Package to CDS, whose nominee, CDS & Co., is the sole registered Noteholder of the Existing Notes, and shall, through the facilities of CDS, Broadridge Investor Communication Solutions, Canada, a subsidiary of Broadridge Financial Solutions, Inc. (Broadridge), and any other applicable proxy mailing service providers, provide, or cause to be
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provided, in a timely manner and in accordance with customary practices, one Noteholder Meeting Package to each beneficial Noteholder that has an account (directly or indirectly through an agent or custodian) with the Intermediaries.
18. THIS COURT ORDERS that concurrently with the mailing of the Noteholder Meeting Packages as contemplated in paragraph 17 above, CDS shall, in accordance with its customary procedures, cause to be delivered through the Intermediaries to each beneficial Noteholder information pertaining to an electronic version of the Noteholder VIEF through a CDS bulletin and establish a voluntary corporate action pursuant to CDSX or any other similar program which provides each beneficial Noteholder with the opportunity to submit its Noteholder Instructions.
19. THIS COURT ORDERS that each Intermediary shall take any and all reasonable action required to assist any beneficial Noteholder which has an account (directly or through an agent or custodian) with such Intermediary in returning to the Intermediary its Noteholder Instructions or such other documentation (or electronic instructions) as the Intermediary may customarily request from a beneficial Noteholder for purposes of enabling it to vote at the Debtholders Meeting and to deliver its Noteholder Instructions.
20. THIS COURT ORDERS that, as soon as practicable after receipt of the Debtholder Meeting Packages pursuant to paragraph 15 above, the Proxy, Information and Exchange Agent, or the Applicants, shall send, or cause to be sent, by pre-paid ordinary or first-class mail, recognized courier service, e-mail or such other means as the Applicants may determine are reasonable in the circumstances, as follows:
a) | a Noteholder Meeting Package to the Existing Indenture Trustee; and |
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b) | a CFA Lender Meeting Package to each CFA Lender at the address or other contact information in the books and records of the Company for the CFA Lenders, and Sherritt shall post electronic copies of the Noteholder Meeting Package on its website, all in accordance with this Interim Order. |
Notice of Shareholders Meeting and Proxy Solicitation Process
21. THIS COURT ORDERS that, in order to effect notice of the Shareholders Meeting, the Applicants shall send the Information Circular (including the applicable Notice of Meeting, the Notice of Application and this Interim Order) and the form of proxy, along with such amendments or additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (collectively, the Shareholder Meeting Packages), to:
a) | the registered Shareholders at the close of business on the Record Date, at least twenty-one (21) days prior to the date of the Shareholders Meeting, excluding the date of sending and the date of the Shareholders Meeting, by one or more of the following methods: |
i) | by pre-paid ordinary or first-class mail to the addresses of the Shareholders as they appear on the books and records of Sherritt, or its registrar and transfer agent, AST Trust Company (Canada) (the Transfer Agent), at the close of business on the Record Date and if no valid address is shown therein, then the last address of the person known to the Corporate Secretary of Sherritt; |
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ii) | by delivery, in person or by recognized courier service or inter-office mail, to the address specified in (i) above; or |
iii) | by facsimile or electronic transmission to any Shareholder, who is identified to the satisfaction of Sherritt, who requests such transmission in writing and, if required by Sherritt, who is prepared to pay the charges for such transmission; |
b) | the non-registered beneficial Shareholders by providing sufficient copies of the Shareholder Meeting Packages to Intermediaries (or their agents) in a timely manner, in accordance with National Instrument 54-101 of the Canadian Securities Administrators; and |
c) | the respective directors and auditors of the Applicants, and to the Director, by delivery in person, by recognized courier service, by pre-paid ordinary mail, first-class mail, facsimile or electronic transmission, at least twenty-one (21) days prior to the date of the Shareholders Meeting, |
and, for the avoidance of doubt, all Shareholder Meeting Packages and all other communications or documents to be sent pursuant to this Interim Order shall be distributed by or on behalf of the Applicants.
22. THIS COURT ORDERS that accidental failure or omission by the Applicants, the Proxy, Information and Exchange Agent, CDS, Broadridge, any other applicable proxy mailing service providers, the Intermediaries, the Existing Indenture Trustee or any other person referenced in this Interim Order to give notice of the Meetings or to distribute the Debtholder Meeting Packages or
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the Shareholder Meeting Packages to any person entitled by this Interim Order to receive notice or the applicable package, or any failure or omission to give such notice or deliver such package as a result of events beyond the reasonable control of the Applicants, or the non-receipt of such notice or non-delivery of such package shall not constitute a breach of this Interim Order nor shall it invalidate any resolution passed or proceedings taken at each of the Meetings. If any such failure or omission is brought to the attention of the Proxy, Information and Exchange Agent or the Applicants, the Proxy, Information and Exchange Agent and the Applicants shall use their reasonable best efforts to rectify it by the method and in the time most reasonably practicable in the circumstances.
23. THIS COURT ORDERS that in the event of a postal strike, lockout or event that prevents, delays, or otherwise interrupts mailing or delivery of the Debtholder Meeting Packages pursuant to paragraphs 15 to 20 of this Interim Order or the distribution of the Shareholder Meeting Packages pursuant to paragraph 21 of this Interim Order, the issuance of a press release containing the details of the date, time and place of the Meetings, steps that may be taken by Debtholders and Shareholders, as applicable, to deliver or transmit proxies or voting instructions, and advising that the Information Circular will be provided by electronic mail or by courier upon request made by a Debtholder or Shareholder, will be deemed good and sufficient service upon the Debtholders and Shareholders of the Debtholder Meeting Package and Shareholder Meeting Package, as applicable, and shall be deemed to satisfy the requirements of Section 135 of the CBCA.
24. THIS COURT ORDERS that distribution of the Debtholder Meeting Packages pursuant to paragraphs 15 to 20 of this Interim Order and the distribution of the Shareholder Meeting Packages pursuant to paragraph 21 of this Interim Order shall constitute notice of the Meetings and the Record Date and good and sufficient service of the within Application upon the persons
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described in paragraphs 15 to 21 and that those persons are bound by any orders made on the within Application. Further, no other form of service of the Debtholder Meeting Packages or the Shareholder Meeting Packages or any portion thereof need be made, or notice given or other material served in respect of these proceedings, the Meetings and/or the Record Date to such persons or to any other persons (whether pursuant to the CBCA or otherwise), except to the extent required by paragraph 11 above.
Amendments to the Meetings Packages
25. THIS COURT ORDERS that the Applicants are hereby authorized to make such amendments, revisions or supplements to the Debtholder Meeting Packages and/or Shareholder Meeting Packages as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (Additional Information), and that, subject to paragraph 11, notice of such Additional Information may be distributed by press release, CDS bulletins, newspaper advertisement, pre-paid ordinary mail or by such other method most reasonably practicable in the circumstances, as the Applicants may determine.
Noteholder Early Consent Consideration
26. THIS COURT ORDERS that in order for a beneficial Noteholder to be eligible to receive Noteholder Early Consent Consideration pursuant to the Plan of Arrangement, subject to the additional terms and conditions of the Plan of Arrangement:
a) | such beneficial Noteholder must submit to its Intermediary (or Intermediaries) on or prior to the Early Consent Date, or such earlier deadline as the Intermediary may advise, its Noteholder Instructions (and any other documentation or instructions as |
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the Intermediary may customarily request from a beneficial Noteholder for purposes of properly obtaining its voting and election instructions) to permit the Intermediary to duly complete and submit in a timely manner to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants), the beneficial Noteholders Noteholder Instructions by 5:00 p.m. (Toronto time) on the Early Consent Date (the Early Consent Deadline), and such Noteholder Instructions (and any other documentation or instructions as the Intermediary requests) must all instruct a vote in favour of the Debtholders Arrangement Resolution; |
b) | such beneficial Noteholder must not have withdrawn or changed its vote in favour of the Debtholders Arrangement Resolution prior to the Effective Date; and |
c) | the Intermediary must take such steps and/or actions as are necessary or required to complete and submit the beneficial Noteholders Noteholder Instructions as provided to the Intermediary in accordance with subparagraph (a) to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) prior to the Early Consent Deadline, |
and each such Intermediary shall verify the holdings of the Existing Notes as at the Early Consent Date of the beneficial Noteholders that submit their Noteholder Instructions in accordance with this paragraph 26 and shall submit such beneficial Noteholders Noteholder Instructions to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) by the Early Consent Deadline.
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CFA Lender Elections
27. THIS COURT ORDERS that each CFA Lender shall be required to indicate as part of its CFA Lender Instructions whether such CFA Lender wishes to make an Ambatovy Interests Exchange Election or an Amended CFA Loan Election (each a CFA Lender Election), which CFA Lender Instructions must be submitted to the Proxy, Information and Exchange Agent by the Voting Deadline pursuant to paragraph 29. If a CFA Lender does not make a CFA Lender Election as set out in the CFA Lender Voting and Election Form and pursuant to the terms of this Interim Order, such CFA Lender shall be deemed to have made an Amended CFA Loan Election and to be an Amended CFA Loan Electing CFA Lender under the Plan of Arrangement.
Voting by VIEFs, Voting Forms and Proxies
28. THIS COURT ORDERS that the Applicants are authorized to use the forms of proxy, voting forms and/or voting information and election forms, including the Noteholder VIEF and the CFA Lender Voting and Election Faun, along with such amendments and additional documents as the Applicants may determine are necessary or desirable and not inconsistent with the terms of this Interim Order (including any electronic versions thereof). The Applicants are authorized, at their expense, to solicit proxies, directly or through their officers, directors or employees, and through the Proxy, Information and Exchange Agent, National Bank Financial Inc., Broadridge and such other agents or representatives or soliciting dealers as the Applicants may retain for that purpose, and by mail or such other forms of personal or electronic communication as they may determine.
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29. THIS COURT ORDERS that if not otherwise cast in accordance with paragraph 26 above, in order to cast a vote at the Debtholders Meeting:
a) | beneficial Noteholders must submit to their respective Intermediary at or prior to 5:00 p.m. (Toronto time) on April 7, 2020, or such later date as may be agreed by the Applicants in the event that the applicable Meeting is postponed or adjourned (the Voting Deadline), or such earlier deadline as the Intermediary may advise the applicable beneficial Noteholder, its duly completed voting information and election form (or such other documentation or instructions as the Intermediary may customarily request from such beneficial Noteholder for purposes of properly obtaining their voting instructions); and |
b) | CFA Lenders must submit to the Proxy, Information and Exchange Agent at or prior to the Voting Deadline, its duly completed proxy, voting and election form (or such other documentation as the Proxy, Information and Exchange Agent may customarily request for purposes of properly obtaining their voting instructions). |
30. THIS COURT ORDERS that each Intermediary shall verify the holdings of Existing Notes of the beneficial Noteholders that submit their Noteholder Instructions to such Intermediary pursuant to paragraph 29 above, and shall submit such beneficial Noteholders instructions to CDS through CDSX (or such other method as may be accepted by the Proxy, Information and Exchange Agent and the Applicants) as soon as practicable following receipt of such beneficial Noteholders Noteholder Instructions.
31. THIS COURT ORDERS that any beneficial Noteholder or CFA Lender that wishes to attend the Debtholders Meeting in person or appoint another person as proxy (other than as
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contemplated by the Noteholder VIEF or the CFA Lender Voting and Election Form, as applicable) (each, an In-Person Debtholder) shall be required to contact the Proxy, Information and Exchange Agent and shall be required to complete separate documentation in accordance with the instructions provided by the Proxy, Information and Exchange Agent for purposes thereof.
32. THIS COURT ORDERS that in order to cast its vote at the Shareholders Meeting, the Shareholders must submit, or cause to be submitted, to the Transfer Agent by the Voting Deadline, their duly completed proxies in accordance with the instructions contained therein. The Transfer Agent shall provide the proxies received from Shareholders together with a summary thereof to the Proxy, Information and Exchange Agent as soon as practicable following the Voting Deadline.
33. THIS COURT ORDERS that Noteholders shall be entitled to revoke their Noteholder Instructions as follows:
a) | if revoking Noteholder Instructions instructing a vote in favour of the Debtholders Arrangement Resolution which was submitted prior to the Early Consent Deadline, then a revocation will be deemed to be made upon such beneficial Noteholder providing amended instructions to such beneficial Noteholders Intermediary at any time on or prior to the Early Consent Date, provided such Intermediary has then delivered such amended instructions to CDS in accordance with the process described in paragraph 26 prior to the Early Consent Deadline. For greater certainty, if a Noteholders vote in favour of the Debtholders Arrangement Resolution is submitted on or prior to the Early Consent Date, such Noteholder may not subsequently revoke such vote after the Early Consent Deadline has passed; and |
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b) | if revoking any other Noteholder Instructions, a revocation will be deemed to be made upon (i) in respect of a change in vote by a beneficial Noteholder, such beneficial Noteholder providing new instructions to its Intermediary at any time up to the Voting Deadline, which the Intermediary must then deliver to CDS in accordance with the process described in paragraph 30 prior to the Voting Deadline (or as soon as reasonably practicable thereafter); (ii) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a beneficial Noteholder, the Intermediary of such beneficial Noteholder providing a written statement indicating that such beneficial Noteholder wishes to have its voting instructions revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the applicable Meeting and which withdrawal shall be forwarded to the Applicants upon receipt; and (iii) in any other manner permitted by the Applicants, acting reasonably. |
34. THIS COURT ORDERS that CFA Lenders shall be entitled to revoke their CFA Lender Instructions and a revocation of the vote will be deemed to be made upon (a) in respect of a change in vote by a CFA Lender, such CFA Lender providing new instructions to the Proxy, Information and Exchange Agent at any time up to the Voting Deadline (or as soon as reasonably practicable thereafter); (b) in respect of a withdrawal of a vote (meaning a switch to no vote made and no action taken) by a CFA Lender, such CFA Lender providing a written statement indicating that it wishes to have its CFA Lender Instructions revoked, which written statement must be received by the Proxy, Information and Exchange Agent at any time up to the commencement of the applicable
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Meeting and which withdrawal shall be forwarded to the Applicants upon receipt; and (c) in any other manner permitted by the Applicants, acting reasonably.
35. THIS COURT ORDERS that registered Shareholders shall be entitled to revoke their proxies (i) in accordance with subsection 148(4) of the CBCA, or (ii) in any other manner permitted by law.
36. THIS COURT ORDERS that, notwithstanding paragraphs 27 and 32, the Applicants shall have the discretion to accept for voting purposes any duly completed proxy, voting form and/or voting information and election form, as applicable, submitted following the Voting Deadline but prior to the commencement of the applicable Meeting, and the Applicants are hereby authorized to use reasonable discretion as to the adequacy of compliance with respect to the manner in which any proxy, voting form and/or voting information and election form is completed and executed, or electronically submitted, and may waive strict compliance with the deadlines imposed in connection with the deposit or revocation of proxies, voting and/or election instructions, as applicable, if the Applicants deem it advisable to do so.
37. THIS COURT ORDERS that paragraphs 26 to 36 hereof, and the instructions contained in the proxies, voting forms or voting information and election forms, as applicable, shall govern the submission of the applicable proxy, voting form or voting information and election form.
Voting
38. THIS COURT ORDERS that the only persons entitled to vote in person or by proxy (i) on the Debtholders Arrangement Resolution, or such other business as may be properly brought before the Debtholders Meeting, shall be those Debtholders as at the Record Date, provided that
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beneficial Noteholders shall be deemed to transfer their rights to vote on the Debtholders Arrangement Resolution, attend the Debtholders Meeting and make the Noteholder Instructions associated with their Existing Notes upon any transfer of beneficial ownership of such Existing Notes to any transferee of such Existing Notes on or prior to the Voting Deadline or such earlier date as its Intermediary may advise, and (ii) on the Stated Capital Reduction Resolution, or such other business as may be properly brought before the Shareholders Meeting, shall be the Shareholders as at the Record Date. Subject to paragraph 36, illegible votes, spoiled votes, defective votes and abstentions in respect of any ballot(s) conducted at the applicable Meeting shall be deemed to be votes not cast. Proxies that are properly signed and dated but which do not contain voting instructions shall be voted in favour of the applicable Resolution.
39. THIS COURT ORDERS that votes shall be taken at the Debtholders Meeting in respect of the Debtholders Arrangement Resolution and any other items of business affecting the Applicants properly brought before such Meeting on the basis of one vote per $1,000 of principal amount of Existing Notes and/or CFA Loans held by the applicable Debtholder as at the Record Date.
40. THIS COURT ORDERS that for the purposes of determining the principal amount of CFA Loans entitled to vote at the Debtholders Meeting, the CFA Loans shall be converted to Canadian dollars based on the Bank of Canada daily U.S. dollar to Canadian dollar exchange rate in effect on the Record Date.
41. THIS COURT ORDERS that votes shall be taken at the Shareholders Meeting in respect of the Stated Capital Reduction Resolution and in respect of matters properly brought before the
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Shareholders Meeting on the basis of one vote per Common Share outstanding as at the Record Date.
42. THIS COURT ORDERS that in order for the Plan of Arrangement to be considered to have been approved at the Debtholders Meeting, subject to further Order of this Court, the Debtholders Arrangement Resolution must be passed, with or without variation, at the Debtholders Meeting by an affirmative vote of at least two-thirds (662⁄3%) of the votes cast in respect of the Debtholders Arrangement Resolution at the Debtholders Meeting in person or by proxy by the Debtholders. The vote set out above shall be sufficient to authorize the Applicants, the Proxy, Information and Exchange Agent and the Existing Indenture Trustee to do all such acts and things as may be necessary or desirable to give effect to the Arrangement and the Plan of Arrangement on a basis consistent with what is provided for in the Information Circular, as it may be amended, revised and/or supplemented pursuant to the terms of this Interim Order or further Order of the Court, without the necessity of any further approval by the Debtholders, subject only to final approval of the Arrangement by this Court and the satisfaction or waiver of the conditions to the Plan of Arrangement pursuant to its terms.
43. THIS COURT ORDERS that in order for the Stated Capital Reduction Resolution to be considered to have been approved at the Shareholders Meeting, subject to further Order of this Court, the Stated Capital Reduction Resolution must be passed, with or without variation, at the Shareholders Meeting by an affirmative vote of at least two-thirds (662⁄3%) of the votes cast in respect of the Stated Capital Reduction Resolution at the Shareholders Meeting in person or by proxy by the Shareholders.
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Hearing of Application for Approval of the Arrangement
44. THIS COURT ORDERS that following the Debtholders Meeting, the Applicants may apply to this Court for final approval of the Arrangement (the Final Order Application). For certainty, the Applicants shall not be required to hold the Shareholders Meeting in order to seek final approval of the Arrangement at the Final Order Application.
45. THIS COURT ORDERS that, promptly following the granting of this Interim Order, the Applicants shall issue a press release concerning the granting of the Interim Order and the anticipated Final Order Application.
46. THIS COURT ORDERS that (i) the distribution of the Notice of Application and the Interim Order in the Information Circular, when sent in accordance with paragraphs 15 to 20, and (ii) the additional actions described in paragraph 45 above, shall constitute good and sufficient service of the Notice of Application, this Interim Order and the Final Order Application on all interested persons and no other form of service need be effected and no other material need be served unless a Notice of Appearance is served in accordance with paragraph 47 below.
47. THIS COURT ORDERS that any Notice of Appearance served in response to the Notice of Application shall be served on the solicitors for the Applicants as soon as reasonably practicable, and, in any event, no less than four (4) days before the hearing of the Final Order Application at the following addresses:
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Goodmans LLP
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Attention: Robert J. Chadwick and Caroline Descours
Email: rchadwick@goodmans.ca / cdescours@goodmans.ca
48. THIS COURT ORDERS that, subject to further order of this Court, the only persons entitled to appear and be heard at the hearing of the within application shall be:
i) | the Applicants; |
ii) | the Director; |
iii) | the Debtholders; |
iv) | the Existing Indenture Trustee; |
v) | any person who has filed a Notice of Appearance herein in accordance with the Notice of Application, this Interim Order and the Rules of Civil Procedure; and |
vi) | their respective legal counsel. |
49. THIS COURT ORDERS that any materials to be filed by the Applicants in support of the Final Order Application may be filed up to one day prior to the hearing of the Final Order Application without further order of this Court.
50. THIS COURT ORDERS that in the event the Final Order Application does not proceed on the date set forth in the Notice of Application, and is adjourned, only those persons on the service list in this proceeding or who served and filed a Notice of Appearance in accordance with paragraph 47 shall be entitled to be given notice of the adjourned date.
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Stay of Proceedings
51. THIS COURT ORDERS that, from 12:01 a.m. (Toronto time) on the date of this Interim Order, until and including the earlier of the Effective Date and the date these CBCA proceedings are terminated, no right, remedy or proceeding, including, without limitation, any right to terminate, demand, accelerate, set off, amend, declare in default or take any other action under or in connection with any loan, note, commitment, contract or other agreement, at law or under contract, may be exercised, commenced or proceeded with against or in respect of any of the Sherritt Entities, or any of the present or future property, assets, rights or undertakings of the Sherritt Entities, of any nature in any location, whether held directly or indirectly by the Sherritt Entities by:
a) | any of the Noteholders or the Existing Indenture Trustee (or similar person in respect of the Existing Notes) in respect of any default or event of default under the Existing Notes, the Existing Notes Indenture or any other Existing Note Documents (including, without limitation, the non-payment of interest and/or any other amounts due and payable in respect of the Notes); |
b) | any of the CFA Lenders in respect of any default or event of default under the CFA Loans, the CFA Loan Agreements or any other CFA Loan Documents (including, without limitation, the non-payment of interest and/or any other amounts due and payable in respect of the CFA Loans); or |
c) | any other person party to or a beneficiary of any other loan, note, commitment, contract or other agreement with one or more of the Sherritt Entities, by reason or as a result of: |
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i) | any of the Applicants having made an application to this Court pursuant to Section 192 of the CBCA; |
ii) | any of the Applicants or the Guarantors being a party to or involved in this proceeding, any ancillary proceedings or the Arrangement; |
iii) | the provisions of this Interim Order or any other order in these proceedings or any ancillary proceedings; |
iv) | the Arrangement or any of the steps, transactions or proceedings contemplated thereby or relating thereto, however or whenever taken; or |
v) | any default or cross-default arising under any agreement to which any Sherritt Entity is a party as a result of any default or event of default under the Existing Note Documents, the CFA Loan Documents or any other circumstance listed above, |
in each case except with the prior written consent of the Applicants or leave of this Court, provided that this paragraph 51 shall not apply to the Revolving Bank Facility Lenders or the Revolving Bank Facility Administrative Agent.
Stay Comeback Hearing
52. THIS COURT ORDERS that any interested party that wishes to amend or vary paragraph 51 of this Interim Order shall be entitled to bring a motion before this Court on seven business days notice to the Applicants and any other party or parties likely to be affected by the order to be sought by such interested party.
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Existing Indenture Trustee
53. THIS COURT ORDERS that the Existing Indenture Trustee is authorized and directed to take all such actions as set out in this Interim Order and the Existing Indenture Trustee shall incur no liability as a result of carrying out the provisions of this Interim Order and the taking of all actions incidental hereto, save and except for any gross negligence or wilful misconduct on its part.
Variance
54. THIS COURT ORDERS that the Applicants shall be entitled to seek leave to vary this Interim Order upon such terms and upon the giving of such notice as this Court may direct.
Precedence
55. THIS COURT ORDERS that, to the extent of any inconsistency or discrepancy between this Interim Order and the terms of any instrument creating, governing or collateral to the Existing Notes or the CFA Loans, the Information Circular, the provisions of the CBCA or any of the articles or by-laws of the Applicants, this Interim Order shall govern.
E-Service Protocol
56. THIS COURT ORDERS that the E-Service Guide of the Commercial List (the Guide) is approved and adopted by reference herein and, in this proceeding, the service of documents made in accordance with the Guide (which can be found on the Commercial List website at http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/eservice-commercial/) shall be valid and effective service. Subject to Rule 17.05, this Interim Order shall constitute an order
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for substituted service pursuant to Rule 16.04 of the Rules of Civil Procedure. Subject to Rule 3.01(d) of the Rules of Civil Procedure and paragraph 13 of the Guide, service of documents in accordance with the Guide will be effective on transmission.
57. THIS COURT ORDERS that if the service or distribution of documents in accordance with the Guide is not practicable, the Applicants are at liberty to serve or distribute this Interim Order, any other materials and orders in these proceedings, any notices or other correspondence, by forwarding true copies thereof by prepaid ordinary mail, courier, personal delivery or facsimile transmission to interested parties at their respective addresses as last shown on the records of the Applicants and that any such service or distribution by courier, personal delivery or facsimile transmission shall be deemed to be received on the next business day following the date of forwarding thereof, or if sent by ordinary mail, on the third business day after mailing.
58. THIS COURT ORDERS that the Applicants and their respective counsel are at liberty to serve or distribute this Interim Order, any other materials and orders as may be reasonably required in these proceedings, including any notices, or other correspondence, by forwarding true copies thereof by electronic message to interested parties and their advisors, as applicable. For greater certainty, any such distribution or service shall be deemed to be in satisfaction of a legal or juridical obligation, and notice requirements within the meaning of clause 3(c) of the Electronic Commerce Protection Regulations, Reg. 81000-2-175 (SORJDORS).
Foreign Proceeding
59. THIS COURT ORDERS that the Applicants or either of them are hereby authorized and empowered, but not required, to act as the foreign representative (the Foreign Representative)
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in respect of the within proceedings for the purpose of having these proceedings recognized and approved in a jurisdiction outside of Canada.
60. THIS COURT ORDERS that the Foreign Representative is hereby authorized to apply for foreign recognition and approval of these proceedings, as necessary, in any jurisdiction outside of Canada.
Extra-Territorial Assistance
61. THIS COURT seeks and requests the aid and recognition of any court or any judicial, regulatory or administrative body in any province of Canada and any judicial, regulatory or administrative tribunal or other court constituted pursuant to the Parliament of Canada or the legislature of any province and any court or any judicial, regulatory or administrative body any other country to act in aid of and to assist this Court in carrying out the terms of this Interim Order.
/s/ Justice Conway |
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IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE |
Court File No. CV-20-636938-00CL | |
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 11722573 CANADA LTD. |
ONTARIO SUPERIOR COURT OF JUSTICE- COMMERCIAL LIST
Proceeding commenced at Toronto | ||
INTERIM ORDER | ||
GOODMANS LLP Barristers & Solicitors 333 Bay Street, Suite 3400 Toronto, Canada M5H 2S7 | ||
Robert J. Chadwick LSO#: 35165K rchadwick@goodmans.ca | ||
Caroline Descours LSO#: 58251A cdescours@goodmans.ca | ||
Andrew Harmes LSO#: 73221A aharmes@goodmans.ca | ||
Tel: (416) 979-2211 Fax: (416) 979-1234 | ||
7033547 | Lawyers for the Applicants |
APPENDIX G
PARADIGM CAPITAL OPINIONS
SEE ATTACHED
G-1
February 25, 2020
Board of Directors
Sherritt International Corporation
22 Adelaide Street West, Suite 4220
Toronto, Ontario
M5H 4E3
To the Board of Directors:
Paradigm Capital Inc. (Paradigm Capital, we or us) understands that Sherritt International Corporation (Sherritt or the Company) and certain subsidiaries intend to pursue a recapitalization transaction to be implemented by way of a plan of arrangement (the Arrangement) under Section 192 of the Canada Business Corporations Act (the CBCA).
Paradigm Capital understands that the Arrangement provides for, among other things, the following terms:
Notes Terms
| The Companys currently outstanding unsecured notes with an aggregate principal amount of $588 million and maturity dates of November 15, 2021, September 24, 2023, and October 11, 2025 (the Existing Notes, and the holders of the Existing Notes the Noteholders) will be exchanged for new second lien notes of Sherritt in an aggregate principal amount equal to (i) 50% of the aggregate principal amount of the Existing Notes, plus (ii) the amount of accrued and unpaid interest owing to the Noteholders up to the implementation of the Arrangement (the Effective Date), with a maturity date of April 30, 2027 (the New Second Lien Notes); |
| The New Second Lien Notes will have an interest rate of 8.500% per annum, which will be payable semi-annually in arrears on April 30 and October 30 of each year, commencing on October 30, 2020; |
| The New Second Lien Notes will be secured by the material personal property and assets of the Company and each of the new note guarantors pursuant to collateral documents in substantially the same form as those provided in favour of the agent for the benefit of itself and the lenders under the Companys revolving bank facility (the Revolving Facility); and |
| Noteholders that vote in favour of the Arrangement by 5:00 pm on the early consent date of March 27, 2020, as such deadline may be extended by Sherritt, will be entitled to receive a cash payment in an amount equal to 3% of the principal amount of Existing Notes voted in favour of the Arrangement by the early consent deadline as additional consideration in exchange for their Existing Notes. |
CFA Loans Terms
| The holders of the partner loans relating to the Ambatovy joint venture project (the CFA Loans) (the CFA Lenders, and together with the Noteholders, the Debtholders) shall be entitled to elect to receive on the Effective Date either: |
a) | Such CFA Lenders pro rata share of the Companys interests in the Ambatovy joint venture, including its 12% ownership stake and its pro rata share of the subordinated loans; or |
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b) | Amended CFA Loans (the Amended CFA Loans) in a principal amount equal to the amounts outstanding under such CFA Lenders existing CFA Loans, which Amended CFA Loans will be obligations solely of Madagascar Mineral Investments Ltd. and have no recourse to Sherritt, and where such CFA Lender shall have the right to exchange its Amended CFA Loan for a pro rata share of the Companys interests in the Ambatovy joint venture in the 12-month period following the Effective Date. |
| If a CFA Lender does not make an election as described above, such CFA Lender shall be deemed to have elected to receive an Amended CFA Loan in exchange for its existing CFA Loan. |
Other Terms
| The lenders of the Revolving Facility have entered into an agreement to (i) waive certain potential events of default resulting from the Arrangement, and (ii) amend the Revolving Facility to allow for the implementation of the Arrangement; and |
| The Company will reduce the stated capital account of its common shares to $575 million (the Stated Capital Reduction). |
Paradigm Capital understands that in order for the Arrangement to be approved, the Debtholders Arrangement resolution must be approved by the affirmative vote of at least 66 2/3% of the votes cast by the Debtholders present in person or by proxy at the Debtholders meeting. The Stated Capital Reduction must be approved by the affirmative vote of at least 66 2/3% of the votes cast by the holders of the Companys common shares (the Shareholders) present in person or by proxy at the Shareholders meeting.
Paradigm Capital further understands that: (i) the Arrangement will be subject to the requisite approval by the Ontario Superior Court of Justice (the Court); and (ii) the material terms of the Arrangement are described in the Arrangement and will be described in an information circular of the Company (the Circular), which will be mailed to, among others, Debtholders and Shareholders.
Unless otherwise noted, all dollar values stated in these Opinions are denominated in Canadian dollars.
Engagement of Paradigm Capital
Pursuant to an engagement letter (the Engagement Agreement) dated September 4, 2019, Paradigm Capital was formally engaged as an independent financial advisor to the Company and its Board in connection with the Arrangement, and to prepare and deliver to the Board opinions in accordance with the applicable legal and regulatory requirements for the Arrangement including, without limitation, as contemplated under Section 192 of the CBCA. Paradigm Capital was asked by the Company to provide to the Board: (i) an opinion (the CBCA Opinion) as to whether the Noteholders and the CFA Lenders, respectively, would be in a better position, from a financial point of view, under the Arrangement, than if the Company were liquidated; and an opinion (the Fairness Opinion and, together with the CBCA Opinion, the Opinions) as to the fairness of the Arrangement, from a financial point of view, to the Company.
The Engagement Agreement provides for a fixed flat fee for providing the Opinions and Paradigm Capital is not entitled to any additional fees related to the completion of the Arrangement. In addition, Paradigm Capital is to be reimbursed for its reasonable out-of-pocket expenses, including fees paid to its legal counsel in respect of advice rendered to Paradigm Capital in carrying out its obligations under the Engagement Agreement, and is to be indemnified by the Company in respect of certain liabilities that might arise out of Paradigm Capitals engagement.
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Paradigm Capital acknowledges and consents that the Opinions and the descriptions of the services rendered by Paradigm Capital under the Engagement Agreement may be filed with the Court as part of an affidavit and with securities commissions or similar regulatory authorities and will be disclosed (or summarized in a form acceptable to Paradigm Capital, acting reasonably) in press releases, information circulars and publicly filed documents by the Company. Additionally, for greater certainty, Paradigm Capital consents to the complete text of the Opinions being included as part of the affidavit and information circular filed with any court, securities commission, stock exchange or other regulatory authority in connection with the Arrangement.
Paradigm Capital has not provided an opinion as to any matter not specifically addressed in the Opinions. In particular, Paradigm Capital has not provided: (i) an opinion as to the relative fairness of the Arrangement among or between the Noteholders or the CFA Lenders; (ii) an opinion as to the fairness of the Arrangement, from a financial point of view, to the Shareholders and/or the holders of any other securities of, or claims against, the Company (including, without limitation, holders of options, restricted share units, deferred share units, warrants, equity claims and similar instruments or claims); (iii) an opinion as to the manner in which the classes of securities holders were constructed; (iv) an opinion as to the fairness of the process underlying the Arrangement; (v) an opinion as to the fairness of the Arrangement, from a financial point of view, to the Noteholders and/or CFA Lenders; (vi) a formal valuation or appraisal of the Company or any of its securities or assets or the securities or assets of the Companys associates or affiliates (nor have we been provided with any such valuation); (vii) an opinion concerning the future trading price of any of the securities of the Company; (viii) an opinion as to the ability of the Company after the implementation of the Arrangement to repay or refinance the principal amount of its indebtedness; (ix) a recommendation to any Noteholders or CFA Lenders as to whether or not the Existing Notes or CFA Loans should be held, or sold or to use the voting rights provided in respect of the Arrangement to vote for or against the Arrangement or to vote for or against certain steps necessary to implement the Arrangement; or (x) an opinion of the merits of entering into the Arrangement or any alternative business strategy; and the Opinions should not be construed as such. The Opinions are not intended to be and do not constitute a recommendation to the Board as to whether it should approve the Arrangement.
Paradigm Capital also notes that the Company acknowledges that there are feasible alternatives to this Arrangement, and that there has been no process to solicit the support of the Noteholders, nor any record or measure of their support.
Credentials and Independence of Paradigm Capital
Paradigm Capital is an independent Canadian investment banking firm with a sales, trading, research and corporate finance focus, providing services for institutional investors and corporations. Paradigm Capital was founded in 1999 and is a member of the Toronto Stock Exchange, the TSX Venture Exchange and the Investment Industry Regulatory Organization of Canada (IIROC). Paradigm Capital has extensive advisory, valuation, merger & acquisition and corporate governance experience.
The Opinions expressed herein represent those of Paradigm Capital and the form and content hereof has been approved for release by a committee of directors and other professionals of Paradigm Capital, each of whom is experienced in mergers, acquisitions, business combinations, divestitures, valuation and fairness opinion matters.
Except as described below, none of Paradigm Capital, its associates or affiliates, is an insider, associate or affiliate (as those terms are defined in the Securities Act (Ontario)) of the Company. Paradigm Capital is not an advisor to any person or company other than to the Company with respect to the Arrangement.
Paradigm Capital is currently engaged as an advisor for the Company on a strategic assignment unrelated to the Arrangement. Paradigm Capital, the Company and the Board agree that the
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aforementioned strategic advisory engagement does not affect Paradigm Capitals independence or its ability to provide the Opinions.
Paradigm Capital acknowledges that John Warwick, a former investment banker at Paradigm Capital and a current special advisor to and shareholder of Paradigm Capital, is currently a member of the Board. Paradigm Capital, the Board, and the Company agree that this relationship does not affect Paradigm Capitals independence or its ability to provide the Opinions.
Paradigm Capital may, in the ordinary course of its business, provide financial advisory or investment banking services to Sherritt from time to time. Additionally, in the ordinary course of its business, Paradigm Capital may actively trade common shares and other securities of Sherritt for its own account and for its client accounts, and, accordingly, may at any time hold a long or short position in such securities. As an investment dealer, Paradigm Capital conducts research on securities and may, in the ordinary course of its business, provide research reports and investment advice to its clients on investment matters, including with respect to Sherritt or the Arrangement, when disclosed.
Scope of the Review
In connection with the Arrangement, Paradigm Capital has reviewed and relied upon and in some cases carried out, among other things, the following:
a) | Drafts of the plan of arrangement; |
b) | Drafts of the description of the New Second Lien Notes; |
c) | Sherritts annual information forms for the years ended December 31, 2018 and December 31, 2017; |
d) | Sherritts audited annual consolidated financial statements and managements discussion and analysis for the years ended December 31, 2018 and 2017; |
e) | Sherritts quarterly consolidated financial statements and managements discussion and analysis for the quarters ended September 30, 2019, June 30, 2019, and March 31, 2019; and draft internal balance sheet figures as of December 31, 2019 provided by the management of Sherritt; |
f) | Press releases and material change reports issued by Sherritt during the 12-month period ended February 24, 2020; |
g) | Carry finance agreements dated March 26, 2008, and subsequent amended and restated agreements; |
h) | Indenture for the Existing Notes dated November 2, 2011, and subsequent supplemental indentures; |
i) | Various independent and institutional equity research reports on Sherritt and other publicly traded peer companies; |
j) | Credit rating reports on Sherritt; |
k) | Liquidation analysis provided by management of Sherritt; |
l) | Internal financial forecasts provided by management of Sherritt; |
m) | Precedent transaction disclosure; |
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n) | Comparable company disclosure; |
o) | Certain internal financial information and other non-public documents requested by Paradigm Capital and provided by management of Sherritt; |
p) | Drafts of the press release for the announcement of the proposed Arrangement; |
q) | Drafts of the Circular; |
r) | Drafts of the affidavit of Andrew Snowden with respect to the Arrangement; |
s) | Discussions with the Companys management team, Goodmans LLP, the Companys legal counsel, and National Bank Financial, Inc.; and |
t) | The certificate of representation (the Certificate) signed by the CEO and CFO of Sherritt dated February 25, 2020. |
Paradigm Capital has not, to the best of its knowledge, been denied access by Sherritt to any information requested. Paradigm Capital did not meet with the auditors of Sherritt and has assumed the accuracy and fair presentation of the audited consolidated financial statements of Sherritt and the reports of the auditors thereon.
Assumptions and Limitations
Paradigm Capital has relied upon, without independent verification, all financial and other information that was obtained by us from public sources or that was provided to us by Sherritt and its affiliates, associates, advisors or otherwise. We have assumed that this information was complete and accurate as of the date thereof, and no necessary or material facts were omitted that may make the information misleading. In accordance with the terms of our engagement, but subject to the exercise of our professional judgment, we have not conducted any independent investigation to verify the completeness or accuracy of such information. The Opinions are conditional upon such completeness and accuracy.
Paradigm Capital has also assumed that (i) all the draft documents referred to under Scope of Review above are accurate versions, in all material respects, of the final form of such documents; and (ii) the draft documents referred to under Scope of Review describe all material terms of agreements that relate to the Arrangement that are to be drafted subsequently.
With respect to the financial forecasts and budgets provided to us and used in our analysis, we have assumed that they have been prepared using the best currently available estimates and reasonable judgments of management of Sherritt as to the matters covered thereby.
The Chief Executive Officer and the Chief Financial Officer of Sherritt have represented to us in the Certificate, among other things, that (i) the information provided to Paradigm Capital, directly or indirectly, orally or in writing, by the Company or any of its subsidiaries, Goodmans LLP, and National Bank Financial, Inc. for purposes of the Engagement Letter, including in relation to the preparation of the Opinions (the Information), was, at the date the information was provided to Paradigm Capital, fairly and reasonably presented and complete, true and correct in all material respects, and did not, and does not, contain any untrue statement of a material fact in respect of the Company and its subsidiaries, associates, or affiliates or their respective securities or omit to state a material fact in respect of the Company and its subsidiaries, associates or affiliates or their respective securities necessary to make the information not misleading in light of the circumstances under which the Information was made or provided; (ii) any analyses, business plans, forecasts, projections, estimates and budgets provided to
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Paradigm Capital, including without limitation managements liquidation analysis of the Companys assets (Managements Liquidation Analysis) were prepared using the assumptions identified therein and were reasonably prepared on bases reflecting the best currently available estimates and judgments of management of the Company and its subsidiaries, associates and affiliates as to the matters covered thereby and such analyses, business plans, forecasts, projections, estimates and budgets reasonably represent the views of management of the Company and its financial prospects and forecasted performance of the Company and its subsidiaries, associates and affiliates (and in the case of Managements Liquidation Analysis, reasonably represent the views of managements expected recoveries in a liquidation) and are consistent with historical operating experience and accounting policies and procedures applied by the Company; (iii) since the dates on which the Information was provided to Paradigm Capital, there have not been any material changes or new material facts, financial or otherwise, relating to the business or affairs of the Company or any of its subsidiaries, associates or affiliates or any change in any material fact or in any material element of any of the information or new material fact, which is of a nature as to render any portion of the information untrue or misleading in any material respect, except for changes that have been updated by more current Information provided in writing to Paradigm Capital; (iv) there are no independent appraisals or valuations or material non-independent appraisals or valuations available to the Company relating to the Company or any of its subsidiaries, associates or affiliates or any of their respective material assets or liabilities which have been prepared as of a date within the two years preceding the date hereof and which have not been provided in writing to Paradigm Capital; (v) since the dates on which the Information was provided to Paradigm Capital, no material transaction has been entered into by the Company or any of its subsidiaries, associates or affiliates; (vi) other than as disclosed in the Information, to the best of their knowledge, information and belief after reasonable inquiry, the Company does not have any material contingent liabilities and there are no actions, suits, proceedings or inquiries pending or threatened in writing against or affecting the Company or any of its subsidiaries, associates or affiliates at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, bureau, board agency or instrumentality which may in any way materially adversely affect the Company and its subsidiaries, associates or affiliates taken as a whole; (vii) there are no agreements, undertakings, commitments or understandings (written or oral, formal or informal) relating to the Arrangement, except as have been disclosed in writing to Paradigm Capital; and (viii) the contents of the disclosure documents prepared in connection with the Arrangement will be true and correct in all material respects and do not contain any misrepresentation (as such term is defined in the Securities Act (Ontario)) and such disclosure documents will comply with applicable laws in all material respects.
The Opinions are based on the securities markets, economic, financial and general business conditions prevailing as of the date of the Opinions and the conditions and prospects, financial and otherwise, of Sherritt as they were reflected in the information reviewed by us. In its analysis and in preparing the Opinions, Paradigm Capital has made a number of assumptions with respect to commodity prices, industry performance, general business and economic conditions, and other matters, many of which are beyond the control of Paradigm Capital, Sherritt and any other party involved in the Arrangement.
Paradigm Capital has also assumed that: (i) the final terms of the Arrangement will be fully complied with and will be substantially the same as those described by Sherritts senior officers to Paradigm Capital and those contained in the Draft Plan of Arrangement provided to Paradigm Capital; (iii the Circular will contain true, full and plain disclosure of the Arrangement; and (iii) all material governmental, regulatory or other required consents and approvals necessary for the consummation of the Arrangement will be obtained without any material adverse effect on Sherritt.
The Opinions are given as of the date hereof and Paradigm Capital disclaims any undertaking or obligation to advise any person of any change in any fact or matter affecting these Opinions which may come or be brought to Paradigm Capitals attention after such date. The Opinions are limited to Paradigm Capitals understanding of the Arrangement as of the date hereof and Paradigm Capital assumes no
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obligation to update this Opinion to take into account any changes regarding the Arrangement after such date. Without limiting the foregoing, in the event that there is any material change in any fact or matter affecting an Opinion after the date hereof, Paradigm Capital reserves the right to change, modify or withdraw the Opinion.
The Opinions have been provided solely for the use of the Board and, other than as contemplated herein, may not be used or relied upon by any other person without the express written consent of Paradigm Capital. Except for the inclusion of the Opinions in their entirety and a summary thereof (in a form acceptable to us) in the Circular, the Companys press release announcing the Arrangement, and the court materials filed by the Company in connection with the Arrangement, the Opinions are not to be reproduced, disseminated, quoted from or referred to (in whole or in part) without our prior written consent.
Paradigm Capital is not a legal, tax, or accounting expert and expresses no opinion concerning any legal, tax, or accounting matters concerning the Arrangement or the sufficiency of the Opinion for the Boards purposes.
Sherritt Overview
Sherritt (TSX:S) is principally focused on the production and sale of commodities, and power generation, with operations located primarily in Canada, Cuba, Bahamas, Madagascar, and Spain. Its core businesses include: the mining and refining of lateritic nickel and cobalt in Canada, Cuba, and Madagascar; the exploration and production of oil and gas in Cuba; and the operation of energy production facilities in Cuba. In addition, Sherritt has a wholly-owned fertilizer business and sulphuric acid, utilities, and fertilizer storage facilities in Fort Saskatchewan, Alberta. The Company also has a technology group that provides technical support to Sherritts operating divisions and evaluates and develops process technologies for natural resource-based industries. Sherritt was incorporated in 1995 and is headquartered in Toronto, Ontario. The Companys head office is located at 22 Adelaide Street West, Suite 4220, Toronto, Ontario, M5H 4E3.
Fairness Methodology
The Opinions have been prepared based on techniques that Paradigm Capital considers appropriate in the circumstances, after considering all relevant facts and taking into account Paradigm Capitals assumptions, in order to form its Opinions.
CBCA Opinion Terms of Reference
Innovation, Science and Economic Development Canadas Policy Statement 15.1 Policy Concerning Arrangements Under Section 192 of the CBCA dated January 4th, 2011 provides certain guidelines regarding opinions to be obtained from a financial advisor where a corporation seeks to implement a plan of arrangement pursuant to Section 192 of the CBCA. In that context, the Company has asked Paradigm Capital to provide the CBCA Opinion.
CBCA Opinion Considerations
For the purposes of the CBCA Opinion, Paradigm Capital considered that the Noteholders would be in a better financial position under the Arrangement than if the Company were liquidated, if the estimated aggregate value of the consideration made available to the Noteholders pursuant to the Arrangement exceeds or equals the estimated value of the consideration the Noteholders would receive in a liquidation. Paradigm Capital also considered that the CFA Lenders would be in a better financial position under the Arrangement than if the Company were liquidated, if the estimated aggregate value of the consideration
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made available to CFA Lenders pursuant to the Arrangement exceeds or equals the estimated value of the consideration the CFA Lenders would receive in a liquidation.
In preparing the CBCA Opinion, Paradigm Capital reviewed and performed the following analyses:
| Paradigm Capital reviewed and analyzed the Companys managements estimated ranges of recoveries for the various assets of Sherritt in a liquidation process; |
| In considering fairness of the Arrangement to the Noteholders, as compared to a Company liquidation, Paradigm Capital compared the terms of the New Second Lien Notes to similar bonds issued by similar profile companies in order to determine the estimated value of the New Second Lien Notes; and |
| In considering fairness of the Arrangement to the CFA Lenders and the Noteholders, as compared to a Company liquidation, Paradigm Capital considered the value of the Companys interests in the Ambatovy joint venture project in a liquidation process, and any claim on residual value at Sherritt. |
In preparing the CBCA Opinion, Paradigm Capital has also considered, among other things, the following matters:
| In a liquidation process, prospective buyers will be aware that the seller is compelled to sell its assets. This may have a negative impact on the value realized; |
| A liquidation process is likely to have a negative impact on the value of the Companys business as customers, suppliers, creditors and employees react to protect or enhance their interests; |
| A liquidation process would give rise to significant incremental costs, including senior secured debtor in possession financing, and additional legal and financial advisory costs to implement the liquidation process and address the associated legal proceedings. These costs would reduce the Companys value or would be recovered out of sale proceeds that would otherwise be available to the Noteholders and CFA Lenders; |
| The complex ownership and operating structures of the Companys Cuban operations, and the fact that the Cuban Government is both customer and partner in many of the operations, are factors that would likely significantly reduce the field of prospective bidders and constrain the bidding of participants in a liquidation process; |
| The potential to recover approximately US$159.6 million of current receivables from the Cuban Government would be significantly impaired in a liquidation compared to the potential recovery under the payment plan outlined in the current receivables agreement; and |
| In a liquidation process it is difficult to predict what stipulations or approvals would be required by the Cuban government for such process and what their impact would be on the ability to generate sale proceeds for distribution to stakeholders. |
CBCA Opinion Conclusion
Based upon and subject to the foregoing, Paradigm Capital is of the opinion that, as of the date hereof, the Noteholders and the CFA Lenders, respectively, would be in a better position, from a financial point of view, under the Arrangement than if the Company was liquidated.
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Fairness Opinion Considerations
In preparing the Fairness Opinion, Paradigm Capital considered that the Arrangement would be fair, from a financial point of view, to the Company, if the Arrangement:
| provides the Company with an improved capital structure, by reducing the total amount of debt outstanding and the interest expense cost associated with that debt; and |
| reduces the risk that the Companys cash flow from operations and available liquidity would be insufficient to provide adequate funds to finance the operating and capital expenditures necessary to execute its operating strategy and repay its debt as it comes due. |
In arriving at the Fairness Opinion, Paradigm Capital considered, among other things, the following matters:
| The Arrangement would result in a reduction of debt by approximately $414 million, substantially reducing the Companys outstanding debt; |
| The Arrangement would substantially reduce the Companys annual interest payments by approximately $19 million; |
| The Arrangement would not affect any of the Companys contractual relationships with its trade vendors or any amounts owing to them; hence, would not result in any disruption to the Companys ongoing operations; |
| The Arrangement would materially improve the Companys ability to generate cash flow, ability to manage periods of weaker commodity prices, and financial flexibility; |
| The Company may forfeit its interests in the Ambatovy joint venture project to provide the consideration for the CFA Lenders under the Arrangement; and |
| The Company has the opportunity, at this time, to effect the Arrangement with the approval of the Noteholders and the CFA Lenders in accordance with applicable law. |
Fairness Opinion Conclusion
Based upon and subject to the foregoing, Paradigm Capital is of the Opinion that the Arrangement is fair, from a financial point of view, to the Company.
Yours very truly, |
(signed) Paradigm Capital Inc. |
PARADIGM CAPITAL INC. |
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APPENDIX H
DESCRIPTION OF NOTES
SEE ATTACHED
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DESCRIPTION OF NOTES
This description of Notes is intended to be a useful overview of the material provisions of the Notes and the Indenture. Since this is only a summary, it does not contain all of the details that will be found in the full text of, and is qualified in its entirety by the provisions of, the Notes and the Indenture, which will contain a complete description of the obligations of the Corporation and the Guarantors and your rights. Copies of the Indenture in substantially final form will be made available for review under the Corporations profile on SEDAR at www.sedar.com. The Corporation will issue a press release once the Indenture has been posted for viewing. Following the Issue Date, you may request copies of the Notes and the Indenture at our address at Bay Adelaide Centre, East Tower, 22 Adelaide Street West, Suite 4220, Toronto, Ontario, Canada M5H 4E3.
You will find the definitions of capitalized terms used in this description under the heading Certain Definitions. For purposes of this description, references to the Corporation, we, our and us refer only to Sherritt International Corporation and not to its Subsidiaries. Certain defined terms used in this description but not defined herein have the meanings assigned to them in the Indenture. References to $ are to Canadian dollars. The Notes will be denominated in Canadian dollars, and all payments on the Notes will be made in Canadian dollars.
The Indenture will be subject to the provisions of the U.S. Trust Indenture Act of 1939, as amended (the U.S. Trust Indenture Act) and the terms of the Notes and the Indenture will include, or be deemed to include, those required by the U.S. Trust Indenture Act. The Indenture will be qualified under the U.S. Trust Indenture Act pursuant to an application on Form T-3 to be filed with the U.S. Securities and Exchange Commission by the Corporation and the Guarantors. The Indenture Trustee will be qualified under the U.S. Trust Indenture Act pursuant to an application on Form T-6 included in the application on Form T-3.
The Holder of a Note will be treated as such Notes owner for all purposes. Only Holders will have rights under the Indenture.
General
The Notes will:
| be senior secured obligations of the Corporation; |
| be initially issued in an aggregate principal amount equal to (i) approximately $294 million plus (ii) the amount of all accrued and unpaid interest on the Existing Notes (as defined in the Circular) up to but not including the Issue Date; |
| be unconditionally guaranteed on a senior secured basis by each of the Corporations Wholly-Owned Restricted Subsidiaries that are not Immaterial Subsidiaries. See Note Guarantees; |
| mature on April 30, 2027; |
| be issued in denominations of $1,000 and integral multiples of $1,000 in excess thereof; and |
| be represented by one or more registered Notes in global form, but in certain circumstances may be represented by Notes in certificated form. |
Interest on the Notes will:
| accrue at a rate of 8.50% per annum, payable in cash; |
| accrue from the date of original issuance or, if interest has already been paid, from the most recent interest payment date; |
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| be payable in cash semi-annually in arrears on April 30 and October 30 of each year, commencing with October 30, 2020 with respect to the period from and including the issue date to, but excluding October 30, 2020; |
| be payable to the Holders of record at the close of business on the 15th day immediately preceding the related interest payment dates; and |
| be computed on the basis of a 365-day or 366-day year, as applicable. |
For purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Note for any period in any calendar year (the Calculation Period) is equivalent to the rate payable under the Note in respect of the Calculation Period multiplied by a fraction the numerator of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the Calculation Period. The principle of deemed reinvestment of interest does not apply to any interest calculation under the Notes or Indenture. The rates of interest stipulated in the Notes and the Indenture are intended to be nominal rates and not effective rates or yields.
Ranking
The Notes will:
| be senior secured obligations of the Corporation; |
| be secured by second-ranking Liens (ranking only behind the Liens securing the Credit Facility), subject to Permitted Liens, on the Collateral of the Corporation; |
| rank senior in right of payment to any Subordinated Obligations of the Corporation and rank equally in right of payment to all Indebtedness of the Corporation that is not expressly subordinated in right of payment to the Notes; |
| be effectively subordinated to any existing and future Indebtedness of the Corporation (including Indebtedness under the Credit Facility) that is secured by Liens on assets that do not constitute Collateral, or by Liens on the Collateral that rank senior in priority to the Liens on such Collateral securing the Notes, to the extent of the value of the assets securing such Indebtedness; |
| be effectively senior to the Corporations existing and future unsecured Indebtedness to the extent of the value of the Collateral (after giving effect to any Lien on the Collateral that secures the Credit Facility on a first-priority basis); and |
| be structurally subordinated to all liabilities of any Subsidiary of the Corporation that is not a Guarantor, including the liabilities of the Unrestricted Subsidiaries and the Non-Guarantors, and the liabilities of any Joint Venture in which the Corporation has an interest. |
Each Note Guarantee of a Guarantor will:
| be a senior secured obligation of such Guarantor other than in the case of the Spanish Guarantor which will not grant Liens on its Property in favour of the Collateral Agent unless and until it grants Liens over its Property to the Senior Agent on behalf of the Senior Lenders; |
| be secured by second-ranking Liens (ranking only behind the Liens securing the Credit Facility), subject to Permitted Liens, on the Collateral of such Guarantor, other than in the case of the Spanish Guarantor which will not grant Liens on its Property in favour of the Collateral Agent unless and until it grants Liens over its Property to the Senior Agent on behalf of the Senior Lenders; |
| rank senior in right of payment to any Guarantor Subordinated Obligations of such Guarantor and rank equally in right of payment with all existing and future Indebtedness of such Guarantor that is not expressly subordinated in right of payment to such Guarantors Note Guarantee; |
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| be effectively subordinated to any existing and future Indebtedness of such Guarantor (including Indebtedness under the Credit Facility) that is secured by Liens on assets that do not constitute Collateral, or by Liens on the Collateral that rank senior in priority to the Liens on such Collateral securing such Guarantors Note Guarantee, to the extent of the value of the assets securing such Indebtedness; and |
| except in the case of the Spanish Guarantor, be effectively senior to all of such Guarantors existing and future unsecured Indebtedness to the extent of the value of the Collateral (after giving effect to any Lien on the Collateral that secures the Credit Facility on a first-priority basis). |
Note Guarantees
The obligations of the Corporation under the Indenture and the Notes will be fully and unconditionally guaranteed, jointly and severally, on a senior basis by each of the Corporations current and future Wholly-Owned Restricted Subsidiaries that are not Immaterial Subsidiaries (to the extent permitted by local law in the case of subsidiaries organized in jurisdictions other than Canada and the United States). The Senior Agent and the Senior Lenders have provided financing to the MOA Joint Venture and as a result will also have the benefit of guarantees from each of the non-wholly owned entities forming part of the MOA Joint Venture and NPMMI, which entities will not guarantee the Notes. NPMMI is a wholly owned entity, undertaking marketing activities in respect of the Corporations nickel operations and certain of its Joint Ventures. MMI is a wholly owned single purpose entity holding the Corporations remaining interests (if any) in the Ambatovy Joint Venture following the implementation of the Plan (as defined in this Circular). MMI will not guarantee the Credit Facility or the Notes. Both MMI and NPMMI will be designated as Unrestricted Subsidiaries under the Indenture.
See Certain CovenantsFuture Guarantors.
The Indenture will provide that each Note Guarantee by a Guarantor will be automatically and unconditionally released and discharged upon:
(a) | any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, arrangement, consolidation, winding up or otherwise) of (i) all or substantially all of the assets of such Guarantor or (ii) the Capital Stock of such Guarantor after which the applicable Guarantor is no longer a Restricted Subsidiary of the Corporation, which sale, assignment, transfer, conveyance, exchange or other disposition in each case does not violate the provisions of the Indenture described under Repurchase at the Option of HoldersAsset Disposition and Certain CovenantsMerger and Consolidation (it being understood that only such portion of the Net Available Cash as is required to be applied on or before the date of such release in accordance with the terms of the Indenture needs to be applied in accordance therewith at such time); |
(b) | the proper designation of any Guarantor as an Unrestricted Subsidiary; or |
(c) | the Corporations exercise of its legal defeasance option or covenant defeasance option as described under Defeasance or the discharge of the Corporations obligations under the Indenture in accordance with the terms of the Indenture. |
The Indenture will provide that a Note Guarantee by a Guarantor may, at the option of the Corporation, be unconditionally released and discharged upon (i) such Guarantor becoming an Immaterial Subsidiary or (ii) such Guarantor being released from its obligations under the Credit Facility, except where such release results from the repayment and termination of the Credit Facility.
The Corporation shall be required to deliver to the Indenture Trustee an Officers Certificate and Opinion of Counsel each stating that all conditions precedent provided for in the Indenture relating to such transaction and/or release have been satisfied.
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Security for the Notes
General
The obligations of the Corporation and the Guarantors (except in the case of the Spanish Guarantor, for so long as the Spanish Guarantors obligations are not secured by First Ranking Liens in favour of the Senior Agent, on behalf of the Senior Lenders under the Credit Facility) under the Indenture, the Notes, the Note Guarantees, and the Collateral Documents will be secured by a Second Ranking Lien on the Collateral pursuant to the Collateral Documents. The Collateral will consist of substantially all personal property and assets of the Corporation and the Guarantors (other than the Spanish Guarantor), subject to certain customary exclusions consistent with those contained in the security documents granted in favour of the Senior Agent under the Credit Facility, and will be charged pursuant to Collateral Documents in substantially the same form as those provided in favour of the Senior Agent under the Credit Facility.
The Liens securing the Notes and the Note Guarantees (other than the Note Guarantee of the Spanish Guarantor) will be junior in priority to any Lien in the Collateral granted at any time to secure the Credit Facility. The Senior Agent and the Senior Lenders under the Credit Facility secured by such prior ranking Liens may have rights and remedies with respect to the Collateral that, if exercised, could adversely affect the value of the Collateral or the ability of the Collateral Agent to realize or foreclose on the Collateral on behalf of the Holders of the Notes. In addition, the Senior Agent and the Senior Lenders have provided financing to, and have obtained guarantees from the non-wholly owned entities forming part of the MOA Joint Venture and NPMMI, and as a result will have Liens on certain assets of such Joint Ventures and NPMMI (consisting primarily of cash and accounts), which assets will not form part of the Collateral.
The Corporation and the Guarantors will be able to incur additional Indebtedness in the future which could be secured by Liens on the Collateral, including Additional Notes. The amount of such additional Indebtedness will be limited by the covenants described under Certain Covenants Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock and Certain Covenants Limitation on Liens.
Collateral Agent
Pursuant to the Collateral Documents, the Collateral Agent appointed by the Corporation will act as collateral agent for the benefit of the Holders of the Notes.
The Collateral Agent will hold (directly or through co-agents or sub-agents), and will be entitled to enforce, all Second Ranking Liens on the Collateral created by the Collateral Documents.
Except as provided in the Intercreditor Agreement, the Collateral Agent will not commence any exercise of remedies or any foreclosure actions or otherwise take any actions or proceedings against any of the Collateral.
Intercreditor Agreement
On or prior to the Issue Date, the Collateral Agent, the Senior Agent on behalf of the Senior Lenders, the Corporation and the Guarantors will enter into the Intercreditor Agreement, which may be amended from time to time in accordance with the terms thereof. The Intercreditor Agreement will provide that, while any amount under the Credit Facility remains outstanding, the Senior Lenders will, during the Standstill Period (as defined and described below) control, subject to certain limited exceptions in the Intercreditor Agreement, the exercise of all remedies and other enforcement actions related to the Collateral. In such circumstances, subject to certain limited exceptions in the Intercreditor Agreement to preserve and protect the Second Ranking Liens and the right to make claims associated therewith, none of the Collateral Agent, the Indenture Trustee or the Holders of the Notes will be able to take actions to exercise remedies to enforce the security interests related to the Collateral, force a sale of the Collateral, or otherwise exercise remedies normally available to secured creditors without the concurrence of the Senior Lenders.
Liens securing all obligations owing to the Senior Lenders and the Senior Agent will at all times be senior and prior in all respects to liens securing the Notes obligations, and liens securing the Notes obligations will at all times be junior and subordinate in all respects to liens securing all obligations owing to the Senior Lenders and the Senior
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Agent, provided that the principal amount of such obligations owing to the Senior Lenders and the Senior Agent which have such priority shall be limited to the greater of (a) $70 million and (b) a principal amount equal to the then-effective Borrowing Base (as defined in the Credit Facility from time to time) plus (ii) the amount of any shortfall resulting from outstanding advances that may exceed the Borrowing Base as a result of any recalculation of the Borrowing Base in the intervening period plus (iii) $10 million plus (iv) all obligations of the Corporation and the Guarantors outstanding under any hedging agreement or cash management agreement with any Senior Lender (the First Lien Cap). Notwithstanding the foregoing, the Senior Agent on behalf of the Senior Lenders shall retain a subordinate lien ranking in priority behind the Notes in respect of any advanced amounts in excess of the First Lien Cap (the Excess Amount).
The Indenture Trustee and Collateral Agent on behalf of the Holders of the Notes will not be entitled to take any enforcement action (including commencing insolvency proceedings) or otherwise exercise control or rights and remedies (subject to certain customary unrestricted actions including demand, acceleration and filing of proofs of claim) with respect to the Corporation or any Guarantor, or the Collateral, until the passage of a standstill period of 180 days from the first date on which the Senior Agent, on behalf of the Senior Lenders, has received from the Collateral Agent written notice of its intention to take any such enforcement action or exercise such rights and remedies (the Standstill Period), which notice may only be delivered following the occurrence of and during the continuance of an Event of Default under the Notes (a Notes Default) and thereafter following the expiry of the Standstill Period for so long as (i) the Senior Agent, on behalf of the Senior Lenders, is diligently pursuing an enforcement action or otherwise exercising control or rights and remedies with respect to a material portion of the collateral or is stayed or otherwise precluded from taking such enforcement action or exercising such control or rights and remedies, or (ii) the Corporation or any Guarantor is then subject to insolvency proceedings. In addition to the foregoing, if the Credit Facility is no longer outstanding, then upon the occurrence of and during the continuance of an Event of Default, the Collateral Agent will have the right to exercise remedies with respect to the Collateral.
When the Collateral Agent has control of enforcement, under the terms of the Indenture and the Collateral Documents, the Indenture Trustee will provide instructions to the Collateral Agent (at the direction of Holders of a majority in principal amount of the outstanding Notes (see Events of Default below)) for the determination of the circumstances and manner in which to dispose of the Collateral, including, but not limited to, the determination of whether to force a sale or foreclose on such Collateral following an Event of Default. Notwithstanding the foregoing sentence, any action taken or not taken without the vote of any Holder of outstanding Notes will nevertheless be binding on such Holder if approved by Holders of a majority in principal amount of the outstanding Notes. If the Collateral Agent has asked the holders of the Notes for instruction and the holders have not yet responded to such request, the Collateral Agent will be authorized, but not required, to take, and will not in any event have any liability for taking, delaying in taking or failing to take, such actions with regard to an Event of Default or event which the Collateral Agent, in good faith, reasonably believes to be required to promote and protect the interests of the Holders of the Notes and to preserve the value of the Collateral; provided that, once instructions with respect to such request have been received by the Collateral Agent from the requisite majority of the Holders of the outstanding Notes, the actions of the Collateral Agent will be governed thereby and the Collateral Agent will not take any further action which would be contrary thereto.
At any time that any Credit Facility remains outstanding, the right of the Collateral Agent to repossess and dispose of the Collateral upon the occurrence of an Event of Default under the Indenture:
(a) | will be subject to the provisions of the Intercreditor Agreement; |
(b) | in the case of Collateral that is subject to Permitted Liens, will be subject to the terms of agreements governing those Permitted Liens; and |
(c) | is likely to be significantly impaired by applicable Bankruptcy Law if a bankruptcy or insolvency proceeding were to be commenced by or against the Corporation or any of its Subsidiaries prior to the Collateral Agent having repossessed and disposed of the Collateral. |
Pursuant to the Intercreditor Agreement, the proceeds realized from the Collateral (whether realized pursuant to any insolvency proceeding or otherwise, and including distributions in respect of secured claims in an insolvency
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proceeding) will, as between the Indenture Trustee, the Collateral Agent and the Holders of the Notes on the one hand, and the Senior Agent and the Senior Lenders on the other hand, be applied as follows:
(a) | first, to amounts owing to the Senior Agent and the Senior Lenders for their fees, costs, and expenses in accordance with the terms of the applicable documents; |
(b) | second, to amounts owing to the Senior Lenders in accordance with the terms of the Credit Facility, and other Liens on the Collateral ranking prior to the Second Ranking Liens, until they are paid in full, subject to the First Lien Cap; |
(c) | third, to amounts owing to the Collateral Agent and the Indenture Trustee (in its respective capacities as such) for its fees, costs and expenses in accordance with the terms of the applicable documents; |
(d) | fourth, rateably to amounts owing to the Holders of the Notes (in accordance with the terms of the Indenture); |
(e) | fifth, on account of any Excess Amount owing to the Senior Lenders in accordance with the terms of the Credit Facility until they are paid in full; and |
(f) | sixth, to the Corporation, the Guarantors and/or other Persons entitled thereto pursuant to applicable law. |
The Collateral has not been appraised in connection with the transactions described in this Circular, and the Fair Market Value of the Collateral is subject to fluctuations based on factors that include, among others, the ability of the Corporation to implement its business strategies and similar factors. In the event of a foreclosure, liquidation, bankruptcy, or similar proceeding, there is no assurance that the Collateral will be sufficient to pay the Corporations obligations under the Notes. In addition, the fact that the Senior Lenders under the Credit Facility will receive proceeds from enforcement of the Collateral before Holders of the Notes and that other Persons may have prior Liens on Property subject to Permitted Liens could have a material adverse effect on the amount that would be realized upon a liquidation of the Collateral. Accordingly, there can be no assurance that the Collateral granted as security for the Notes and the Note Guarantees pursuant to the Indenture and the Collateral Documents following an Event of Default would be sufficient to satisfy, or would not be substantially less than, amounts due under the Notes.
Information regarding Collateral
The Corporation will furnish to the Collateral Agent, with respect to the Corporation or any Guarantor, promptly (and in any event within 30 days of such change) written notice of (i) any change of name, or the adoption of a French or combined English/French or French/English form of name, of such Person, (ii) any change in the jurisdiction where (A) such Person is incorporated, formed or continuing or is located (within the meaning of Section 7(3) of the PPSA) or (B) where the registered office, chief executive office or principal place of business such Person is located, or (iii) changes to the locations where such Person maintains its records, and of full particulars of such new location.
Release of Liens
The Collateral Documents and the Indenture will provide that the Second Ranking Liens securing any Note Guarantees of any Guarantor will be released automatically when such Note Guarantees are released in accordance with the terms of the Indenture. In addition, the Second Ranking Liens securing the Notes and the Note Guarantees will be released automatically:
(a) | upon defeasance of the Indenture as set forth under Defeasance; |
(b) | upon payment in full of principal, interest and all other obligations (other than contingent indemnity obligations) on the Notes; |
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(c) | with the consent of the requisite holders of the Notes in accordance with the provisions under Amendments and Waivers, including, without limitation, consents obtained in connection with an offer for, or purchase of, the Notes; |
(d) | in connection with any disposition of Collateral to any Person other than the Corporation or any of the Guarantors (but excluding any transaction subject to the covenant described under ¬Certain Covenants Merger and Consolidation if the recipient is required to become the obligor on the Notes or a Guarantor) that is permitted by the Indenture (with respect to the Lien on such Collateral); |
(e) | upon the release by the Senior Agent of the Liens granted in its favour by the Corporation or any Guarantor, other than in connection with a repayment and termination of the Credit Facility; |
(f) | upon the sale or disposition of any Collateral pursuant to the exercise of any rights and remedies by the Senior Agent, on behalf of the Senior Lenders, with respect to any Collateral securing the Credit Facility or the commencement or prosecution of enforcement by the holders of first lien Indebtedness of any of the rights and remedies under any security document securing first lien Indebtedness or applicable law, including, without limitation, the exercise of any rights of set-off or recoupment; and |
(g) | upon the sale or disposition of Collateral pursuant to the exercise of any rights and remedies by the Collateral Agent with respect to the Collateral securing the Notes in accordance with the terms of the Intercreditor Agreement. |
Notwithstanding anything to the contrary, no sale, transfer, lease or other disposal of Collateral by any Person to the Corporation or any Guarantor shall result in the release of the Lien on such Collateral.
Additional Collateral, Acquisition of Property, Further Assurances
The Indenture and the Collateral Documents will require that the Corporation grant to the Collateral Agent for its benefit and for the benefit of the Holders of the Notes duly created, enforceable, and perfected Second Ranking Liens on all Collateral acquired after the Issue Date, to the same extent and upon the same terms as the Liens granted in favour of the Senior Agent on behalf of the Senior Lenders under the Credit Facility. In addition, any future Subsidiaries required to become Guarantors (as set forth under Certain Covenants - Future Guarantors) will be required to similarly grant Second Ranking Liens on their Property to the Collateral Agent for the benefit of the Holders of the Notes.
The Corporation will, and will cause each of the Guarantors, if any, to, do or cause to be done all acts and things that may be reasonably requested by the Collateral Agent to assure and confirm that the Collateral Agent holds, for the benefit of the Holders of the Notes, duly created, enforceable, and perfected Liens upon the Collateral.
Perfection and Non Perfection of Security in Collateral
To the extent that the Liens in favour of the Collateral Agent in any Collateral are not perfected, the Collateral Agents rights may only be equal to the rights of the general unsecured creditors of the Corporation and the Guarantors in the event of a bankruptcy or insolvency. Outside of bankruptcy or insolvency, Liens of certain Lien holders, such as holders of certain statutory or possessory Liens, judgment creditors, or any creditors who obtain a perfected Lien in any items of Collateral in which the Collateral Agents Liens are unperfected or in which such unperfected Liens or the perfected Liens under applicable law have priority over the Collateral Agents Lien, may take priority over the Collateral Agents interest in the Collateral.
Accordingly, there can be no assurance that the Property in which the Collateral Agents Liens are unperfected or perfected but not having the intended priority will be available upon the occurrence of an Event of Default to satisfy the obligations under the Notes.
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Bankruptcy and Insolvency Limitations
In addition to the limitations described elsewhere herein, the rights of the Indenture Trustee and the Collateral Agent to enforce remedies are likely to be significantly impaired by the restructuring provisions of applicable Canadian federal bankruptcy, insolvency, and other restructuring legislation in the event the benefit of such legislation is sought with respect to the Corporation or any Guarantor. For example, both the Bankruptcy and Insolvency Act (Canada) (the BIA) and the Companies Creditors Arrangement Act (Canada) (the CCAA) contain provisions enabling an insolvent Person to obtain a stay of proceedings against its creditors and others to prepare and file a proposal or plan of arrangement for consideration by all or some of its creditors to be voted on by the various classes of its creditors affected thereby. Such a restructuring proposal, if accepted by the requisite majorities of each affected class of creditors and if approved by the relevant court, would be binding on creditors within any such class who may not otherwise be willing to accept it. Moreover, this legislation permits the insolvent debtor to retain possession and administration of its property, subject to court oversight, even though it may be in default under the applicable debt instrument.
The powers of the court under the BIA and the CCAA have been exercised broadly to protect a restructuring entity from actions taken by creditors and other parties. Accordingly, the Corporation cannot predict whether payments under the Notes would be made following commencement of or during such proceeding, whether or when the Indenture Trustee or the Collateral Agent could exercise their rights under the Indenture and the applicable Collateral Documents, respectively, or whether and to what extent holders of the Notes would be compensated for any delays in payment, if any, of principal, interest and costs, including the fees and disbursements of the Collateral Agent.
Some of the Guarantors are formed in jurisdictions other than Canada and some of the Collateral may be located in jurisdictions outside of Canada. The rights of the Indenture Trustee and the Collateral Agent to enforce remedies may be further affected by the provisions of applicable restructuring, bankruptcy, insolvency and similar legislation in such jurisdictions.
Payments on the Notes; Paying Agent and Registrar
The Corporation will pay, or cause to be paid, the principal of, premium, if any, and interest on the Notes at the office or agency designated by the Corporation. The Corporation has initially designated the Indenture Trustee to act as its paying agent (the Paying Agent) and registrar (the Registrar) at its corporate trust office. The Corporation may, however, change the Paying Agent or Registrar without prior notice to the Holders, and the Corporation or any of its Restricted Subsidiaries may act as Paying Agent or Registrar.
The Corporation will pay principal of, premium, if any, and interest on, Notes in global form registered in the name of or held by CDS or its nominee in immediately available funds to CDS or its nominee, as the case may be, as the registered Holder of such global Note.
Payment of Additional Amounts
All amounts paid or credited by the Corporation under or with respect to the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Corporation is organized, resident, or doing business for tax purposes, or from or through which the Corporation (or its agents) makes any payment on the Notes, or any taxing authority thereof, and the Corporation will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
All payments made by or on behalf of any Guarantor (each such payor, a Payor) under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of, any present or future Taxes, imposed or levied by or on behalf of any jurisdiction in which such Guarantor is organized, carrying on business in for tax purposes, or is resident for tax purposes or any jurisdiction from or through which payment is made (including the jurisdiction of any paying agent) (each, a Relevant Taxing Jurisdiction), unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing
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Jurisdiction from any payment made under or with respect to any Note Guarantee, such Payor will be required to pay such additional amounts (Additional Amounts) as may be necessary so that the net amount received by a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner of Notes would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to any Taxes payable by virtue of:
(a) the applicable Payor not dealing at arms length (within the meaning of the Tax Act) with such Holder or beneficial owner at the time of the payment;
(b) such Holder or beneficial owner being either (i) a specified non-resident shareholder of the Corporation or a relevant Guarantor or (ii) a non-resident person who does not deal at arms length with a specified shareholder of the Corporation or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act;
(c) any connection between such Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction other than a connection resulting from the mere acquisition, ownership, holding or disposition of, or the enforcement of rights under or the receipt of payments in respect of, any Notes or Note Guarantees or beneficial interests therein;
(d) such Holder or beneficial owner failing to duly and timely comply (where such Holder or beneficial owner is legally eligible to do so) with a timely request of the Corporation to comply with information, documentation, certification or other evidentiary requirements concerning such Holders or beneficial owners nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner of Notes but for this clause (d), and provided that the Corporation provides written notice of such requirement to the applicable Holder or beneficial owner at least 30 days prior to the date of the payment in respect of which Additional Amounts would be payable;
(e) such Holder or beneficial owner being a fiduciary, a partnership or not the beneficial owner of any payment on a Note, if and to the extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner);
(f) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note; or
(g) any combination of the foregoing clauses (a) to (f).
(Any Taxes, other than Taxes described in the foregoing clauses (a) to (g), are referred to herein as Indemnified Taxes.)
The applicable Payor will make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Corporation will provide the Indenture Trustee with official receipts or other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and beneficial owner for the amount of (A) any Indemnified Taxes not withheld or deducted by such Guarantor and levied or imposed and paid by such Holder or beneficial owner as a result of payments made under or with respect to the Guarantees, (B) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (C) any Indemnified Taxes imposed with respect to any reimbursement under clauses (a) or (b) above.
If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least 30 days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, promptly after the date that the obligation to pay Additional Amounts arises), such Payor will deliver to the Indenture Trustee an Officers Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date.
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Whenever in the Indenture there is mentioned in any context:
(1) | the payment of principal; |
(2) | redemption prices or purchase prices in connection with a redemption or purchase of Notes; |
(3) | interest; or |
(4) | any other amount payable on or with respect to any of the Notes or any Note Guarantee; |
such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations described under this heading will survive any termination, defeasance or discharge of the Indenture and any transfer by an applicable Holder or beneficial owner of its Notes to another applicable Holder or beneficial owner, and will apply, mutatis mutandis, to any jurisdiction in which any successor to the Corporation or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes, or any jurisdiction from or through which such successor makes any payment on a Note Guarantee and, in each case, any department or political subdivision thereof or therein.
Transfer and Exchange
A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and such other documents as may be reasonably requested by it documenting the identity and/or signatures of the transferor and the transferee. No service charge will be imposed by the Corporation, the Indenture Trustee or the Registrar for any registration of transfer or exchange of Notes, but the Corporation may require a Holder to pay a sum sufficient to cover any transfer tax or other governmental taxes and fees required by law or permitted by the Indenture except to the extent any such tax or fee is to be reimbursed by the Corporation or Guarantor as an Indemnified Tax. The Corporation is not required to transfer or exchange any Note selected for redemption. Also, the Corporation is not required to transfer or exchange any Note for a period of 15 days before the day of mailing of a notice of redemption of Notes to be redeemed.
The registered Holder of a Note will be treated as the owner of it for all purposes.
Optional Redemption
At any time, the Corporation may redeem the Notes, in whole or in part, on one or more occasions, not less than 30 nor more than 60 days notice, at the following redemption prices:
(1) | at any time prior to April 30, 2026 at a redemption price equal to 103% of the principal amount of the Notes so redeemed, plus accrued and unpaid interest of the Notes, if any, to (but excluding) the applicable date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date); and |
(2) | at any time from and after April 30, 2026 at a redemption price equal to 100% of the principal amount of the Notes so redeemed, plus accrued and unpaid interest of the Notes, if any, to (but excluding) the applicable date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date); |
If the optional redemption date is on or after an interest record date and on or before the related interest payment date, the accrued and unpaid interest, if any, will be paid to the Person in whose name the Note is registered at the close of business on such record date, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Corporation.
In the case of any partial redemption, selection of the Notes for redemption will be made in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are
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not listed but are in global form, then by lot or otherwise in accordance with the procedures of CDS or, if the Notes are not listed and not in global form on a pro rata basis, by lot or by such other method as the Indenture Trustee in its sole discretion will deem to be fair and appropriate, although no Note of $1,000 in original principal amount or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note will state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note.
Any redemption notice may, at the Corporations discretion, be subject to one or more conditions precedent, including completion of an Equity Offering or other corporate transaction.
Mandatory Redemption from Excess Cash Flow
Commencing with the two fiscal quarter period ending June 30, 2021:
(1) | solely to the extent that the Corporation has the Minimum Liquidity Amount both before and after making such payment, on the first interest payment date falling after the end of the fiscal quarter ending on June 30 in each fiscal year (the first such interest payment date being, October 30, 2021), the Corporation shall redeem the Notes on a pro rata basis in accordance with the redemption provisions under the Indenture in the maximum aggregate principal amount of Notes that may be redeemed, at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the date of redemption, from an amount equal to: (x) 50% of the Excess Cash Flow in respect of the immediately preceding two fiscal quarter period less (y) the aggregate amount of all voluntary permanent prepayments of Notes and mandatory permanent prepayments of Notes (other than any mandatory permanent prepayments made pursuant to the covenant under the headingMandatory Redemptions from Excess Cash Flow) that were made during such immediately preceding two fiscal quarter period (the result of (x) less (y) being the Q2 ECF Payment Amount); provided, that if (a)(1) the result of such subtraction is not a positive number and (2) the amount of Excess Cash Flow for such period is greater than zero, any negative amount resulting from such subtraction (the Q2 Excess Prepayment Carry Over Amount) may be carried over to the subsequent two fiscal quarter period only and used as a deduction in the calculation of the Q4 ECF Payment Amount referred to in clause (2) below, or (b)(1) the result of such subtraction is not a positive number and (2) the amount of Excess Cash Flow for such period is zero or less, the aggregate amount of all voluntary permanent prepayments of Notes and mandatory permanent prepayments of Notes (other than any mandatory permanent prepayments made pursuant to the covenant under the headingMandatory Redemptions from Excess Cash Flow) made during such period (the Q2 Negative Prepayment Carry Over Amount) may be carried over for the subsequent two quarter period only and used as a deduction in the calculation of the Q4 ECF Payment Amount referred to in clause (2) below (and with either the Q2 Negative Prepayment Carry Over Amount or the Q2 Excess Prepayment Carry Over Amount being expressed as a positive number and referred to as the Q2 Prepayment Carry Over Amount); provided that, if the Q2 ECF Payment Amount is a positive number but is less than $5 million, such Q2 ECF Payment Amount shall be paid together with the Q4 ECF Payment Amount referred to in clause (2) below; and |
(2) | solely to the extent that the Corporation has the Minimum Liquidity Amount both before and after making such payment, on the first interest payment date falling after the end of the fiscal quarter ending on December 31 in each fiscal year (the first such interest payment date being April 30, 2022), the Corporation shall redeem Notes on a pro rata basis in accordance with the redemption provisions under the Indenture in the maximum aggregate principal amount of Notes that may be redeemed, at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the date of redemption, from an amount equal to the sum of (i)(x) 50% of the Excess Cash Flow in respect of the immediately preceding two fiscal quarter period less (y) the sum of the voluntary permanent prepayments of Notes and mandatory permanent prepayments of Notes (other than any mandatory permanent prepayments made pursuant to the covenant under the headingMandatory Redemptions from Excess Cash Flow) that were made during such immediately preceding two fiscal quarter period plus the Q2 |
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Prepayment Carry Over Amount, if any, for the two fiscal quarter period ending on June 30 in such fiscal year (the result of (x) less (y) being the Q4 ECF Payment Amount); provided, however, if the result of such subtraction is not a positive number, such amount shall be deemed to be zero for purposes of this clause (2)(i) plus (ii) the preceding Q2 ECF Payment Amount (to the extent such Q2 ECF Payment Amount was a positive number less than $5 million and not required to be paid pursuant to clause (1) above). |
In addition, under certain circumstances, the Corporation may be required to offer to purchase the Notes as described under the heading Repurchase at the Option of Holders.
Open Market Purchases
The Corporation may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws and regulations, including, without limitation, Canadian Securities Legislation, so long as such acquisition does not otherwise violate the terms of the Indenture.
Repurchase at the Option of Holders
Change of Control
If a Change of Control occurs, unless the Corporation has given notice to redeem all of the outstanding Notes as described under Optional Redemption, the Corporation will, within 30 days following such Change of Control, make an offer to purchase all of the outstanding Notes (a Change of Control Offer) at a purchase price in cash equal to 101% of the principal amount of such outstanding Notes plus accrued and unpaid interest, if any, to (but excluding) the date of purchase (the Change of Control Payment) (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to the date of purchase).
The Corporation will mail a notice of such Change of Control Offer to each Holder or otherwise give notice in accordance with the applicable procedures of CDS, with a copy to the Indenture Trustee, stating:
(1) | that a Change of Control Offer is being made and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Corporation at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on an interest payment date); |
(2) | the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the Change of Control Payment Date); and |
(3) | the procedures determined by the Corporation, consistent with the Indenture, that a Holder must follow in order to have its Notes repurchased. |
On the Change of Control Payment Date, the Corporation will, to the extent lawful:
(1) | accept for payment all Notes or portions of Notes (of $1,000 or integral multiples of $1,000 in excess thereof) validly tendered and not validly withdrawn pursuant to the Change of Control Offer; |
(2) | deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes so accepted for payment; and |
(3) | deliver or cause to be delivered to the Indenture Trustee for cancellation the Notes so accepted for payment together with an Officers Certificate to the Indenture Trustee stating the aggregate principal amount of Notes or portions of Notes being purchased by the Corporation in accordance with the terms of this covenant. |
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The Paying Agent will promptly pay to each Holder of Notes so accepted for payment the Change of Control Payment for such Notes, and the Indenture Trustee, upon receipt of an authentication order from the Corporation will promptly authenticate and mail (or cause to be transferred by book entry) to each such Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $1,000 or integral multiples of $1,000 in excess thereof.
If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, the accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name the Note is registered at the close of business on such record date, and no additional interest will be payable to Holders whose Notes are tendered pursuant to the Change of Control Offer.
Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.
The Change of Control provisions described above will be applicable whether or not any other provisions of the Indenture are applicable. Except as described above with respect to a Change of Control, the Indenture will not contain provisions that permit the Holders to require that the Corporation repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.
The Corporations Credit Facility contains, and future agreements may contain, prohibitions of certain events, including events that would constitute a Change of Control or an Asset Disposition, or repurchases of the Notes upon a Change of Control or Asset Disposition, or events of default relating thereto. The exercise by the Holders of their right to require the Corporation to repurchase the Notes upon a Change of Control or an Asset Disposition could cause a default under these other agreements, even if the Change of Control or Asset Disposition itself does not, due to the prohibition under these other agreements of such repurchases or the financial effect of such repurchases on the Corporation. In such circumstances, the Corporation could seek the consent of their other lenders to such consequences of a purchase of Notes or could attempt to refinance such other borrowings. If the Corporation does not obtain a consent or repay those borrowings, any failure by the Corporation to purchase tendered notes would constitute an Event of Default under the Indenture which could, in turn, constitute a default under the other Indebtedness. Finally, the Corporations ability to pay cash to the Holders upon a repurchase may be limited by the Corporations then existing financial resources.
The Corporation will not be required to make a Change of Control Offer upon a Change of Control if a third party makes an offer to purchase all of the outstanding Notes in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer, and such third party purchases all Notes validly tendered and not validly withdrawn pursuant to such offer to purchase.
The Corporation will comply with all applicable securities laws and regulations, including, without limitation, Canadian Securities Legislation and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of the Indenture, the Corporation will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in the Indenture by virtue of the conflict.
The definition of Change of Control includes a disposition of all or substantially all of the property and assets of the Corporation and its Restricted Subsidiaries, taken as a whole, to any Person. Although there is a limited body of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve a disposition of all or substantially all of the property or assets of the Corporation and its Restricted Subsidiaries, taken as a whole. As a result, it may be unclear as to whether a Change of Control has occurred and whether a Holder may require the Corporation to make a Change of Control Offer. Certain provisions under the Indenture relating to the Corporations obligation to make a Change of Control Offer may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
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Stub Redemption
In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Corporation purchases all of the Notes held by such Holders, within 90 days of such purchase, the Corporation will have the right, upon not less than 30 days nor more than 60 days prior notice, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes to (but excluding) the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
Asset Disposition
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, consummate any Asset Disposition unless:
(1) | the Corporation or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition; and |
(2) | at least 75% of the consideration from such Asset Disposition received by the Corporation or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. |
For the purposes of clause (2) above and for no other purpose, the following will be deemed to be cash:
(a) | any liabilities (as shown on the Corporations or such Restricted Subsidiarys most recent balance sheet) of the Corporation or any of its Restricted Subsidiaries (other than Subordinated Obligations or Guarantor Subordinated Obligations) that are assumed by the transferee of any such assets or from which the Corporation and all such Restricted Subsidiaries have been otherwise validly released by all creditors in writing; |
(b) | any Designated Non-Cash Consideration received by the Corporation or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (2) that is at that time outstanding, not to exceed $20 million at the time of the receipt of such Designated Non-Cash Consideration (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); |
(c) | any securities, notes or other obligations received by the Corporation or any of its Restricted Subsidiaries from the transferee that are converted by the Corporation or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition; and |
(d) | any Additional Assets. |
Within 360 days from the later of the date of such Asset Disposition or the receipt by the Corporation or such Restricted Subsidiary, as the case may be, of Net Available Cash from such Asset Disposition, the Corporation or such Restricted Subsidiary, as the case may be, may apply, at its option, an amount equal to 100% of the Net Available Cash from such Asset Disposition as follows:
(i) | to permanently repay (and if such Secured Indebtedness is revolving, to permanently reduce commitments with respect thereto) Secured Indebtedness under the Credit Facility or Indebtedness of a Non-Guarantor Restricted Subsidiary, in each case other than Indebtedness owed to the Corporation or a Restricted Subsidiary of the Corporation; |
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(iii) | to invest in Additional Assets or make capital expenditures that are used or useful in a Similar Business; or |
(iii) | a combination of reductions and investments permitted by the foregoing clauses (i) and (ii); |
provided that pending the final application of any such Net Available Cash in accordance with clause (i), (ii) or (iii) above, the Corporation and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by the Indenture; provided, further, that in the case of clause (ii), a binding commitment to invest in Additional Assets or to make capital expenditures that are used or useful in a Similar Business shall be treated as a permitted application of the Net Available Cash on the date of such commitment so long as the Corporation or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 135 days of such commitment (an Acceptable Commitment), it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied pursuant thereto, then such Net Available Cash shall constitute Excess Proceeds (as defined herein) until such Net Available Cash is applied or invested as provided in this paragraph.
Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute Excess Proceeds. On the 361st day after an Asset Disposition, or earlier at the Corporations option, if the aggregate amount of Excess Proceeds exceeds $15 million, the Corporation will be required to make an offer (Asset Disposition Offer) to all Holders to purchase the maximum aggregate principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the date of purchase (subject to the right of Holders of record on a record date to receive interest due on the relevant interest payment date), in accordance with the procedures set forth in the Indenture. The Corporation shall commence an Asset Disposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the procedures of CDS) the notice required pursuant to the terms of the Indenture, with a copy to the Indenture Trustee. To the extent that the aggregate amount of Notes validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Corporation or the applicable Restricted Subsidiary may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof, collectively, exceeds the amount of Excess Proceeds, the Notes to be repurchased shall be selected in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed but are in global form, then by lot or otherwise in accordance with the procedures of CDS or, if the Notes are not listed and not in global form on a pro rata basis, by lot or by such other method as the Indenture Trustee in its sole discretion will deem to be fair and appropriate, and the Corporation shall select Notes to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes. Upon completion of such Asset Disposition Offer, regardless of the amount of Excess Proceeds used to purchase Notes pursuant to such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the Asset Disposition Offer Period). No later than five Business Days after the termination of the Asset Disposition Offer Period (the Asset Disposition Purchase Date), the Corporation will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes required to be purchased pursuant to this covenant (the Asset Disposition Offer Amount) or, if less than the Asset Disposition Offer Amount of Notes has been so validly tendered and not validly withdrawn, all Notes validly tendered and not validly withdrawn in response to the Asset Disposition Offer.
On or before the Asset Disposition Purchase Date, the Corporation will, to the extent lawful, accept for payment, by lot or on a pro rata basis, as applicable, the Asset Disposition Offer Amount of Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not validly withdrawn, all Notes so tendered and not withdrawn, in the case of the Notes in integral multiples of $1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $1,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $1,000. The Corporation will deliver, or cause to be delivered, to
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the Indenture Trustee the Notes so accepted and an Officers Certificate stating the aggregate principal amount of Notes or portions thereof so accepted and that such Notes or portions thereof were accepted for payment by the Corporation in accordance with the terms of this covenant. The Paying Agent or the Corporation, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Disposition Offer Period, mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Corporation for purchase, and, if less than all of the Notes tendered are purchased pursuant to the Asset Disposition Offer, the Corporation will promptly issue a new Note, and the Indenture Trustee, upon delivery of an authentication order from the Corporation, will authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in the Indenture to the contrary, no Opinion of Counsel or Officers Certificate will be required for the Indenture Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Corporation to the Holder thereof. The Corporation will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
The Corporation will comply with all applicable securities laws and regulations, including, without limitation, Canadian Securities Legislation and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of the Indenture, the Corporation will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue of any conflict.
The Corporations obligation to make an Asset Disposition Offer following an Asset Disposition that has been consummated may be waived or modified after the occurrence of such Asset Disposition with the written consent of Holders of at least 66 2/3% in principal amount of the Notes then outstanding.
Certain Covenants
Effectiveness of Covenants Mandatory Redemption
Following the first day that:
(a) | the aggregate outstanding principal amount of the Notes is less than $150 million; and |
(b) | no Default or Event of Default has occurred and is continuing under the Indenture, |
the Corporation and its Restricted Subsidiaries will not be subject to the covenant summarized under the heading Mandatory Redemptions from Excess Cash Flow (the Suspended Mandatory Redemption Covenant).
If at any time thereafter (a) the aggregate outstanding principal amount of the Notes exceeds $150 million thereafter or (b) if a Default or Event of Default occurs and is continuing, then the Suspended Mandatory Redemption Covenant will be immediately reinstated as if such covenant had never been suspended (the Mandatory Redemption Reinstatement Date) and be applicable pursuant to the terms of the Indenture, unless and until such time as (a) the aggregate outstanding principal amount of the Notes is subsequently reduced to less than $150 million and (b) no Default or Event of Default has occurred and is continuing (in which event the Suspended Mandatory Redemption Covenant shall no longer be in effect for so long as (a) the aggregate outstanding principal amount of the Notes is less than $150 million and (b) no Default or Event of Default has occurred and is continuing); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under the Indenture, the Notes or the Note Guarantees with respect to the Suspended Mandatory Redemption Covenant based on, and none of the Corporation or any of its Subsidiaries shall bear any liability for, failure to make any mandatory redemption during the Mandatory Redemption Suspension Period (as defined below). The period of time between the date of suspension of the covenants and the Mandatory Redemption Reinstatement Date is referred to as the Mandatory Redemption Suspension Period.
If the Mandatory Redemption Suspension Period is in effect for less than the entirety of any two fiscal quarter period, then the amount of mandatory redemptions required to be made in respect of such two fiscal quarter period
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pursuant to the section entitled Mandatory Redemptions from Excess Cash Flow above, shall in each case be reduced on a proportionate basis by an amount equal to the product of A x (B / C) where (A) is equal to the amount of the Q2 ECF Payment amount or the Q4 ECF Payment Amount, as applicable, that would have otherwise been payable during such period if the Mandatory Redemption Suspension Period was not in effect, (B) is equal to the number of days in such period during which the Mandatory Redemption Suspension Period was in effect and (C) is the total number of days in such two fiscal quarter period.
The Corporation will provide the Indenture Trustee and the Holders with prompt written notice of any suspension of the Suspended Mandatory Redemption Covenant or the subsequent reinstatement of the Suspended Mandatory Redemption Covenant.
Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided, however, that the Corporation and the Guarantors may incur Indebtedness if on the date thereof and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio for the Corporation and its Restricted Subsidiaries is at least 2.50 to 1.00.
The first paragraph of this covenant will not prohibit the incurrence of the following Indebtedness:
(1) | Indebtedness of the Corporation or any Restricted Subsidiary incurred under the Credit Facility and the issuance and creation of letters of credit, bankers acceptances, performance or surety bonds and other similar instruments thereunder (with any such undrawn instruments and reimbursement obligations relating to any payables that are satisfied within 30 days being deemed not to be Indebtedness, and bankers acceptances being deemed to have a principal amount equal to the face amount thereof) in an aggregate amount not to exceed the First Lien Debt Cap Amount at any time; |
(2) | Indebtedness represented by the Notes (including any Additional Notes issued under the Indenture from time to time) and including any Note Guarantee and any Refinancing Indebtedness incurred to refund, refinance, replace, exchange, renew, repay or extend any of the foregoing, in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) $295 million plus (ii) the amount of all accrued and unpaid interest on the Existing Notes (as defined in the Circular) up to but not including the Issue Date; |
(3) | Indebtedness of the Corporation and any of its Restricted Subsidiaries in existence on the Issue Date, but excluding Indebtedness described in clauses (1), (2), (4), (5), (7), (9), (10) and (11) of this paragraph); |
(4) | Guarantees by (a) the Corporation or Guarantors of Indebtedness permitted to be incurred by the Corporation or a Guarantor in accordance with the provisions of the Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, and (b) Non-Guarantors of Indebtedness incurred by Non-Guarantors in accordance with the provisions of the Indenture; |
(5) | Indebtedness of the Corporation owing to and held by any of its Restricted Subsidiaries or Indebtedness of a Restricted Subsidiary of the Corporation owing to and held by the Corporation or any other Restricted Subsidiary of the Corporation; provided, however, that: |
(a) | if the Corporation is the obligor on Indebtedness owing to a Non-Guarantor, such Indebtedness is expressly subordinated in right of payment to all Obligations with respect to the Notes; |
(b) | if a Guarantor is the obligor on such Indebtedness and a Non-Guarantor is the obligee, such Indebtedness is expressly subordinated in right of payment to the Note Guarantee of such Guarantor; and |
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(c) (i) | any subsequent issuance or transfer (other than Permitted Liens until the assets subject thereto have been foreclosed upon) of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Corporation or any of its Restricted Subsidiaries; and |
(ii) | any sale or other transfer (other than Permitted Liens until the assets subject thereto have been foreclosed upon) of any such Indebtedness to a Person other than the Corporation or any of its Restricted Subsidiaries, |
shall be deemed, in each case under this clause (5)(c), to constitute an incurrence of such Indebtedness by the Corporation or such Restricted Subsidiary, as the case may be;
(6) | Indebtedness of (x) any Person incurred and outstanding on the date on which such Person became a Restricted Subsidiary of the Corporation or was acquired by, or merged into or amalgamated, arranged or consolidated with, the Corporation or any of its Restricted Subsidiaries or (y) such Persons or the Corporation or any of its Restricted Subsidiaries incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary of the Corporation or was otherwise acquired by, or merged into or amalgamated, arranged or consolidated with the Corporation or any of its Restricted Subsidiaries or (B) otherwise in connection with, or in contemplation of, such acquisition, merger, amalgamation, arrangement or consolidation; provided, however, in each case set forth in clause (x) or (y), that at the time such Person is acquired, merged, amalgamated, arranged or consolidated or such Indebtedness was incurred, either: |
(a) | the Corporation would have been able to incur $1.00 of additional Indebtedness pursuant to the first paragraph of this covenant after giving effect to such transaction or series of related transactions and the incurrence of such Indebtedness pursuant to this clause (6); or |
(b) | the Consolidated Coverage Ratio of the Corporation and its Restricted Subsidiaries would have been higher than such ratio immediately prior to such acquisition, merger, amalgamation, arrangement or consolidation, after giving effect to such transaction or series of related transactions and the incurrence of such Indebtedness pursuant to this clause (6); |
(7) | Indebtedness under Hedging Obligations that are not incurred for speculative purposes; |
(8) | Indebtedness (including Capitalized Lease Obligations) of the Corporation or any of its Restricted Subsidiaries incurred to finance the purchase, design, lease, construction, repair, replacement or improvement of any property (real or personal), plant or equipment used or to be used in a Similar Business through the direct or indirect purchase of such property, plant or equipment, provided such Indebtedness is incurred within 365 days of the construction, acquisition or improvement of such property, plant or equipment, and any Indebtedness of the Corporation or any of its Restricted Subsidiaries that serves to refund or refinance any Indebtedness incurred pursuant to this clause (8), in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (8) then outstanding, will not exceed the $50 million, at any time outstanding; |
(9) | Indebtedness incurred by the Corporation or any of its Restricted Subsidiaries in respect of (a) workers compensation claims, health, disability or other employee benefits; (b) self-insurance obligations or property, casualty, liability or other insurance; and (c) statutory, appeal, completion, export, import, customs, revenue, performance, bid, surety, reclamation, remediation and similar bonds and completion guarantees (not for borrowed money) provided in the ordinary course of business; |
(10) | Indebtedness arising from agreements of the Corporation or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-out or similar obligations, in |
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each case, incurred or assumed in connection with the disposition of any business or assets of the Corporation or any business, assets or Capital Stock of any of its Restricted Subsidiaries, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition; provided that: |
(a) | the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to subsequent changes in value) actually received by the Corporation and its Restricted Subsidiaries in connection with such disposition; and |
(b) | such Indebtedness is not reflected as indebtedness on the balance sheet of the Corporation or any of its Restricted Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (10)); |
(11) | Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; |
(12) | Indebtedness in the form of letters of credit, and reimbursement obligations relating to letters of credit that are satisfied within 30 days of being drawn; |
(13) | the incurrence or issuance by the Corporation or any of its Restricted Subsidiaries of Refinancing Indebtedness that serves (or will serve) to extend, renew, replace, defease, discharge, retire for value, refund or refinance any Indebtedness incurred as permitted under the first paragraph of this covenant or clauses (2), (3), (6), (19) or (20) of this second paragraph of this covenant or this clause (13), or any Indebtedness issued to so extend, renew, replace, defease, discharge, retire for value, refund or refinance such Indebtedness, including additional Indebtedness incurred to pay premiums (including reasonable, as determined in good faith by Senior Management, tender premiums), defeasance costs, accrued interest and fees and expenses in connection therewith; |
(14) | Indebtedness of the Corporation or any of its Restricted Subsidiaries consisting of the financing of insurance premiums incurred in the ordinary course of business; |
(15) | Indebtedness of the Corporation or any of its Restricted Subsidiaries consisting of take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business; |
(16) | Non-Recourse Debt; |
(17) | Indebtedness of the Corporation, to the extent the net proceeds thereof are promptly (a) used to purchase the Notes tendered in connection with a Change of Control Offer or (b) deposited to defease or discharge the Notes as described under Defeasance or Satisfaction and Discharge; |
(18) | Indebtedness of the Corporation or any of its Restricted Subsidiaries in respect of Cash Management Agreements entered into in the ordinary course of business; |
(19) | Indebtedness of the Corporation or any of its Restricted Subsidiaries with respect to Guarantees of Indebtedness of Unrestricted Subsidiaries and Joint Ventures, in an aggregate principal amount under this clause (19) at any one time outstanding not to exceed $50 million; |
(20) | in addition to the items referred to in clauses (1) through (19) above, Indebtedness of the Corporation and its Restricted Subsidiaries in an aggregate principal amount under this clause (20) at any one time outstanding not to exceed $10 million. |
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For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this covenant:
(1) | in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in the second paragraph of this covenant or can be incurred pursuant to the first paragraph of this covenant, the Corporation, in its sole discretion, will classify such item of Indebtedness on the date of incurrence and may later classify such item of Indebtedness in any manner that complies with the first or second paragraph of this covenant and only be required to include the amount and type of such Indebtedness in the first paragraph or one of such clauses under the second paragraph of this covenant provided that all Indebtedness outstanding under the Credit Facility on the Issue Date will be treated as incurred on the Issue Date under clause (1) of the second paragraph of this covenant; |
(2) | Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included; |
(3) | if obligations in respect of letters of credit are incurred pursuant to the Credit Facility and are being treated as incurred pursuant to clause (1) of the second paragraph above and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included; |
(4) | the principal amount associated with any Disqualified Stock of the Corporation or any of its Restricted Subsidiaries, or Preferred Stock of a Non-Guarantor, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; |
(5) | Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; |
(6) | the principal amount of any Indebtedness outstanding in connection with a securitization transaction or series of securitization transactions is the amount of obligations outstanding under the legal documents entered into as part of such transaction that would be characterized as principal if such transaction were structured as a secured lending transaction rather than as a purchase relating to such transaction; and |
(7) | the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with IFRS. |
Accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount, the payment of interest in the form of additional Indebtedness, and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness for purposes of this covenant. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
For purposes of determining compliance with any Canadian dollar-denominated restriction on the incurrence of Indebtedness, the Canadian dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable Canadian dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Canadian dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary of the Corporation, any Indebtedness of such Subsidiary
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shall be deemed to be incurred by a Restricted Subsidiary of the Corporation as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock covenant, the Corporation shall be in Default of this covenant).
Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Corporation and its Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Limitation on Restricted Payments
The Corporation will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to:
(1) | declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of its or any of its Restricted Subsidiaries Capital Stock (including any payment in connection with any merger, amalgamation, arrangement or consolidation involving the Corporation or any of its Restricted Subsidiaries) other than: |
(a) | dividends or distributions payable solely in Capital Stock of the Corporation (other than Disqualified Stock); and |
(b) | dividends or distributions by a Restricted Subsidiary of the Corporation, so long as, in the case of any dividend or distribution payable on or in respect of any Capital Stock of a Restricted Subsidiary of the Corporation that is not a Wholly-Owned Restricted Subsidiary, the Corporation or any of its Restricted Subsidiaries holding such Capital Stock receives at least its pro rata share of such dividend or distribution; |
(2) | purchase, redeem, retire or otherwise acquire for value, including in connection with any merger, amalgamation, arrangement or consolidation, any Capital Stock of the Corporation held by Persons other than the Corporation or any of its Restricted Subsidiaries (other than in exchange for Capital Stock of the Corporation (other than Disqualified Stock)); |
(3) | make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, in each case prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, any Subordinated Obligations or Guarantor Subordinated Obligations, other than: |
(a) | Indebtedness of the Corporation owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Corporation or any Restricted Subsidiary permitted under clause (5) of the second paragraph of the covenant Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; or |
(b) | the making of any principal payment on, or the purchase, repurchase, redemption, defeasance or other acquisition or retirement of, Subordinated Obligations or Guarantor Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement; or |
(4) | make any Restricted Investment. |
(all such payments and other actions referred to in clauses (1) through (4) (other than any exception thereto) shall be referred to as a Restricted Payment), unless, at the time of and after giving effect to such Restricted Payment:
(a) | no Default shall have occurred and be continuing (or would result therefrom); |
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(b) | immediately after giving effect to such transaction on a pro forma basis, the Corporation could incur $1.00 of additional Indebtedness under the provisions of the first paragraph of the Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock covenant; and |
(c) | the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date (without duplication and excluding Restricted Payments made pursuant to clauses (1), (2), (3), (4), (7), (8), (10), (11), (12) and (13) of the next succeeding paragraph) would not exceed the sum of (without duplication): |
(i) | 50% of Consolidated Net Income for the period (treated as one accounting period) from January 1, 2020 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which internal financial statements are available (or, in case such Consolidated Net Income is a deficit, minus 100% of such deficit); plus |
(ii) | 100% of the aggregate Net Cash Proceeds, or Fair Market Value of assets, received by the Corporation from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date other than Net Cash Proceeds, or Fair Market Value of assets received, by the Corporation from the issue or sale of such Capital Stock to a Restricted Subsidiary of the Corporation or to an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Corporation or any of its Restricted Subsidiaries unless such loans have been repaid with cash on or prior to the date of determination; plus |
(iii) | the amount by which Indebtedness of the Corporation or any of its Restricted Subsidiaries is reduced on the Corporations consolidated balance sheet upon the conversion or exchange subsequent to the Issue Date of any Indebtedness of the Corporation or any of its Restricted Subsidiaries (other than any such Indebtedness held by a Restricted Subsidiary of the Corporation) convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Corporation (less the amount of any cash, or the Fair Market Value of any other property, distributed by the Corporation upon such conversion or exchange); plus |
(iv) | an amount equal to: |
(x) | 100% of the amount received in cash and the Fair Market Value of marketable securities or other property received by the Corporation or any of its Restricted Subsidiaries by means of (A) repurchases or redemptions of Restricted Investments or of Similar Business Investments made in reliance on clause (14) of the definition of Permitted Investment, in each case by the Person in which such Restricted Investment or Similar Business Investment was made, (B) proceeds realized upon the sale of Restricted Investments to an unaffiliated purchaser, or (C) payments on and repayments of loans or advances or other transfers of assets (including by way of dividend, distribution and the payment of interest) to the Corporation or any of its Restricted Subsidiaries (other than for reimbursement of tax payments), including dividends, distributions, loan repayment and payments of interest received from Unrestricted Subsidiaries, in each case under this clause (C) to the extent made in respect of a Restricted Investment which amount under this clause (x) was included in the calculation of the amount of Restricted Payments available; provided, however, that no amount will be included under this clause (x) to the extent it is already included in Consolidated Net Income; |
(y) | the Fair Market Value of the Investment (excluding any Investment referred to in clause (16) of the definition of Permitted Investment) in an Unrestricted Subsidiary that is being redesignated as a Restricted Subsidiary of the Corporation or upon the merger, amalgamation, arrangement or consolidation of |
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such Unrestricted Subsidiary with and into the Corporation or any of its Restricted Subsidiaries (valued in each case as provided in the definition of Investment) not to exceed the amount of Investments (excluding any Investment referred to in clause (16) of the definition of Permitted Investment) previously made by the Corporation or any of its Restricted Subsidiaries in such Unrestricted Subsidiary, which amount in each case under this clause (y) was included in the calculation of the amount of Restricted Payments available; or |
(z) | upon the release of any Guarantee that constituted a Restricted Investment when it was granted, the amount of the Restricted Investment made upon the granting of such Guarantee. |
The provisions of the preceding paragraph will not prohibit:
(1) | any Restricted Payment made by exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Corporation (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Corporation or any of its Restricted Subsidiaries unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that the Net Cash Proceeds from such sale of Capital Stock to the extent used for such Restricted Payment will be excluded from clause (c)(ii) of the preceding paragraph; |
(2) | any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations or Guarantor Subordinated Obligations made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Subordinated Obligations or Guarantor Subordinated Obligations, so long as such refinancing Subordinated Obligations or Guarantor Subordinated Obligations are permitted to be incurred pursuant to the covenant described under Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock and constitute Refinancing Indebtedness; |
(3) | any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Preferred Stock or Disqualified Stock of the Corporation or any of its Restricted Subsidiaries at the Stated Maturity thereof or made by exchange for or out of the proceeds of the substantially concurrent issuance or sale of Preferred Stock or Disqualified Stock of the Corporation or a Restricted Subsidiary, as the case may be, so long as such refinancing Preferred Stock or Disqualified Stock is permitted to be incurred pursuant to the covenant described under Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock and constitutes Refinancing Indebtedness; |
(4) | the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation (a) at a purchase price not greater than 101% of the principal amount of such Subordinated Obligation in the event of a Change of Control in accordance with provisions similar to the Repurchase at the Option of HoldersChange of Control covenant or (b) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to the Repurchase at the Option of HoldersAsset Disposition covenant; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Corporation has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer; |
(5) | any purchase or redemption of Subordinated Obligations or Guarantor Subordinated Obligations from Net Available Cash to the extent permitted under the Asset Disposition covenant; |
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(6) | (a) dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this covenant and (b) the redemption of Subordinated Obligations or Guarantor Subordinated Obligations within 60 days after the date on which notice of such redemption was given, if on the date of the giving of such notice of redemption, such redemption would have complied with this covenant; |
(7) | the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stock or equity appreciation rights of the Corporation held by any existing or former employees, officers or directors of the Corporation or any Subsidiary of the Corporation or their assigns, estates or heirs, pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or arrangement, provided that such redemptions or repurchases pursuant to this clause (7) will not exceed $2 million in the aggregate during any calendar year (with any unused amounts in any calendar year being carried over to the immediately succeeding calendar year, not to exceed $4 million in any calendar year), although such amount in any calendar year may be increased by an amount not to exceed: |
(a) | the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Corporation to existing or former employees, officers or directors of the Corporation or any of its Subsidiaries that occurs after the Issue Date, to the extent the Net Cash Proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments (provided that the Net Cash Proceeds from such sales or contributions will be excluded from clause (c)(ii) of the preceding paragraph); plus |
(b) | the cash proceeds of key man life insurance policies received by the Corporation or its Restricted Subsidiaries after the Issue Date; less |
(c) | the amount of any Restricted Payments previously made with the Net Cash Proceeds described in clauses (a) and (b) of this clause (7); |
(8) | the declaration and payment of dividends to holders of any class or series of Disqualified Stock or Preferred Stock issued in accordance with the terms of the Indenture to the extent such dividends are included in the definition of Consolidated Interest Expense; |
(9) | [reserved]; |
(10) | repurchases of Capital Stock deemed to occur upon the exercise of stock options, warrants, other rights to purchase Capital Stock or other convertible securities or similar securities if such Capital Stock represents a portion of the exercise price thereof (or withholding of Capital Stock to pay related withholding taxes with regard to the exercise of such stock options or the vesting of any such restricted stock, restricted stock units, deferred stock units or any similar securities); |
(11) | payments in lieu of the issuance of fractional shares of Capital Stock in connection with any transaction otherwise permitted under the Indenture; |
(12) | payments or distributions to holders of the Capital Stock of the Corporation or any of its Restricted Subsidiaries pursuant to appraisal or dissenter rights required under applicable law or pursuant to a court order in connection with any merger, amalgamation, arrangement, consolidation or sale, assignment, conveyance, transfer, lease or other disposition of assets; and |
(13) | other Restricted Payments in an aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (13) (as reduced by the Fair Market Value returned from any such Restricted Payments that constituted Restricted Investments) not to exceed $10 million. |
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provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (7), (8), and (13), no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
For purposes of determining compliance with this covenant, if a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described in clauses (1) through (13) above, the Corporation may, in its sole discretion, divide and classify (or later reclassify in whole or in part, from time to time in its sole discretion) such transaction in any manner that complies with this covenant.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of such Restricted Payment of the assets or securities proposed to be transferred or issued by the Corporation or any of its Restricted Subsidiaries, as the case may be, pursuant to such Restricted Payment.
The amount of all Restricted Payments paid in cash shall be its face amount. For purposes of determining compliance with any Canadian dollar-denominated restriction on Restricted Payments, the Canadian dollar-equivalent of a Restricted Payment denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date the Corporation or the Restricted Subsidiary, as the case may be, first commits to such Restricted Payment.
For purposes of designating any Restricted Subsidiary of the Corporation as an Unrestricted Subsidiary, all outstanding Investments by the Corporation and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Investments in an amount determined as set forth in the definition of Investment. Such designation will be permitted only if an Investment in such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in the Indenture.
Limitation on Liens
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or assets (including Capital Stock of Subsidiaries), whether owned on the Issue Date or acquired after that date, which Lien secures any Indebtedness, unless contemporaneously with the incurrence of such Liens:
(1) | in the case of Liens securing Subordinated Obligations or Guarantor Subordinated Obligations, the Notes and related Note Guarantees are secured by a Lien on such property or assets that is senior in priority to such Liens; or |
(2) | in all other cases, the Notes and related Note Guarantees are equally and rateably secured or are secured by a Lien on such property or assets that is senior in priority to such Liens. |
Any Lien created for the benefit of Holders pursuant to this covenant shall be automatically and unconditionally released and discharged upon the release and discharge of each of the Liens described in clauses (1) and (2) above.
Limitation on Restrictions on Distributions from Restricted Subsidiaries
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Corporation to:
(1) | pay dividends or make any other distributions on its Capital Stock to the Corporation or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Corporation or any of its Restricted Subsidiaries (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and the subordination of loans or advances made to the Corporation or any of its Restricted |
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Subsidiaries to other Indebtedness incurred by the Corporation or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness or other obligation); |
(2) | make any loans or advances to the Corporation or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Corporation or any of its Restricted Subsidiaries to other Indebtedness incurred by the Corporation or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or |
(3) | sell, lease or transfer any of its property or assets to the Corporation or any of its Restricted Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). |
The preceding provisions will not prohibit encumbrances or restrictions existing under or by reason of:
(a) | the Indenture, the Notes and the Note Guarantees; |
(b) | any agreement or instrument existing on the Issue Date (excluding the Indenture, the Notes and the Note Guarantees); |
(c) | (x) any agreement or other instrument of a Person acquired by the Corporation or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof) or (y) any agreement or other instrument with respect to a Restricted Subsidiary of the Corporation that was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary of the Corporation (but not created in contemplation thereof), in the case of (x) and (y) above, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or so designated, as applicable (including after-acquired property); |
(d) | any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or instrument referred to in clauses (a), (b) or (c) of this paragraph; provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of Senior Management, not materially more restrictive, when taken as a whole, than the encumbrances and restrictions contained in the agreements referred to in clauses (a), (b) or (c) of this paragraph on the Issue Date, the acquisition date or the date such Restricted Subsidiary became a Restricted Subsidiary of the Corporation or was merged into a Restricted Subsidiary of the Corporation, whichever is applicable; |
(e) | the Credit Facility of the Corporation or any Restricted Subsidiary permitted to be incurred under the Indenture; provided, that the applicable encumbrances and restrictions contained in the agreement or agreements governing such Credit Facility are not materially more restrictive, taken as a whole, than those contained in the Credit Facility as in effect on the Issue Date; |
(f) | (x) customary non-assignment or subletting provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder and (y) security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Corporation to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages; |
(g) | in the case of clause (3) of the first paragraph of this covenant, Liens permitted to be incurred under the provisions of the covenant described under Limitation on Liens that limit the right of the debtor to dispose of the assets securing such Indebtedness; |
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(h) | purchase money obligations, Capitalized Lease Obligations and Sale/Leaseback Transactions permitted under the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this covenant on the property so acquired; |
(i) | contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Corporation pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary; |
(j) | restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business; |
(k) | any customary provisions in joint venture, partnership, shareholders and limited liability company agreements relating to joint ventures that are not Restricted Subsidiaries of the Corporation and other similar agreements entered into in the ordinary course of business; |
(l) | any customary provisions (including non-assignment and non-transfer provisions) in leases, subleases or licenses (including licenses of intellectual property) and other agreements entered into by the Corporation or any of its Restricted Subsidiaries in the ordinary course of business; |
(m) | encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, order or permit; |
(n) | (x) other Indebtedness incurred or Preferred Stock issued by a Guarantor in accordance with Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock that, in the good faith judgment of Senior Management, are not materially more restrictive, taken as a whole, than those applicable to the Corporation in the Indenture on the Issue Date (which results in encumbrances or restrictions at a Restricted Subsidiary of the Corporation level comparable to those applicable to the Corporation in the Indenture) or (y) other Indebtedness incurred or Preferred Stock issued by a Non-Guarantor, in each case permitted to be incurred subsequent to the Issue Date pursuant to the provisions of the covenant described under Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that with respect to clause (y), such encumbrances or restrictions will not materially affect the Corporations ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management); |
(o) | any agreement with a governmental entity providing for developmental financing; |
(p) | agreements relating to Hedging Obligations permitted under clause (7) of the covenant described under Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; and |
(q) | easements entered into in the ordinary course of business. |
Limitation on Affiliate Transactions
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or asset or the rendering of any service) with any Affiliate of the Corporation (an Affiliate Transaction) involving aggregate consideration in excess of $30 million, unless:
(1) | the terms of such Affiliate Transaction are not materially less favourable to the Corporation or such Restricted Subsidiary, as the case may be, than those that could have been obtained by the Corporation or such Restricted Subsidiary in a comparable transaction at the time of such transaction in arms-length dealings with a Person that is not an Affiliate; and |
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(2) | in the event such Affiliate Transaction involves an aggregate consideration in excess of $40 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Corporation and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above). |
The preceding paragraph will not apply to:
(1) | any transaction between the Corporation and any of its Restricted Subsidiaries or between any Restricted Subsidiaries of the Corporation, including any Guarantees issued by the Corporation or a Restricted Subsidiary of the Corporation for the benefit of the Corporation or any of its Restricted Subsidiaries, as the case may be, in accordance with Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(2) | any Restricted Payment permitted to be made pursuant to the covenant described under Limitation on Restricted Payments and any Permitted Investments (other than the Investments described in subclause (14) of the definition of Permitted Investments); |
(3) | any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment, consulting or similar agreements and severance and other compensation arrangements, options to purchase Capital Stock of the Corporation, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers, directors, employees and consultants in the ordinary course of business or approved by the Board of Directors of the Corporation; |
(4) | the payment of reasonable and customary fees and reimbursements or employee benefits paid to, and indemnity provided on behalf of, directors, officers, employees or consultants of the Corporation or any of its Restricted Subsidiaries; |
(5) | loans or advances (or cancellations of loans or advances) to employees, officers or directors of the Corporation or any of its Subsidiaries in the ordinary course of business, in an aggregate amount not in excess of $500,000 at any one time outstanding; |
(6) | any agreement as in effect as of the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to the Holders in any material respect in the good faith judgment of Senior Management of the Corporation, when taken as a whole, than the terms of the applicable agreement in effect on the Issue Date; |
(7) | (i) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated, arranged or consolidated with the Corporation or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation, and (ii) any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders in the good faith judgment of Senior Management of the Corporation, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition, merger, amalgamation, arrangement or consolidation); |
(8) | transactions (i) with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services or any management services or support agreements, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of members of the Board of Directors or Senior Management of the Corporation, such transactions or agreements are on terms that are not materially less favourable, when taken as a whole, to the Corporation or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions or agreements in a comparable |
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transaction or agreement by the Corporation or such Restricted Subsidiary with an unrelated Person; and (ii) for the provision of services to joint ventures in the ordinary course of the business of the Corporation and its Restricted Subsidiaries and otherwise in compliance with the terms of the Indenture, and amendments, modifications, supplements, extensions, and revisions thereto or waivers thereof, which are fair to the Corporation and its Restricted Subsidiaries, taken as a whole, in the good faith judgment of Senior Management; |
(9) | any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Corporation and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Corporation (and the performance of such agreements); |
(10) | any transaction with a Person that would not constitute an Affiliate Transaction if the Corporation or any of its Restricted Subsidiaries did not own any equity interest in or otherwise control such Person; |
(11) | transactions between the Corporation or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Corporation or any of its Restricted Subsidiaries; provided that such director abstains from voting as a director of the Corporation or such Restricted Subsidiary, as the case may be, on any matter involving such other Person; |
(12) | any merger, amalgamation, arrangement, consolidation or other reorganization of the Corporation with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating the Corporation in a new jurisdiction; |
(13) | the entering into of a tax sharing agreement, or payments pursuant thereto, between the Corporation and one or more Subsidiaries or between Subsidiaries; |
(14) | any employment, deferred compensation, consulting, non-competition, confidentiality or similar agreement entered into by the Corporation or any of its Restricted Subsidiaries with its employees, directors, officers or consultants in the ordinary course of business and payments and other benefits (including bonus, retirement, severance, health, stock option and other benefit plans) pursuant thereto; |
(15) | pledges of Capital Stock or Indebtedness of Unrestricted Subsidiaries and Joint Ventures; and |
(16) | transactions in which the Corporation or any of its Restricted Subsidiaries delivers to the Indenture Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Corporation or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favourable, when taken as a whole, than those that might reasonably have been obtained by the Corporation or such Restricted Subsidiary in a comparable transaction at such time on an arms length basis from a Person that is not an Affiliate. |
Reports
The Indenture will provide that so long as any Notes are outstanding, the Corporation will furnish without cost to each Holder and deliver to the Indenture Trustee:
(1) | on or prior to the later of (A) 90 days after the end of each fiscal year of the Corporation or (B) the date on which the Corporation is required to file (after giving effect to any available extension) such information pursuant to Canadian Securities Legislation, the Annual MD&A and audited financial statements in respect of such fiscal year that the Corporation would be required to file as a reporting issuer under Canadian Securities Legislation; and |
(2) | on or prior to the later of (A) 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Corporation or (B) the date on which the Corporation is required to file (after |
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giving effect to any available extension) such information pursuant to Canadian Securities Legislation, the quarterly MD&A and unaudited quarterly financial statements in respect of the relevant interim period that the Corporation would be required to file as a reporting issuer under Canadian Securities Legislation. |
The Corporation shall (i) schedule and participate in quarterly conference calls to discuss its results of operations and (ii) use commercially reasonable efforts to provide any Rating Agency that maintains a public rating of the Notes with information on a periodic basis as such Rating Agency shall reasonably require in order to maintain public ratings of the Notes. With respect to the reports referred to in clauses (1) and (2) above, so long as the Corporation is a reporting issuer (or its equivalent) in any province or territory of Canada, the Corporation shall file such reports electronically on the Canadian Securities Administrators SEDAR website (or any successor system), which shall satisfy the Corporations obligations to furnish such materials to the Holders and deliver such materials to the Indenture Trustee. In the event that the Corporation ceases to be a reporting issuer (or its equivalent) in all provinces and territories of Canada, the Corporation will be required to maintain a website to which Holders, prospective investors and securities analysts are given access, on which the Corporation makes available such reports and provides details about how to access on a toll-free basis the quarterly conference calls described above.
Notwithstanding anything herein to the contrary, the Corporation will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (4) under Events of Default until 90 days after the date any report hereunder is due to be furnished to the Holders and delivered to the Indenture Trustee in accordance with the first paragraph of this covenant Reports.
To the extent any information is not provided as specified in this section Reports and such information is subsequently provided, the Corporation will be deemed to have satisfied its obligations with respect thereto at such time, and any Default or Event of Default with respect thereto shall be deemed to have been cured.
Delivery of reports, information and documents to the Indenture Trustee is for informational purposes only, and its receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Corporations, any Guarantors or any other Persons compliance with any of its covenants under the Indenture or the Notes (as to which the Indenture Trustee is entitled to rely exclusively on the Officers Certificates delivered pursuant to the Indenture).
The Indenture Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Corporations, any Guarantors or any other Persons compliance with the covenants described herein or with respect to any reports or other documents filed under the Indenture.
Merger and Consolidation
The Corporation will not merge with or into, or amalgamate or consolidate with, or wind up into, in each case including by way of an arrangement, (whether or not the Corporation is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person unless:
(1) | the continuing, resulting, surviving or transferee Person (the Successor Corporation) is a Person (other than an individual) organized and existing under the laws of Canada, any province or territory thereof, or of the United States, any state or territory thereof or the District of Columbia; |
(2) | the Successor Corporation (if other than the Corporation) expressly assumes all of the obligations of the Corporation under the Notes and the Indenture pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Indenture Trustee; |
(3) | immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; |
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(4) | immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period, |
(a) | the Successor Corporation would be able to incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of the Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock covenant; or |
(b) | the Consolidated Coverage Ratio for the Successor Corporation and its Restricted Subsidiaries would be greater than such ratio for the Corporation and its Restricted Subsidiaries immediately prior to such transaction; |
(5) | if the Corporation is not the surviving corporation, each Guarantor (unless it is the other party to the transactions above, in which case clause (1) of the following paragraph shall apply) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Successor Corporations obligations under the Indenture and the Notes; and |
(6) | the Corporation shall have delivered to the Indenture Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, arrangement, winding up or disposition, and such supplemental indenture, if any, comply with the Indenture. |
The Successor Corporation will succeed to, and be substituted for, the Corporation under the Indenture and the Notes. Notwithstanding the clauses (3) and (4) of the preceding paragraph,
(1) | any Restricted Subsidiary of the Corporation may consolidate with, amalgamate with, merge with or into, wind up into or transfer all or part of its properties and assets to (in each case including by way of an arrangement) the Corporation so long as no Capital Stock of the Restricted Subsidiary of the Corporation is distributed to any Person other than the Corporation; and |
(2) | the Corporation may consolidate with, amalgamate with, merge with or into or wind up into (in each case including by way of an arrangement) an Affiliate of the Corporation for the purpose of reincorporating the Corporation in a province or territory of Canada or in a state or territory of the United States or the District of Columbia. |
In addition, the Corporation will not permit any Guarantor to merge with or into, or amalgamate or consolidate with, or wind up into, in each case including by way of an arrangement (whether or not the Guarantor is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Corporation or another Guarantor) unless:
(3) | immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and |
(4) | either: |
(a) | the resulting, surviving or transferee Person (the Successor Guarantor) is a Person (other than an individual) organized and existing under the same laws as the Guarantor was organized under immediately prior to such transaction, the laws of Canada, any province or territory thereof, or of the United States, any state or territory thereof or the District of Columbia; the Successor Guarantor, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under the Indenture, the Notes and its Note Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Indenture Trustee; and the Corporation will have delivered to the Indenture Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, arrangement, merger, winding up or disposition and such supplemental indenture (if any) comply with the Indenture; or |
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(b) | the transaction does not violate the covenant described under Repurchase at the Option of HoldersAsset Disposition (it being understood that only such portion of the Net Available Cash as is required to be applied on the date of such transaction in accordance with the terms of the Indenture needs to be applied in accordance therewith at such time). |
The Successor Guarantor will succeed to, and be substituted for, such Guarantor under the Indenture and the Note Guarantee of such Guarantor.
Notwithstanding the foregoing, any Guarantor may (i) merge with or into, or amalgamate or consolidate with, or wind up into, in each case including by way of an arrangement (whether or not the Guarantor is the surviving corporation), or transfer all or part of its properties and assets to, any other Guarantor or the Corporation or (ii) merge with or into, or amalgamate or consolidate with, or wind up into, in each case including by way of an arrangement (whether or not the Guarantor is the surviving corporation), a Restricted Subsidiary of the Corporation for the purpose of reincorporating the Guarantor in Canada or any province or territory of Canada, any state or territory of the United States or the District of Columbia, British Virgin Islands, Bahamas, Barbados, any member state of the European Union or any other jurisdiction in which such Guarantor is organized at the time of such transaction, so long as (in the case of this clause (ii)) the amount of Indebtedness of such Guarantor and its Subsidiaries is not increased thereby.
For purposes of this covenant, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Corporation, which properties and assets, if held by the Corporation instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Corporation on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Corporation.
Although there is a limited body of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve all or substantially all of the property or assets of a Person.
Upon the completion of any transaction described above, the Corporation and the applicable Guarantors will be released from their obligations under the Indenture, the Notes and the Note Guarantees, as applicable, and the Successor Corporation and the Successor Guarantors, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Corporation or the applicable Guarantors, as applicable, under the Indenture, the Notes and the Note Guarantees; provided that, in the case of a lease of all or substantially all its assets, the Corporation will not be released from the obligation to pay the principal of and interest on the Notes, and a Guarantor will not be released from its obligations under its Note Guarantee.
Future Guarantors
The Corporation will cause each Person that becomes a Wholly-Owned Restricted Subsidiary, other than any Immaterial Subsidiary, after the Issue Date, and may at its option cause any other Restricted Subsidiary, to execute and deliver to the Indenture Trustee a supplemental indenture to the Indenture pursuant to which such Restricted Subsidiary will, subject to the second succeeding paragraph, irrevocably and unconditionally guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest in respect of the Notes and all other obligations under the Indenture on a senior second lien secured basis.
Each Restricted Subsidiary that becomes a Guarantor will also, to the extent such Guarantor is required to grant security in favour of the Senior Agent, become a party to the applicable Collateral Documents and shall, as promptly as practicable, execute and/or deliver such security instruments, financing statements, certificates, and opinions of counsel (to the extent, and substantially in the form, delivered on the Issue Date (but of no greater scope)) as may be necessary to vest in the Collateral Agent a perfected Second Ranking Lien in all personal property that constitutes Collateral for the Notes or the Note Guarantees and as may be necessary to have such Property added to the Collateral as required under the Collateral Documents and the Indenture, and thereupon all provisions of the Indenture relating to the Collateral shall be deemed to relate to such Property to the same extent and with the same force and effect.
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A Restricted Subsidiarys Note Guarantee and Collateral Documents shall be released in accordance with the provisions of the Indenture described under Note Guarantees.
Future Note Guarantees provided by Guarantors organized in jurisdictions other than Canada and the United States may be Limited Guarantees if the Board of Directors or Senior Management, in consultation with local counsel, makes a reasonable determination that such limitations are required due to legal requirements within such jurisdiction, provided that if any such Guarantor provides a guarantee in favour of the Senior Agent and the Senior Lenders under the Credit Facility that are broader in scope than its Limited Guarantee, such Guarantor shall also guarantee the Notes to the same extent pursuant to its Note Guarantee.
Limitation on Business Activities
The Corporation will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than a Similar Business, except to such extent as would not be material to the Corporation and its Restricted Subsidiaries taken as a whole.
Events of Default
Each of the following is an Event of Default:
(1) | default in any payment of interest on any Note when due, continued for 30 days; |
(2) | default in the payment of principal of or premium, if any, on any Note when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise; |
(3) | failure by the Corporation or any Guarantor to comply with its obligations under Certain CovenantsMerger and Consolidation; |
(4) | failure by the Corporation or any Guarantor to comply for 60 days after notice as provided below with its other agreements contained in the Indenture or the Notes (other than a failure that is the subject of the foregoing clause (1), (2), or (3)); |
(5) | default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Corporation or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Corporation or any of its Restricted Subsidiaries), other than Non-Recourse Debt and other than Indebtedness owed to the Corporation or its Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default: |
(a) | is caused by a failure to pay the principal of such Indebtedness at its Stated Maturity (after giving effect to any applicable grace period provided in such Indebtedness) (payment default); or |
(b) | results in the acceleration of such Indebtedness prior to its maturity (the cross acceleration provision); |
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated and remains unpaid, aggregates $25 million or more (or its foreign currency equivalent);
(6) | failure by the Corporation or any Significant Subsidiary or any group of Restricted Subsidiaries of the Corporation that, taken together, would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $20 million (or its foreign currency equivalent) (net of any amounts for which an insurance Corporation is liable), which judgments are not paid, discharged or stayed for a period of 60 days or more after such judgment becomes final and non-appealable (the judgment default provision); |
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(7) | certain events of bankruptcy, insolvency or reorganization of the Corporation or a Significant Subsidiary or any group of Restricted Subsidiaries of the Corporation that, taken together, would constitute a Significant Subsidiary (the bankruptcy provisions); or |
(8) | any Note Guarantee of a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a final and non-appealable judicial proceeding or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, denies or disaffirms its obligations under the Indenture or its Note Guarantee; or |
(9) | with respect to any Collateral having a fair market value in excess of $5 million, individually or in the aggregate, (i) the failure of the security interest with respect to such Collateral under the Collateral Documents, at any time, to be in full force and effect for any reason other than in accordance with the terms of the Collateral Documents and the terms of this Indenture (it being understood that in no event shall any security or filings be required if such security or filings are not being granted or made in favour of the Senior Agent), or the Intercreditor Agreement, as applicable, and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture if such failure continues for 60 days or more or (ii) the assertion by the Corporation or any Guarantor, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable, except in each case for the failure or loss of perfection resulting from the failure of the Collateral Agent to make filings, renewals and continuations (or other equivalent filings) which are required to be made. |
However, a default under clause (4) of this paragraph will not constitute an Event of Default until the Indenture Trustee (acting at the direction of the Holders of at least 25% in principal amount of the then outstanding Notes) or the Holders of at least 25% in principal amount of the then outstanding Notes notify the Corporation of the default and the Corporation does not cure such default within the time specified in clause (4) of this paragraph after receipt of such notice.
If an Event of Default (other than an Event of Default described in clause (7) above with respect to the Corporation) occurs and is continuing, the Indenture Trustee (acting at the direction of the Holders of at least 25% in principal amount of the then outstanding Notes) by written notice to the Corporation, specifying the Event of Default, or the Holders of at least 25% in principal amount of the then outstanding Notes by notice to the Corporation and the Indenture Trustee, may, and the Indenture Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable.
In the event of a declaration of acceleration of the Notes because an Event of Default described in clause (5) under Events of Default has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the default triggering such Event of Default pursuant to clause (5) shall be remedied or cured by the Corporation or any of its Restricted Subsidiaries or waived by the holders of the relevant Indebtedness within 20 days after the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived. Notwithstanding the foregoing, if an Event of Default described in clause (7) above with respect to the Corporation occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Indenture Trustee or any Holders. The Holders of a majority in principal amount of the outstanding Notes may waive all past defaults (except with respect to nonpayment of principal, premium or interest) and rescind any such acceleration with respect to the Notes and its consequences if rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder may pursue any remedy with respect to the Indenture or the Notes unless:
(1) | such Holder has previously given the Indenture Trustee notice that an Event of Default is continuing; |
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(2) | Holders of at least 25% in principal amount of the then outstanding Notes have requested the Indenture Trustee to pursue the remedy; |
(3) | such Holders have offered the Indenture Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense; |
(4) | the Indenture Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and |
(5) | the Holders of a majority in principal amount of the then outstanding Notes have not given the Indenture Trustee a direction that, in the opinion of the Indenture Trustee, is inconsistent with such request within such 60-day period. |
Subject to certain restrictions, the Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee or of exercising any trust or power conferred on the Indenture Trustee. The Indenture provides that in the event an Event of Default has occurred and is continuing, the Indenture Trustee will be required in the exercise of its powers to use the degree of care that a prudent person would use under the circumstances in the conduct of its own affairs. The Indenture Trustee, however, may refuse to follow any direction that conflicts with law or the Intercreditor Agreement, the Indenture, the Notes or any Note Guarantee, or that it determines in good faith is unduly prejudicial to the rights of any other Holder or that would involve that Trustee in personal liability.
Subject to the provisions of the Indenture relating to the duties of the Indenture Trustee, if an Event of Default occurs and is continuing, the Indenture Trustee will be under no obligation to exercise any of the rights or powers under the Indenture, the Notes and the Note Guarantees at the request or direction of any of the Holders unless such Holders have offered to the Indenture Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense.
The Indenture will provide that if a Default or Event of Default occurs and is continuing and is actually known to a responsible officer of the Indenture Trustee, the Indenture Trustee will mail to each Holder notice of the Default within 90 days after it occurs. Except in the case of a default in the payment of principal of, premium, if any, or interest on any Note, the Indenture Trustee may withhold from the Holders notice of any continuing Default or Event of Default if the Indenture Trustee determines in good faith that withholding the notice is in the interests of the Holders. In addition, the Corporation is required to deliver to the Indenture Trustee, within 90 days after the end of each fiscal year ending after the Issue Date, a certificate indicating whether the signers thereof know of any Default or Event of Default that occurred during the previous year. The Corporation also is required to deliver to the Indenture Trustee, within 30 Business Days after the occurrence thereof, written notice of any events which would constitute a Default or Event of Default, their status and what action the Corporation is taking or proposing to take in respect thereof.
If a Default or Event of Default is deemed to occur solely because a Default or Event of Default (the Initial Default) already existed, and such Initial Default is subsequently cured and is not continuing, the Default or Event of Default resulting solely because the Initial Default existed shall be deemed cured, and will be deemed annulled, waived and rescinded without any further action required.
Amendments and Waivers
Except as provided in the next two succeeding paragraphs, the Indenture, the Notes, the Note Guarantees and the Collateral Documents may be amended or supplemented with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and, subject to certain exceptions, any past default or compliance with any provisions may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). However, without the consent of each Holder affected thereby, no amendment, supplement or waiver may, among other things:
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(1) | reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver; |
(2) | reduce the stated rate of interest or extend the stated time for payment of interest on any Note; |
(3) | reduce the principal of or extend the Stated Maturity of any Note; |
(4) | waive an Event of Default arising from a failure to pay the principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to an Event of Default arising from such a failure to pay principal, premium or interest, and a waiver of the Event of Default that resulted from such acceleration); |
(5) | reduce the premium payable upon the redemption or repurchase of any Note or change the time at which any Note may be redeemed as described above under Optional Redemption, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (except amendments to the definitions of Change of Control or Asset Dispositions, or changes to any notice provisions, which may be amended with the consent of the Holders of a majority in principal amount of the Notes then outstanding); |
(6) | make any Note payable in money other than that stated in such Note; |
(7) | impair the right of any Holder to receive payment of principal of, premium, if any, or interest on such Holders Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holders Notes; |
(8) | make any change in the amendment or waiver provisions which require each Holders consent; or |
(9) | modify the Note Guarantees in any manner adverse to the Holders. |
Notwithstanding the foregoing, without the consent of any Holder, the Corporation, the Guarantors and the Indenture Trustee may amend the Indenture, the Notes, the Note Guarantees and the Collateral Documents to:
(1) | cure any ambiguity, omission, defect or inconsistency; |
(2) | provide for the issuance of Additional Notes, or notes of any additional series, in compliance with Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(3) | provide for the assumption by a successor of the obligations of the Corporation or any Guarantor under the Indenture, the Notes or the Note Guarantees in accordance with Certain CovenantsMerger and Consolidation; |
(4) | provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes; |
(5) | comply with the rules of any applicable depository; |
(6) | (i) add Guarantors with respect to the Notes or (ii) release a Guarantor from its obligations under its Note Guarantee or the Indenture in accordance with the applicable provisions of the Indenture; |
(7) | add additional assets as Collateral or enter into additional or supplemental Collateral Documents to secure the Notes and Note Guarantees; |
(8) | add covenants of the Corporation or its Restricted Subsidiaries or Events of Default for the benefit of Holders, or make changes that would provide additional rights to the Holders, or surrender any right or power conferred upon the Corporation or any Guarantor; |
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(9) | make any change that does not adversely affect the legal rights under the Indenture of any Holder; |
(10) | evidence and provide for the acceptance of an appointment under the Indenture of a successor trustee, provided that the successor trustee is otherwise qualified and eligible to act as such under the terms of the Indenture; |
(11) | conform the text of the Indenture, the Notes or the Note Guarantees to any provision of this Description of Notes to the extent that such provision in this Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Notes or the Note Guarantees, as set forth in an Officers Certificate; |
(12) | make any amendment to the provisions of the Indenture relating to the transfer and legending of Notes as permitted by the Indenture, including, without limitation, to facilitate the issuance and administration of the Notes or, if incurred in compliance with the Indenture, Additional Notes or notes of any additional series; provided, however, that (A) compliance with the Indenture as so amended would not result in Notes being transferred in violation of Canadian Securities Legislation or any other applicable securities laws and regulations and (B) such amendment does not materially and adversely affect the rights of Holders to transfer Notes; or |
(13) | make any change to conform to the requirements of the U.S. Trust Indenture Act. |
The consent of the Holders will not be necessary under the Indenture to approve the particular form of any proposed amendment, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment or supplement. A consent to any amendment, supplement or waiver under the Indenture by any Holder given in connection with a tender of such Holders Notes will not be rendered invalid by such tender. After an amendment, supplement or waiver under the Indenture becomes effective, the Corporation is required to give to the Holders a written notice briefly describing such amendment, supplement or waiver. However, the failure to give such notice to the Holders, or any defect in such notice will not impair or affect the validity of the amendment, supplement or waiver.
Defeasance
The Corporation may, at its option and at any time, elect to have all of its obligations and all of the obligations of the Guarantors discharged with respect to the outstanding Notes issued under the Indenture (legal defeasance) except for:
(1) | the rights of Holders to receive payments in respect of the principal of, premium, if any, or interest on such Notes when such payments are due, solely out of the trust referred to below; |
(2) | the Corporations obligations with respect to the Notes concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for Note payments held in trust; |
(3) | the rights, powers, trusts, duties and immunities of the Indenture Trustee, and the Corporations obligations in connection therewith; and |
(4) | the legal defeasance provisions of the Indenture. |
If the Corporation exercises the legal defeasance option, the Note Guarantees in effect at such time will terminate.
The Corporation at any time may terminate its obligations and the obligations of its Restricted Subsidiaries described under Repurchase at the Option of Holders and under the covenants described under Certain Covenants (other than Merger and Consolidation with respect to the Corporation), the operation of the cross-default upon a payment default, cross acceleration provisions, the bankruptcy provisions with respect to Significant Subsidiaries, the judgment default provision described under Events of Default above and the limitations contained in clause (4) under Certain CovenantsMerger and Consolidation above (covenant defeasance).
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If the Corporation exercises the covenant defeasance option, the Note Guarantees in effect at such time will terminate.
The Corporation may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Corporation exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect to the Notes. If the Corporation exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in clause (3) (only with respect to the failure of the Corporation to comply with clause (4) under Certain CovenantsMerger and Consolidation above), (4) (only with respect to covenants that are released as a result of such covenant defeasance), (5) (only with respect to covenants that are released as a result of such covenant defeasance), (6) or (7) (with respect only to Significant Subsidiaries or any group of Restricted Subsidiaries of the Corporation that, taken together would constitute a Significant Subsidiary) or (9) or (10) under Events of Default above.
In order to exercise either legal defeasance or covenant defeasance under the Indenture:
(1) | the Corporation must irrevocably deposit with the Indenture Trustee, in trust, for the benefit of the Holders, cash in Canadian dollars, Government Securities, or a combination thereof, in amounts as will be sufficient, in the opinion of an Independent Financial Advisor, without consideration of any reinvestment of interest, to pay the principal of, and premium, if any, and interest due on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Corporation must specify whether the Notes are being defeased to maturity or to a particular redemption date; |
(2) | in the case of legal defeasance or covenant defeasance, the Corporation has delivered to the Indenture Trustee an opinion of counsel qualified to practice in Canada (such counsel acceptable to the Indenture Trustee, acting reasonably) or a ruling from the Canada Revenue Agency (or successor agency) to the effect that holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for Canadian federal, provincial and territorial income tax purposes as a result of such legal defeasance or covenant defeasance, as applicable, and will only be subject to Canadian federal, provincial and territorial income tax on the same amounts, in the same manner and at the same times as would have been the case had if such legal defeasance or covenant defeasance, as applicable, had not occurred; |
(3) | such legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the Indenture) to which the Corporation or any of its Restricted Subsidiaries is a party or by which the Corporation or any of its Restricted Subsidiaries is bound; |
(4) | no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith); |
(5) | the Corporation has delivered to the Indenture Trustee an Officers Certificate stating that the deposit was not made by the Corporation with the intent of defeating, hindering, delaying or defrauding creditors of the Corporation, any Guarantor or others; |
(6) | the Corporation has delivered to the Indenture Trustee an Officers Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the legal defeasance or the covenant defeasance, as the case may be, have been complied with; and |
(7) | the Corporation has delivered irrevocable instructions to the Indenture Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officers Certificate referred to in clause (5) above). |
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Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect as to all Notes issued thereunder, when either:
(1) | all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for which payment money has been deposited in trust and thereafter repaid to the Corporation, have been delivered to the Indenture Trustee for cancellation; or |
(2) |
(a) | all Notes not theretofore delivered to the Indenture Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise, will become due and payable within one year or may be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the Corporation, and the Corporation or any Guarantor has irrevocably deposited or caused to be deposited with the Indenture Trustee, as trust funds in trust solely for the benefit of the Holders, cash in Canadian dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of an Independent Financial Advisor, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Indenture Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; |
(b) | no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit (other than a Default or an Event of Default resulting from borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing), and the deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture) to which the Corporation or any Guarantor is a party or by which the Corporation or any Guarantor is bound; |
(c) | the Corporation has paid or caused to be paid all sums payable by it under the Indenture; and |
(d) | the Corporation has delivered irrevocable instructions to the Indenture Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be. |
In addition, the Corporation must deliver an Officers Certificate and an Opinion of Counsel to the Indenture Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
No Personal Liability of Directors, Officers, Employees and Shareholders
No past, present or future director, officer, employee, incorporator, member, manager, partner or shareholder of the Corporation or any Guarantor shall have any liability for any obligations of the Corporation or any Guarantor under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. This waiver and release are part of the consideration for issuance of the Notes.
Notices
Notice or communication mailed to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to such Holder at such Holders address as it appears on the registration books of the Registrar or by such other delivery system as the Trustee deems acceptable and shall be deemed to be sufficiently given if so sent within the time prescribed. Failure to send a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Any
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written notice or communication that is delivered in person or mailed by first-class mail to the designated address will be deemed duly given, regardless of whether the addressee receives such notice.
Notwithstanding any other provision of the Indenture or any Note, where the Indenture or any Note provides for notice of any event (including any notice of redemption) to any Holder of an interest in a global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to CDS or any other applicable depositary for such Note (or its designee) according to the applicable procedures of CDS or such depositary.
Governing Law
The Indenture will provide that it, the Notes and any Note Guarantee will be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
Certain Definitions
Set forth below are certain defined terms used in the Indenture. For purposes of the Indenture, unless otherwise specifically indicated, the term consolidated with respect to any Person refers to such Person on a consolidated basis in accordance with IFRS, but excluding from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
Acquired Indebtedness means, with respect to any specified Person, Indebtedness (a) of such Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Corporation, (b) assumed in connection with the acquisition of assets from such Person, in each case whether or not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Corporation or such acquisition, or (c) secured by a Lien encumbering any asset acquired by such specified Person. Acquired Indebtedness shall be deemed to have been incurred, with respect to clause (a) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary of the Corporation and, with respect to clauses (b) and (c) of the preceding sentence, on the date of consummation of such acquisition of assets.
Additional Assets means:
(1) | any property, plant, equipment or other asset (excluding working capital or current assets) to be used by the Corporation or any of its Restricted Subsidiaries in a Similar Business; or |
(2) | the Capital Stock of a Person that becomes a Restricted Subsidiary of the Corporation as a result of the acquisition of such Capital Stock by the Corporation or its Restricted Subsidiary; or |
(3) | the Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Corporation; or |
(4) | Similar Business Investments (a) to the extent of Net Available Cash arising from Asset Dispositions of Capital Stock of an Unrestricted Subsidiary or Joint Venture, or of Capital Stock of a Restricted Subsidiary that derives all or substantially all of its value from the Corporations interest in an Unrestricted Subsidiary or Joint Venture, or (b) otherwise in an amount, together with all other Similar Business Investments which are treated as a use of Net Available Cash pursuant to this clause (4), not to exceed 15% of Total Assets at the time of such Investment; |
provided, however, that, in the case of clauses (2) and (3), such Restricted Subsidiary is primarily engaged in a Similar Business.
Additional Notes means Notes (other than the Initial Notes) issued from time to time under the Indenture in accordance with the terms thereof, of the same series as the Initial Notes and having terms and conditions identical to those of the applicable Initial Notes other than the issue date, the issue price and the first interest payment date, whether or not they bear the same CUSIP or ISIN number, as set out in a supplemental indenture.
Affiliate of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control
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(including, with correlative meanings, the terms controlling, controlled by and under common control with) when used with respect to any Person means possession, directly or indirectly, of the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Ambatovy Joint Venture means the joint venture in respect of the Ambatovy Project carried on by Ambatovy Minerals S.A. and Dynatec Madagascar S.A. and the respective successors and assigns from time to time.
Ambatovy Project means the assets, business and operations consisting of the Ambatovy project in Madagascar.
Asset Disposition means (A) any sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, other disposition, or a series of related sales, leases, transfers, or dispositions that are part of a common plan, of shares of Capital Stock of a Subsidiary or Joint Venture (other than directors qualifying shares and shares issued to foreign nationals as required by law), property or other assets (each referred to for the purposes of this definition as a disposition) by the Corporation or any of its Restricted Subsidiaries, including any disposition by means of a merger, amalgamation, consolidation, arrangement or similar transaction, and (B) any issuance of shares of Capital Stock (other than directors qualifying shares and shares issued to foreign nationals as required by law) by a Restricted Subsidiary of the Corporation.
Notwithstanding the preceding, the following items shall not be deemed to be Asset Dispositions:
(1) | a disposition of assets by a Restricted Subsidiary to the Corporation or by the Corporation or any of its Restricted Subsidiaries to a Restricted Subsidiary of the Corporation; |
(2) | a disposition of Cash Equivalents or Investment Grade Securities; |
(3) | a disposition of inventory or other assets in the ordinary course of business or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business; |
(4) | a disposition of obsolete, damaged or worn out property or equipment, or property or equipment that is no longer used or useful in the conduct of the business of the Corporation and its Restricted Subsidiaries; |
(5) | the disposition of all or substantially all of the assets of the Corporation in a manner permitted pursuant to Certain CovenantsMerger and Consolidation or any disposition that constitutes a Change of Control pursuant to the Indenture; |
(6) | an issuance of Capital Stock by a Restricted Subsidiary of the Corporation to the Corporation or to a Restricted Subsidiary of the Corporation; |
(7) | any Permitted Investment or Restricted Payment made in compliance with Certain CovenantsLimitation on Restricted Payments; |
(8) | dispositions of assets in a single transaction or a series of related transactions with an aggregate Fair Market Value of less than $15 million; |
(9) | the creation of a Permitted Lien and dispositions in connection with Permitted Liens; |
(10) | the issuance by a Restricted Subsidiary of the Corporation of Preferred Stock or Disqualified Stock that is permitted by the covenant described under Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(11) | the licensing or sublicensing of intellectual property or other general intangibles and licenses, leases or subleases of other property in the ordinary course of business which do not materially interfere with the business of the Corporation and its Restricted Subsidiaries; |
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(12) | foreclosure on or expropriation of assets; |
(13) | any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; |
(14) | the unwinding of any Hedging Obligations; |
(15) | the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims; |
(16) | dispositions to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; |
(17) | the lease, assignment, sub-lease, license or sub-license of any real or personal property in the ordinary course of business; |
(18) | dispositions in connection with royalty or precious metals stream or similar transactions that are customary in the mining business (as determined in good faith by Senior Management); |
(19) | dispositions of interests in any oil and gas property to a Person in exchange for, or as consideration for, drilling and other development activities conducted, or to be conducted, by such Person on such property; |
(20) | any exchange of assets for other assets (which other assets may, in whole or in part, include cash, Cash Equivalents, Capital Stock or any securities convertible into, or exercisable or exchangeable for, Capital Stock, but which assets may not include any Indebtedness) issued by or related to a Similar Business if such other assets are of comparable or greater market value or usefulness to the business of the Corporation and its Restricted Subsidiaries, taken as a whole, compared with the assets being exchanged, which in the event of an exchange of assets with a Fair Market Value in excess of (a) $15 million shall be evidenced by an Officers Certificate and (b) $25 million shall be set forth in a resolution approved by at least a majority of the members of the Board of Directors of the Corporation; provided that the Corporation shall apply any cash or Cash Equivalents received in any such exchange of assets as described in the second paragraph under Repurchase at the option of holdersAsset Disposition; and |
(21) | any disposition of the Corporations interests (including Capital Stock and any other investments) held by it in MMI. |
Attributable Indebtedness in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate implicit in the transaction) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended), determined in accordance with IFRS; provided, however, that if such Sale/Leaseback Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capitalized Lease Obligations.
Average Life means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.
Board of Directors means:
(1) | with respect to a corporation, the board of directors of the corporation or (other than for purposes of determining Change of Control) a committee of the Board of Directors; |
(2) | with respect to a partnership, the board of directors of the general partner of the partnership; and |
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(3) | with respect to any other Person, the board or committee of such Person serving a similar function. |
Business Day means each day that is not a Saturday, Sunday or other day on which banking institutions in Toronto, Ontario are authorized or required by law to close.
Canadian Securities Legislation means all applicable securities laws in each of the provinces and territories of Canada, including, without limitation, the Province of Ontario, and the respective regulations and rules under such laws together with applicable published rules, policy statements, blanket orders, instruments, rulings and notices of the regulatory authorities in such provinces or territories.
Capital Stock of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible or exchangeable into such equity.
Capitalized Lease Obligations means an obligation that would have been required to be classified and accounted for as a finance lease for financial reporting purposes in accordance with IFRS as in effect on the Issue Date. The amount of Indebtedness represented by such obligation will be the amount of the liability for such obligation at the time any determination thereof is to be made as determined in accordance with IFRS, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
Cash Equivalents means:
(1) | Canadian dollars, U.S. dollars or, in the case of any Restricted Subsidiary, such other local currencies held by it from time to time in the ordinary course of business; |
(2) | securities issued or directly and fully Guaranteed or insured by the Canadian or U.S. government or any agency or instrumentality of Canada or the United States (provided that the full faith and credit of Canada or the United States, as applicable, is pledged in support thereof), having maturities of not more than one year from the date of acquisition; |
(3) | marketable general obligations issued by any province of Canada or state of the United States or any political subdivision of any such province or state or any public instrumentality thereof maturing within one year from the date of acquisition and, at the time of acquisition, having a credit rating of A or better from either Standard & Poors Ratings Group, Inc. or Moodys Investors Service, Inc., or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments; |
(4) | certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers acceptances having maturities of not more than one year from the date of acquisition thereof issued by any commercial bank the long-term debt of which is rated at the time of acquisition thereof at least A or the equivalent thereof by Standard & Poors Ratings Group, Inc., or A or the equivalent thereof by Moodys Investors Service, Inc., or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and having combined capital and surplus in excess of $500.0 million; |
(5) | repurchase obligations with a term of not more than 365 days for underlying securities of the types described in clauses (2), (3) and (4) above entered into with any bank meeting the qualifications specified in clause (4) above; |
(6) | commercial paper rated at the time of acquisition thereof at least A-2 or the equivalent thereof by Standard & Poors Ratings Group, Inc. or P-2 or the equivalent thereof by Moodys Investors Service, Inc., or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and in any case maturing within one year after the date of acquisition thereof; and |
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(7) | interests in any investment Corporation or money market fund which invests 95% or more of its assets in instruments of the type specified in clauses (1) through (6) above. |
Cash Management Agreements means any agreement providing for treasury, depository, purchasing card or cash management services, including in connection with any automated clearing house transfer of funds or any similar transaction entered into in the ordinary course of business.
Change of Control means:
(1) | any Person or group or Persons acting jointly or in concert (any such group, a Group) becomes the beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Corporation (or its successor by merger, consolidation, amalgamation, arrangement or purchase of all or substantially all of its assets); or |
(2) | the first day on which a majority of the members of the Board of Directors of the Corporation are not Continuing Directors; or |
(3) | the direct or indirect sale, assignment, conveyance, transfer, lease or other disposition (other than by way of merger, consolidation, amalgamation or arrangement), in one or a series of related transactions, of all or substantially all of the assets of the Corporation and its Restricted Subsidiaries taken as a whole to any Person or Group (other than to one or more Wholly-Owned Restricted Subsidiaries); or |
(4) | the adoption by the shareholders of the Corporation of a plan or proposal for the liquidation or dissolution of the Corporation. |
Collateral means, collectively, all personal property and assets of the Corporation and each of the Guarantors that secures the Obligations under the Notes, the Note Guarantees and the Indenture, pursuant to the Collateral Documents.
Collateral Agent means a trust company or other Person appointed by the Corporation under the Indenture that is authorized under the laws of Canada or any Province thereof and each other relevant jurisdiction to act as collateral agent under the Collateral Documents and any successor thereto.
Collateral Documents means the Intercreditor Agreement and the security agreements, pledge agreements, mortgages, and other instruments pursuant to which the Corporation and the Guarantors shall grant or have granted Liens in the Collateral to the Collateral Agent for the benefit of the Holders, in each case, as amended, restated or replaced, in whole or in part, from time to time.
Commodity Agreement means any commodity futures contract, commodity swap, commodity option or other similar agreement or arrangement entered into by the Corporation or any of its Restricted Subsidiaries designed to protect the Corporation or any of its Restricted Subsidiaries against fluctuations in the price of commodities actually produced or used in the ordinary course of business of the Corporation and its Restricted Subsidiaries.
Common Stock means with respect to any Person, any and all shares, interest or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Persons common stock, whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
Consolidated Coverage Ratio means as of any date of determination, with respect to any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which financial statements are internally available to (y) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:
(1) | if the Corporation or any of its Restricted Subsidiaries: |
(a) | has incurred any Indebtedness (other than Indebtedness that constitutes ordinary working capital borrowings) since the beginning of such period that remains outstanding on such |
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date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes an incurrence of Indebtedness (other than Indebtedness that constitutes ordinary working capital borrowings), Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been incurred on the first day of such period (except that in making such computation, the amount of revolving Indebtedness under the Credit Facility outstanding on the date of such calculation will be deemed to be: |
(i) | the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or |
(ii) | if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation), |
and the discharge of any other Indebtedness repaid, repurchased, redeemed, retired, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or
(b) | has repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes a repayment, redemption, retirement, defeasance or other discharge of Indebtedness (in each case, other than revolving Indebtedness incurred under the Credit Facility unless such Indebtedness has been permanently repaid and the related commitment terminated and not replaced), Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such repayment, redemption, retirement, defeasance or other discharge had occurred on the first day of such period; |
(2) | if since the beginning of such period, the Corporation or any of its Restricted Subsidiaries will have made any Asset Disposition or disposed of or accounted for as discontinued operations (as defined under IFRS) any Corporation, division, operating unit, segment, business, group of related assets or line of business or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is such an Asset Disposition: |
(a) | the Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets that are the subject of such disposition or discontinuation for such period or increased by an amount equal to the Consolidated EBITDA (if negative) directly attributable thereto for such period; and |
(b) | Consolidated Interest Expense for such period will be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the Corporation or any of its Restricted Subsidiaries repaid, repurchased, redeemed, retired, defeased or otherwise discharged (to the extent the related commitment is permanently reduced) with respect to the Corporation and its continuing Restricted Subsidiaries in connection with such transaction for such period (or, if the Capital Stock of any Restricted Subsidiary of the Corporation is sold or in the case of discontinued operations, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary or discontinued operations to the extent the Corporation and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale); |
(3) | if since the beginning of such period the Corporation or any of its Restricted Subsidiaries (by merger, consolidation, amalgamation, arrangement or otherwise) will have made an Investment in |
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any Restricted Subsidiary of the Corporation (or any Person that becomes a Restricted Subsidiary of the Corporation or is merged with or into the Corporation or any of its Restricted Subsidiaries) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of a Corporation, division, operating unit, segment, business, group of related assets or line of business, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto (including the incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and |
(4) | if since the beginning of such period any Person (that subsequently became a Restricted Subsidiary of the Corporation or was merged with or into the Corporation or any of its Restricted Subsidiaries since the beginning of such period) will have incurred any Indebtedness or repaid, redeemed, retired, defeased or otherwise discharged any Indebtedness, made any disposition or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by the Corporation or its Restricted Subsidiary during such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period. |
For purposes of this definition, whenever pro forma effect is to be given to any calculation under this definition, the pro forma calculations will be determined in good faith by a responsible financial or accounting officer of the Corporation. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months). If any Indebtedness that is being given pro forma effect bears an interest rate at the option of the Corporation, the interest rate shall be calculated by applying such optional rate chosen by the Corporation.
Consolidated EBITDA for any period means, with respect to any Person, the Consolidated Net Income of such Person for such period:
(1) | increased (without duplication) by the following items to the extent deducted in calculating such Consolidated Net Income: |
(a) | Consolidated Interest Expense; plus |
(b) | Consolidated Income Taxes; plus |
(c) | consolidated amortization, depletion and depreciation expense; plus |
(d) | other non-cash charges reducing Consolidated Net Income, including any write-offs or write-downs (excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was capitalized at the time of payment); plus |
(e) | any expenses or charges related to any Equity Offering, Permitted Investment, merger, amalgamation, consolidation, arrangement, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by the Indenture (including a refinancing thereof) (whether or not successful), including (i) fees, expenses or charges related to the offering of the Notes and the recapitalization transactions in connection therewith and (ii) any amendment or other modification of the Credit Facility in connection therewith; plus |
(f) | any restructuring charges, integration costs or costs associated with establishing new facilities (which, for the avoidance of doubt, shall include retention, severance, relocation, workforce reduction, contract termination, systems establishment costs and facilities consolidation costs) certified by the chief financial officer of the Corporation and deducted (and not added back) in computing Consolidated Net Income; provided that |
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the aggregate amount of all charges, expenses and costs added back under this clause (f) shall not exceed $10 million in any consecutive four-quarter period; plus |
(g) | accretion of asset retirement obligations, net of cash payments by such Person for such asset retirement obligations; plus |
(h) | the greater of (x) the Corporations equity in the net income of any Person (other than the Persons comprising the MOA Joint Venture or any other Joint Venture if, on the date of determination, the Corporation or a Wholly-Owned Restricted Subsidiary directly owns neither more nor less than 50% of the outstanding Capital Stock (measured in terms of economic interest rather than number of shares or voting power) of such Person) that is not a Restricted Subsidiary, that is accounted for by the equity method of accounting for such period and (y) the aggregate amount of cash actually distributed by such Person during such period to the Corporation or any of its Restricted Subsidiaries in accordance with clause (1) of the definition of Consolidated Net Income; provided that the adjustment pursuant to this clause (h) may be incremental to (but not duplicative of) any amount included in Consolidated Net Income pursuant to one of the exceptions described in subclauses (a) or (b) of clause (1) of the definition of Consolidated Net Income; |
(2) | decreased (without duplication) by non-cash items increasing Consolidated Net Income of such Person for such period (excluding the accrual of revenue in the ordinary course of business and any items which represent the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period), and |
(3) | increased or decreased (without duplication) to eliminate to the extent reflected in Consolidated Net Income effects of adjustments (including the effects of such adjustments pushed down to the Corporation and its Restricted Subsidiaries) in any line item in such Persons consolidated financial statements resulting from the application of purchase accounting in relation to any completed acquisition. |
Notwithstanding the foregoing, clauses (1)(b) through (g) above relating to amounts of a Restricted Subsidiary or Joint Venture of a Person will be added to Consolidated Net Income to compute Consolidated EBITDA of such Person only to the extent (and in the same proportion) that the net income (loss) of such Restricted Subsidiary or Joint Venture was included in calculating the Consolidated Net Income of such Person and, in the case of the Restricted Subsidiary, to the extent the amounts set forth in clauses (1)(b) through (g) above are in excess of those necessary to offset a net loss of such Restricted Subsidiary or if such Restricted Subsidiary has net income for such period included in Consolidated Net Income, only if a corresponding amount would be permitted at the date of determination to be dividended to the Corporation by such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its shareholders.
Consolidated Income Taxes means, with respect to any Person for any period, provision of such Person for such period (calculated on a consolidated basis in accordance with IFRS) in respect of taxes for such period imposed upon such Person or for other payments required to be made by such Person by any governmental authority which taxes or other payments are calculated by reference to the income or profits or capital of such Person or such Person and its Restricted Subsidiaries (to the extent such income or profits were included in computing Consolidated Net Income for such period), including, without limitation, federal, provincial and territorial, state, franchise and similar taxes and foreign taxes regardless of whether such taxes or payments are required to be remitted to any governmental authority.
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Consolidated Interest Expense means, with respect to any Person, for any period, the total interest expense of such Person and its consolidated Restricted Subsidiaries, net of any interest income received by such Person and its consolidated Restricted Subsidiaries, whether paid or accrued (other than interest income on Joint Venture Loans, excluding the MOA Joint Venture Loan), plus, to the extent not included in such interest expense:
(1) | interest expense attributable to Capitalized Lease Obligations and the interest portion of rent expense associated with Attributable Indebtedness in respect of the relevant lease giving rise thereto; |
(2) | amortization of debt discount (including the amortization of original issue discount resulting from the issuance of Indebtedness at less than par) and debt issuance cost; provided, however, that any amortization of bond premium will be credited to reduce Consolidated Interest Expense unless such amortization of bond premium has otherwise reduced Consolidated Interest Expense; |
(3) | non-cash interest expense, but any non-cash interest income or expense attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments shall be excluded from the calculation of Consolidated Interest Expense; |
(4) | commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing; |
(5) | the interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, other than a Lien permitted by clause (25) of the definition of Permitted Liens; |
(6) | costs associated with entering into Hedging Obligations (including amortization of fees) related to Indebtedness; |
(7) | interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; |
(8) | the product of (a) all dividends paid or payable, in cash, Cash Equivalents or Indebtedness or accrued during such period on any series of Disqualified Stock of such Person or on Preferred Stock of its Non-Guarantors payable to a party other than the Corporation or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined Canadian federal, provincial, territorial, municipal and local and foreign statutory tax rate of such Person, expressed as a decimal, in each case on a consolidated basis in accordance with IFRS; |
(9) | Receivables Fees; |
(10) | the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are intended to be used by such plan or trust to pay interest or fees to any Person (other than the Corporation and its Restricted Subsidiaries) in connection with Indebtedness incurred by such plan or trust; and |
(11) | the proportionate interest of the Corporation in the Consolidated Interest Expense of the Persons comprising the MOA Joint Venture or any other Joint Venture if, on the date of determination, the Corporation or a Wholly-Owned Restricted Subsidiary directly owns neither more nor less than 50% of the outstanding Capital Stock (measured in terms of economic interest rather than number of shares or voting power) of such Person or Joint Venture, as applicable (with such interest expense calculated in substantially the same manner as Consolidated Interest Expense of the Corporation and its Restricted Subsidiaries); |
For the purpose of calculating the Consolidated Coverage Ratio, the calculation of Consolidated Interest Expense shall include all interest expense (including any amounts described in clauses (1) through (11) above) relating to any
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Indebtedness of such Person or any of its Restricted Subsidiaries described in the final paragraph of the definition of Indebtedness.
For purposes of the foregoing, total interest expense will be determined (i) after giving effect to any net payments made or received by such Person and its Subsidiaries with respect to Interest Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income in the balance sheet of such Person. Notwithstanding anything to the contrary contained herein, without duplication of clause (9) above, commissions, discounts, yield and other fees and charges incurred in connection with any transaction pursuant to which such Person or its Restricted Subsidiaries may sell, convey or otherwise transfer or grant a security interest in any accounts receivable or related assets shall be included in Consolidated Interest Expense.
Consolidated Net Income means, for any period, the net income (loss) of the Corporation and its consolidated Subsidiaries determined on a consolidated basis in accordance with IFRS; provided, however, that there will not be included in such Consolidated Net Income:
(1) | any net income (loss) of any Person if such Person is not a Restricted Subsidiary of the Corporation or that is accounted for by the equity method of accounting (other than the Persons comprising the MOA Joint Venture or any other Joint Venture if, on the date of determination, the Corporation or a Wholly-Owned Restricted Subsidiary directly owns neither more nor less than 50% of the outstanding Capital Stock (measured in terms of economic interest rather than number of shares or voting power) of such Persons) provided that: |
(a) | the aggregate amount of cash actually distributed by such Person during such period to the Corporation or any of its Restricted Subsidiaries as a dividend or other distribution, or as a principal payment shall be included in Consolidated Net Income; and |
(b) | the Corporations equity in a net loss of any such Person for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Corporation or its Restricted Subsidiary; |
(2) | solely for the purpose of determining the amount available for Restricted Payments under clause (c)(i) of the first paragraph of Certain CovenantsLimitation on Restricted Payments, any net income (but not loss) of any Restricted Subsidiary of the Corporation (other than a Guarantor) if such Restricted Subsidiary is subject to prior government approval or other restrictions due to the operation of its charter or any agreement, instrument, judgment, decree, order, statute, rule or government regulation (which have not been waived), directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Corporation, except that: |
(a) | subject to the limitations contained in clauses (3) through (11) below, the Corporations equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to the Corporation or another Restricted Subsidiary of the Corporation as a dividend or other distribution (subject, in the case of a dividend or other distribution to another Restricted Subsidiary of the Corporation, to the limitation contained in this clause); and |
(b) | the Corporations equity in a net loss of any such Restricted Subsidiary for such period will be included in determining such Consolidated Net Income; |
(3) | any gain or loss (less all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Corporation or such Restricted Subsidiary, other than in the ordinary course of business, as determined in good faith by Senior Management; |
(4) | any income or loss from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments; |
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(5) | any extraordinary, unusual or non-recurring gain or loss; |
(6) | any unrealized net gain or loss resulting in such period from Hedging Obligations or other derivative instruments; |
(7) | any net income or loss included in the consolidated statement of operations with respect to non- controlling interests; |
(8) | the cumulative effect of a change in accounting principles; |
(9) | consolidated impairment charges; |
(10) | any non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity incentive programs; |
(11) | any net gain or loss resulting in such period from currency translation gains or losses; and |
(12) | interest income, to the extent accrued but not paid in cash, on Joint Venture Loans (other than the MOA Joint Venture Loan, provided that the Corporation or a Wholly-Owned Restricted Subsidiary directly owns neither more nor less than 50% of the outstanding Capital Stock (measured in terms of economic interest rather than number of shares or voting power) of the MOA Joint Venture). |
For the avoidance of doubt, an amount equal to the proportionate interest of the Corporation in the net income (loss) for such period of the MOA Joint venture and any other Joint Venture (such net income (loss) to be determined with the same additions and subtractions as are provided for in clause (1) through clause (11) above) will be included in such Consolidated Net Income, provided that on the date of determination the Corporation or a Wholly-Owned Restricted Subsidiary directly owns neither more nor less than 50% of the outstanding Capital Stock (measured in terms of economic interest rather than number of shares or voting power) of such Joint Venture.
Continuing Directors means, as of any date of determination, any member of the Board of Directors of the Corporation: (1) who was a member of such Board of Directors on the Issue Date or (2) whose election or nomination for election to such Board of Directors was not opposed by a majority of the Continuing Directors who were at the time of such nomination or election members of such Board.
Corefco means The Cobalt Refinery Corporation Inc.
Credit Facility means the second amended and restated credit agreement dated as of January 31, 2018 among the Corporation, as borrower, ICCI and Corefco, as guarantors, National Bank of Canada, as administrative agent, and the lenders party thereto from time to time, as amended to the date hereof and as the same may be further amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time (including to change the borrowers or increase the amount loaned thereunder; provided that such additional Indebtedness is incurred in accordance with the covenant described under Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock).
Currency Agreement means, in respect of a Person, any foreign exchange contract, currency swap agreement, futures contract, option contract or other similar agreement as to which such Person is a party or a beneficiary.
Default means any event that is, or after notice or passage of time or both would be, an Event of Default.
Designated Non-Cash Consideration means the Fair Market Value of non-cash consideration received by the Corporation or any of its Restricted Subsidiaries in connection with an Asset Disposition that is designated as Designated Non-Cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or payment of, on or with respect to such Designated Non-Cash Consideration.
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Disqualified Stock means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(1) | matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; |
(2) | is convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Corporation or its Restricted Subsidiaries (it being understood that upon such conversion or exchange it shall be an incurrence of such Indebtedness or Disqualified Stock)); or |
(3) | is redeemable at the option of the holder of the Capital Stock in whole or in part, |
in each case on or prior to the date 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further, that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Corporation or its Restricted Subsidiaries to repurchase such Capital Stock upon the occurrence of a Change of Control or Asset Disposition (each defined in a substantially identical manner to the corresponding definitions in the Indenture) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) provide that the Corporation or its Restricted Subsidiaries, as applicable, are not required to repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) pursuant to such provision prior to compliance by the Corporation with the provisions of the Indenture described under the headings Repurchase at the Option of HoldersChange of Control and Repurchase at the Option of HoldersAsset Disposition and such repurchase or redemption complies with Certain CovenantsLimitation on Restricted Payments.
Energas Joint Venture means the joint venture in respect of the Energas power plant joint venture in Cuba carried on by Energas S.A. and its successors and assigns from time to time;
Equity Offering means a public offering or private placement for cash by the Corporation of its Capital Stock, other than (x) any issuances pursuant to employee benefit plans or otherwise in compensation to officers, directors or employees, (y) an issuance to any Restricted Subsidiary, or (z) an offering of Common Stock issued in connection with a transaction that constitutes a Change of Control.
Excess Amount has the meaning given thereto under Security for the Notes Intercreditor Agreement.
Excess Cash Flow means for each period of two consecutive fiscal quarters ending June 30 (from and after June 30, 2021) and for each period of two consecutive fiscal quarters ending December 31 (from and after December 31, 2021), as applicable, an amount equal to (a) the aggregate amount of cash provided by (used in) operating activities as shown on the Corporations consolidated cash flow statements (prepared in accordance with IFRS) for such preceding two fiscal quarter period (excluding the amount of cash used or provided from the Energas Joint Venture) less (b) the aggregate amount of consolidated sustaining spending on capital by the Corporation for such preceding two fiscal quarter period (excluding the aggregate amount of sustaining spending on capital in respect of the Energas Joint Venture) plus (c) to the extent not otherwise included in the calculation of Excess Cash Flow pursuant to item (a) above, the aggregate amount of cash distributed by the Energas Joint Venture to the Corporation or any of its Restricted Subsidiaries into bank accounts located in any province or territory of Canada during such preceding two fiscal quarter period.
Event of Default means each event described under Events of Default and any other event defined as an Event of Default in the Indenture.
Fair Market Value means, with respect to any asset or liability, the fair market value of such asset or liability as determined by Senior Management of the Corporation in good faith; provided that if the fair market value exceeds $25 million, such determination shall be made by the Board of Directors of the Corporation in good faith (including as to the value of all non-cash assets and liabilities).
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First Lien Cap has the meaning given thereto under Security for the Notes Intercreditor Agreement.
First Lien Debt Cap Amount means an amount equal to the sum of the amounts described in clauses (i) through (iii) of the definition of First Lien Cap.
First Ranking Lien means a first priority Lien, subject to Permitted Liens, granted to the Senior Lenders, upon any Property of the Corporation or any Guarantor, to secure the Indebtedness under the Credit Facility permitted to be incurred pursuant to clause (1) of the second paragraph under Certain Covenants Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
Government Securities means securities that are (a) direct obligations of Canada for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of Canada the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of Canada which are not callable or redeemable at the option of the issuer thereof.
Guarantee means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) | to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or |
(2) | entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); |
provided, however, that the term Guarantee will not include (i) endorsements for collection or deposit in the ordinary course of business or (ii) Liens permitted by clause (25) of the definition of Permitted Liens.
Guarantor means each Wholly-Owned Restricted Subsidiary of the Corporation that is not an Immaterial Subsidiary in existence on the Issue Date that provides a Note Guarantee on the Issue Date and any other Restricted Subsidiary of the Corporation that provides a Note Guarantee after the Issue Date in accordance with the Indenture; provided that upon release or discharge of any Restricted Subsidiary of the Corporation from its Note Guarantee in accordance with the Indenture, such Restricted Subsidiary shall cease to be a Guarantor.
Guarantor Subordinated Obligation of a Guarantor means any Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter incurred) that is expressly subordinated in right of payment to the obligations of such Guarantor under its Note Guarantee pursuant to a written agreement.
Hedging Obligations of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement.
Holder means a Person in whose name a Note is registered on the Registrars books.
ICCI means International Cobalt Company Inc.
IFRS means, at any time, international financial reporting standards as issued by the International Accounting Standards Board as in effect at such time. All ratios and computations based on IFRS contained in the Indenture will be computed in conformity with IFRS.
Immaterial Subsidiary means, at any date of determination, any Restricted Subsidiary of the Corporation (1) the total assets of which (when combined with the assets of such Restricted Subsidiarys Restricted Subsidiaries and after intercompany eliminations) at the last day of the most recent fiscal year ending prior to the date of determination for which internal financial statements are available were less than 1.0% of Total Assets at the last day of such fiscal year and (2) the total revenues of which (when combined with the revenues of such Restricted Subsidiarys Restricted Subsidiaries and after intercompany eliminations) for the most recent fiscal year period
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ending prior to the date of determination for which internal financial statements are available were less than 1.0% of the consolidated total revenue of the Corporation and its Restricted Subsidiaries for such period.
incur means issue, create, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary of the Corporation (whether by merger, consolidation, amalgamation or arrangement, acquisition or otherwise) will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Corporation; and the terms incurred and incurrence have meanings correlative to the foregoing.
Indebtedness means, with respect to any Person on any date of determination (without duplication):
(1) | the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money; |
(2) | the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; |
(3) | the obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers acceptance or other similar instrument (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1), (2), (4) or (5) of this definition) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed within 30 days of payment on the letter of credit); |
(4) | the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (including earn-out obligations) that are recorded as liabilities under IFRS, and which purchase price is due after the date of placing such property in service or taking delivery and title thereto, except any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business; |
(5) | Capitalized Lease Obligations and all Attributable Indebtedness of such Person (whether or not such items would appear on the balance sheet of such Person); |
(6) | the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, in the case of any Preferred Stock issued by a Non-Guarantor, such Preferred Stock (but excluding, in each case, any accrued dividends); |
(7) | all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person (other than as permitted by clause (25) of the definition of Permitted Liens); provided, however, that the amount of such Indebtedness will be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the principal component of such Indebtedness of such other Persons; |
(8) | the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear on the balance sheet of such Person); |
(9) | to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Obligation that would be payable by such Person at such time); and |
(10) | to the extent not otherwise included in this definition, the amount of obligations outstanding under the legal documents entered into as part of a securitization transaction or series of securitization transactions that would be characterized as principal if such transaction were structured as a secured lending transaction rather than as a securitization transaction or series of securitization |
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transactions pursuant to which the Corporation or any of its Restricted Subsidiaries sells or grants a security interest in accounts receivable to a Person that is not a Restricted Subsidiary. |
Notwithstanding the foregoing: (i) money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to pre-fund the payment of interest on such Indebtedness shall not be deemed to be Indebtedness; provided that such money is held to secure the payment of such interest; (ii) obligations in respect of royalty or precious metals stream or similar transactions shall not be deemed to be Indebtedness; (iii) in connection with the purchase by the Corporation or any of its Restricted Subsidiaries of any business, the term Indebtedness will exclude indemnification or post-closing payment adjustments or earn-out or similar obligations to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that at the time of closing, the amount of any such payment is not determinable or not reflected as a liability on the balance sheet of the Corporation (excluding any notes thereto) and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; and (iv) Indebtedness shall be calculated without giving effect to any increase or decrease in Indebtedness for any purpose under the Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness. For the avoidance of doubt, Reclamation Obligations are not and will not be deemed to be Indebtedness.
In addition, Indebtedness of the Corporation and its Restricted Subsidiaries shall include (without duplication) Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of the Corporation and its Restricted Subsidiaries if:
(1) | such Indebtedness is the obligation of a Joint Venture; |
(2) | the Corporation or any of its Restricted Subsidiaries is a general partner of the Joint Venture (a General Partner); and |
(3) | there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of the Corporation or any of its Restricted Subsidiaries, other than in respect of Liens permitted by clause (25) of the definition of Permitted Liens; |
and then such Indebtedness shall be included in an amount not to exceed:
(a) | the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of the Corporation or any of its Restricted Subsidiaries; or |
(b) | if less than the amount determined pursuant to clause (a) immediately above, the actual amount of such Indebtedness that is recourse to the Corporation or any of its Restricted Subsidiaries, if the Indebtedness is evidenced by a writing and is for a determinable amount. |
Indenture Trustee means AST Trust Company (Canada) or such other trust company or other Person appointed by the Corporation that is authorized under the laws of Canada or any Province thereof and each other relevant jurisdiction to act as trustee under the Indenture, and any successor thereto appointed by the Corporation from time to time in accordance with the Indenture.
Independent Financial Advisor means an accounting, appraisal, investment banking firm or consultant to Persons engaged in advising Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Corporation, qualified to perform the task for which it has been engaged.
Initial Notes means the 8.50% senior second lien secured notes due 2027 initially issued pursuant to the Plan (as defined in this Circular) in an aggregate principal amount equal to (i) approximately $294 million plus (ii) the amount of all accrued and unpaid interest on the Existing Notes (as defined in the Circular) up to but not including the Issue Date.
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Intercreditor Agreement means the Intercreditor Agreement to be entered into among the Indenture Trustee, on behalf of the Holders of the Notes, the Senior Lenders, the Corporation and the Guarantors, as the same may be amended, supplemented, or otherwise modified from time to time.
Interest Rate Agreement means, with respect to any Person, any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement as to which such Person is party or a beneficiary.
Investment means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan (other than advances or extensions of credit to customers, suppliers or vendors in the ordinary course of business) or other extensions of credit (including by way of Guarantee or similar arrangement, but excluding any debt or extension of credit represented by a bank deposit (other than a time deposit)) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person; provided that none of the following will be deemed to be an Investment:
(1) | Hedging Obligations entered into in the ordinary course of business and in compliance with the Indenture; |
(2) | endorsements of negotiable instruments and documents in the ordinary course of business; and |
(3) | an acquisition of assets, Capital Stock or other securities by the Corporation or a Subsidiary for consideration to the extent such consideration consists of Capital Stock (other than Disqualified Stock) of the Corporation. |
For purposes of Certain CovenantsLimitation on Restricted Payments,
(1) | Investment will include the portion (proportionate to the Corporations equity interest in a Restricted Subsidiary of the Corporation that is to be designated an Unrestricted Subsidiary) of the Fair Market Value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary of the Corporation, the Corporation will be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Corporations aggregate Investment in such Subsidiary as of the time of such redesignation less (b) the portion (proportionate to the Corporations equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time that such Subsidiary is so redesignated a Restricted Subsidiary of the Corporation; |
(2) | any property transferred to or from an Unrestricted Subsidiary other than cash will be valued at its Fair Market Value at the time of such transfer; and |
(3) | if the Corporation or any of its Restricted Subsidiaries sells or otherwise disposes of any Voting Stock of any Restricted Subsidiary of the Corporation such that, after giving effect to any such sale or disposition, such entity is no longer a Subsidiary of the Corporation, the Corporation shall be |
deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed of.
Investment Grade Securities means (1) securities issued or directly and fully Guaranteed or insured by governments and supranational institutions having a AAA or higher rating by Standard & Poors Ratings Group, Inc. or the equivalent from another Rating Agency, or any agency or instrumentality thereof (other than Cash Equivalents); (2) debt securities or debt instruments with a rating of A or higher from Standard & Poors Ratings Group, Inc., or A3 or higher by Moodys Investors Service, Inc. or the equivalent of such rating by such rating organization or, if no rating of Moodys Investors Service, Inc. or Standard & Poors Ratings Group, Inc., then
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exists, the equivalent of such rating by any other Ratings Agency, but excluding any debt securities or instruments constituting loans or advances among the Corporation and its Subsidiaries; and (3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) above which fund may also hold cash and Cash Equivalents pending investment or distribution.
Issue Date means , 2020.
Joint Venture means each of the MOA Joint Venture, the Ambatovy Joint Venture, the Energas Joint Venture, and any other joint venture or partnership in which the Corporation or a Restricted Subsidiary has an equity interest from time to time, which is not a Subsidiary of the Corporation and which constitutes a joint arrangement for purposes of IFRS.
Joint Venture Loans means loans by the Corporation or a Restricted Subsidiary to a Joint Venture or to an Unrestricted Subsidiary which directly or indirectly has an equity interest in a Joint Venture.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, deed of trust, deemed trust, charge, security interest, preference or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, and any option or other agreement to sell or give a security interest; provided that in no event shall a lease that would have been classified as an operating lease in accordance with IFRS as in effect on the Issue Date be deemed to constitute a Lien.
Limited Guarantee means a Guarantee by a Person organized other than in Canada or the United States, the amount of which is limited pursuant to, or in order to comply with, applicable requirements of law in the jurisdiction of organization of the applicable Person.
Liquidity Amount means, at any time, the amount of all unrestricted cash, cash equivalents and short-term investments, all determined in accordance with IFRS, and held by the Corporation and the Restricted Subsidiaries in bank accounts (including securities accounts) located in any province or territory of Canada less the principal amount drawn under the Credit Facility at such time (excluding, for greater certainty, the amount of any letters of credit issued thereunder).
Minimum Liquidity Amount means a Liquidity Amount of not less than $75 million.
MMI means Madagascar Minerals Investments Ltd., a British Virgin Islands company, and it successors.
MOA means Moa Nickel S.A.
MOA Joint Venture means MOA Nickel joint venture carried on by MOA, ICCI and COREFCO, and their successors and assigns from time to time.
MOA Joint Venture Loan means the Joint Venture Loan by the Corporation to the MOA Joint Venture.
Net Available Cash from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a Note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or such other disposition or issuance, or received in any other non-cash form) therefrom, in each case net of:
(1) | all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses incurred, and all Canadian federal, provincial, territorial, municipal and local taxes, and all foreign taxes, required to be paid or accrued as a liability under IFRS (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Disposition; |
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(2) | all payments made on any Indebtedness that is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law be repaid out of the proceeds from such Asset Disposition; |
(3) | all distributions and other payments required to be made to unaffiliated interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and |
(4) | the deduction of appropriate amounts to be provided by the seller as a provision, in accordance with IFRS, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Corporation or any of its Restricted Subsidiaries after such Asset Disposition. |
Net Cash Proceeds, with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale, net of attorneys fees, accountants fees, underwriters or placement agents fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).
Non-Guarantor means any Restricted Subsidiary of the Corporation that is not a Guarantor.
Non-Recourse Debt means any Indebtedness:
(1) | as to which neither the Corporation nor any of its Restricted Subsidiaries (a) provides any Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness, but excluding any off-take agreement), other than Indebtedness secured by Liens permitted by clause (25) of the definition of Permitted Liens or (b) is directly or indirectly liable (as a guarantor or otherwise), other than as a result of Indebtedness secured by Liens permitted by clause (25) of the definition of Permitted Liens; |
(2) | no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Corporation or any of its Restricted Subsidiaries, other than Indebtedness secured by Liens permitted by clause (25) of the definition of Permitted Liens, to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and |
(3) | the explicit terms of which provide, or as to which the lenders have agreed in writing, that there is no recourse against any of the assets of the Corporation or its Restricted Subsidiaries, other than in respect of Liens permitted by clause (25) of the definition of Permitted Liens. |
Note Guarantee means, individually, any Guarantee of payment of the Notes and the Corporations other Obligations under the Indenture by a Guarantor pursuant to the terms of the Indenture or any supplemental indenture thereto, and, collectively, all such Guarantees.
Notes means the Initial Notes and the Additional Notes and any other note authenticated and delivered under the Indenture.
NPMMI means New Providence Metals Marketing Inc., a Bahamas company and its successors.
Obligations means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Canadian federal or provincial law or under any foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
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Officer means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Senior Vice President, the Treasurer, the Corporate Secretary or the Assistant Corporate Secretary of the Corporation or, in the event that the Corporation is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Corporation. Officer of any Guarantor has a correlative meaning.
Officers Certificate means a certificate signed by an Officer of the Corporation.
Opinion of Counsel means a written opinion from legal counsel who is licensed to practice in the applicable jurisdiction. The counsel may be an employee of, or counsel to, the Corporation or the Indenture Trustee.
Permitted Investment means any of the following Investments:
(1) | an Investment in the Corporation or a Restricted Subsidiary of the Corporation; |
(2) | an Investment in a Person if as a result of such Investment: |
(a) | such Person becomes a Restricted Subsidiary of the Corporation; or |
(b) | such Person, in one transaction or a series of related transactions, is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Corporation or any of its Restricted Subsidiaries, |
and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation, amalgamation, arrangement or transfer;
(3) | an Investment in Cash Equivalents or Investment Grade Securities; |
(4) |
(a) | endorsements for collection or deposit in the ordinary course of business, and |
(b) | receivables owing to the Corporation or any of its Restricted Subsidiaries created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Corporation or any such Restricted Subsidiary deems reasonable under the circumstances; |
(5) | payroll, travel, commission, entertainment, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; |
(6) | loans or advances to employees, officers or directors of the Corporation or any of its Restricted Subsidiaries in the ordinary course of business in an aggregate amount not in excess of $500,000 with respect to all loans or advances made since the Issue Date (giving effect to the repayment of any such loan, but without giving effect to the forgiveness of any such loan); |
(7) | any Investment acquired by the Corporation or any of its Restricted Subsidiaries: |
(a) | in exchange for any other Investment or accounts receivable held by the Corporation or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or in satisfaction of judgments or otherwise in resolution or compromise of litigation, arbitration or disputes; or |
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(b) | as a result of a foreclosure by the Corporation or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; |
(8) | Investments made as a result of the receipt of non-cash consideration from an Asset Disposition that was made pursuant to and in compliance with Repurchase at the Option of Holders Asset Disposition or any other disposition of assets not constituting an Asset Disposition; |
(9) | Investments in existence on the Issue Date, or made pursuant to contractual obligations in existence on the Issue Date, or an Investment consisting of any extension, modification or renewal of any such Investment existing on, or made pursuant to a contractual obligation existing on, the Issue Date; provided that the amount of any such Investment may be increased in such extension, modification or renewal only (a) as required by the terms of such Investment, or (b) as otherwise permitted under the Indenture; |
(10) | Currency Agreements, Interest Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or obligations are incurred in compliance with Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(11) | Guarantees issued in accordance with Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(12) | Investments made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Corporation and its Restricted Subsidiaries in connection with such plans; |
(13) | Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; |
(14) | any Similar Business Investment if the amount of such Similar Business Investment, when taken together with all other Investments made pursuant to this clause (14) that are outstanding at such time, would not exceed $50 million; and |
(15) | Joint Venture Loans in an amount not to exceed at any one time outstanding, an amount equal to (a) the lesser of (i) the maximum committed amount under the applicable Credit Facility as in effect at such time and (ii) the borrowing base under the applicable Credit Facility as in effect at such time minus (b) $25 million. |
Permitted Liens means, with respect to any Person:
(1) | Liens securing (i) Indebtedness and other obligations permitted to be incurred under the provisions described in clause (1) of the second paragraph under Certain Covenants Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock, including interest, fees and other obligations relating thereto or for related banking services and Liens on assets of Restricted Subsidiaries of the Corporation securing Guarantees of such Indebtedness and such other obligations of the Corporation and (ii) the Excess Amount; |
(2) | pledges or deposits by such Person under workers compensation laws, unemployment insurance laws, pension laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or Government Securities to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business; |
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(3) | Liens imposed by law, including carriers, warehousemens, mechanics, landlords, materialmens and repairmens Liens, incurred in the ordinary course of business; |
(4) | Liens for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or that are being contested in good faith by appropriate proceedings provided appropriate provisions required pursuant to IFRS have been made in respect thereof; |
(5) | Liens in favour of issuers of surety or performance bonds or letters of credit or bankers acceptances or similar obligations issued pursuant to the request of and for the account of such Person in the ordinary course of its business; |
(6) | minor survey exceptions, encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person; |
(7) | Liens securing Hedging Obligations that are not incurred for speculative purposes; |
(8) | leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Corporation or any of its Restricted Subsidiaries; |
(9) | judgment Liens not giving rise to an Event of Default; |
(10) | Liens securing Indebtedness permitted to be incurred pursuant to clause (8) of the second paragraph under Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that such Liens are created within 365 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Corporation or any of its Restricted Subsidiaries other than such assets or property and assets affixed or appurtenant thereto and the proceeds thereof; |
(11) | Liens arising solely by virtue of any statutory or common law provisions relating to Liens in favour of trustees and escrow agents, bankers Liens, margin Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository institution; provided that: |
(a) | such deposit account is not a dedicated cash collateral account ; and |
(b) | such deposit account is not intended by the Corporation or any of its Restricted Subsidiaries to provide collateral to the depository institution; |
(12) | Liens arising from Personal Property Security Act (Ontario) (or similar statutes in other jurisdictions) financing statement filings regarding operating leases entered into by the Corporation and any of its Restricted Subsidiaries in the ordinary course of business; |
(13) | Liens existing on the Issue Date (other than Liens permitted under clause (1) of this definition); |
(14) | Liens on property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary of the Corporation; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary of the Corporation; provided, further, however, that any such Lien may not extend to any other property owned by the Corporation or any of its Restricted Subsidiaries (other than the proceeds thereof); |
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(15) | Liens on property at the time the Corporation or a Restricted Subsidiary of the Corporation acquired the property, including any acquisition by means of a merger, amalgamation, arrangement or consolidation with or into the Corporation or any of its Restricted Subsidiaries; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided, further, however, that such Liens may not extend to any other property owned by the Corporation or any of its Restricted Subsidiaries (other than the proceeds thereof); |
(16) | Liens securing Indebtedness or other obligations of a Restricted Subsidiary of the Corporation owing to the Corporation or another Restricted Subsidiary of the Corporation; |
(17) | Liens securing Indebtedness under the Notes and the Note Guarantees to the extent that such Indebtedness is permitted under clause (2) of the second paragraph under Certain Covenants Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(18) | Liens securing Refinancing Indebtedness incurred to refinance, refund, replace, amend, extend or modify, as a whole or in part, Indebtedness that was previously so secured pursuant to clauses (10), (13), (14), (15), (17) and this clause (18) of this definition; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or is in respect of property that is the security for a Permitted Lien hereunder; |
(19) | any interest or title of a lessor under any Capitalized Lease Obligation, Sale/Leaseback Transaction or operating lease; |
(20) | Liens in favour of the Corporation or any of its Restricted Subsidiaries; |
(21) | Liens under industrial revenue, municipal or similar bonds; |
(22) | (a) Liens incurred in the ordinary course of business not securing Indebtedness and not in the aggregate materially detracting from the value of the properties of the Corporation and its Restricted Subsidiaries or the use of such properties in the operation of their business and (b) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business; |
(23) | Liens on specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances or other instruments issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; |
(24) | deposits made in the ordinary course of business to secure liability to insurance carriers; |
(25) | Liens on the Capital Stock or Indebtedness of an Unrestricted Subsidiary or Joint Venture (or any other right, title or interest relating thereto, including any right to receive interest on such Indebtedness or dividends or other distributions on Capital Stock, or any right, title or interest in or to any agreements or instruments relating thereto, including under any related shareholder, limited partnership, joint venture, loan or security agreements), in each case securing Non-Recourse Debt; |
(26) | Liens on assets pursuant to merger, amalgamation or arrangement agreements, stock or asset purchase agreements and similar agreements in respect of the disposition of such assets; |
(27) | Liens granted in connection with royalty or precious metals stream or similar transactions that are customary in the mining business (as determined in the good faith by Senior Management); |
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(29) | Liens securing Obligations in respect of Cash Management Agreements in the ordinary course of business; and |
(30) | options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like permitted to be made under the Indenture. |
Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock Corporation, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Property means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal, or mixed, or tangible or intangible, including Capital Stock in, and other securities of, any other Person.
Preferred Stock, as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up.
Rating Agency means each of Standard & Poors Ratings Group, Inc., Moodys Investors Service, Inc., DBRS Ltd. and Fitch Ratings, Ltd. or, if Standard & Poors Ratings Group, Inc. or Moodys Investors Service, Inc. or DBRS Ltd. or Fitch Ratings, Ltd., or all four of them shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Corporation (as certified by a resolution of the Board of Directors) which shall be substituted for Standard & Poors Ratings Group, Inc. or Moodys Investors Service, Inc. or DBRS Ltd. or Fitch Ratings, Ltd. or all four of them, as the case may be.
Receivable means a right to receive payment arising from a sale or lease of goods or the performance of services by a Person pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an account, chattel paper, or instrument under the Personal Property Security Act (Ontario) as so defined.
Receivables Fees means any fees or interest paid to purchasers or lenders providing the financing in connection with a securitization transaction, factoring agreement or other similar agreement, including any such amounts paid by discounting the face amount of Receivables or participations therein transferred in connection with a securitization transaction, factoring agreement or other similar arrangement, regardless of whether any such transaction is structured as on-balance sheet or off-balance sheet or through a Restricted Subsidiary of the Corporation or an Unrestricted Subsidiary.
Reclamation Obligations means statutory, contractual, constructive or legal obligations, including the principal component of any obligations in respect of letters of credit, bank guarantees, performance or surety bonds or other similar instruments, associated with decommissioning of mining operations, oil and gas operations and power operations and reclamation and rehabilitation costs, including the cost of complying with applicable environmental regulation.
Refinancing Indebtedness means Indebtedness that is incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) (collectively, refinance, refinances and refinanced shall each have a correlative meaning) any Indebtedness existing on the Issue Date or incurred in compliance with the Indenture (including Indebtedness of the Corporation that refinances Indebtedness of any of its Restricted Subsidiaries and Indebtedness of any of its Restricted Subsidiaries that refinances Indebtedness of another Restricted Subsidiary of the Corporation) including Indebtedness that refinances Refinancing Indebtedness; provided, however, that:
(1) | (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Stated Maturity of the Notes; |
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(2) | the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced; |
(3) | such Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness incurred to pay interest or premiums required by the instruments governing such existing Indebtedness and fees and expenses (including any costs of defeasance) incurred in connection therewith); |
(4) | if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favourable to the Holders as those contained in the documentation governing the Indebtedness being refinanced; and |
(5) | Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor that refinances Indebtedness of the Corporation or a Guarantor. |
Restricted Investment means any Investment other than a Permitted Investment.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person (or if no such Person is specified, the Corporation) that is not an Unrestricted Subsidiary.
Sale/Leaseback Transaction means an arrangement relating to property now owned or hereafter acquired whereby the Corporation or its Restricted Subsidiary transfers such property to a Person (other than the Corporation or any of its Subsidiaries) and the Corporation or its Restricted Subsidiary leases it from such Person.
Second Ranking Lien means a Lien upon any Property of the Corporation or any Restricted Subsidiary granted to secure the Notes and the Note Guarantees and any other obligations permitted to be incurred pursuant to clause (2) of the second paragraph under Certain Covenants Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock, which Lien ranks second in priority to any First Ranking Lien on such Property, subject to Permitted Liens.
Secured Indebtedness means any Indebtedness (other than Non-Recourse Debt) of the Corporation or any of its Restricted Subsidiaries secured by a Lien on assets of the Corporation or such Restricted Subsidiary.
Senior Agent means the Person acting as agent from time to time for and on behalf of the Senior Lenders under the Credit Facility, together with its successors and assigns in such capacity;
Senior Lenders means the lenders under the Credit Facility, together with their successors and assigns in such capacity.
Senior Management means any one of the chief executive officer, chief operating officer, chief financial officer and general counsel (or, in each case, any equivalent position) of the Corporation.
Significant Subsidiary means any Restricted Subsidiary of the Corporation: (a) whose proportionate share of the consolidated total assets of the Corporation and all of its Subsidiaries (after intercompany eliminations) exceeds 10.0% as of the end of the most recently completed four fiscal quarters for which internal annual or quarterly financial statements are available; or (b) that contributed in excess of 10.0% of the consolidated net income of the Corporation and its Subsidiaries for the most recently completed four fiscal quarters for which internal annual or quarterly financial statements are available.
Similar Business means any business conducted or proposed to be conducted by the Corporation, its Subsidiaries and the Joint Ventures on the Issue Date (including, without limitation, the exploiting, exploring for, acquiring, developing, processing, gathering, producing, transporting, trading and marketing of commodities) or any other business that is similar, reasonably related, incidental, ancillary or complementary thereto.
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Similar Business Investments means Investments made in (A) the ordinary course of, or of a nature that are customary in, the mining, oil and gas or power generation businesses as a means of exploiting, exploring for, acquiring, developing, processing, gathering, producing, transporting, trading or marketing precious or base metals, oil and gas or power, including through agreements, acquisitions, transactions, interests or arrangements which permit one to share (or have the effect of sharing) risks or costs, comply with regulatory requirements regarding ownership or satisfy other customary objectives in the mining, oil and gas or power generation business, and in any event including, without limitation, Investments made in connection with or in the form of (i) direct or indirect ownership interests in properties or facilities and (ii) operating agreements, development agreements, area of mutual interest agreements, pooling agreements, service contracts, joint venture agreements, partnership or limited liability company agreements (whether general or limited), or other similar or customary agreements, transactions, properties, interests or arrangements, and Investments and expenditures in connection therewith or pursuant thereto; and (B) Persons engaged in a Similar Business.
Spanish Guarantor means CNWL Oil (Espana) S.A., a company formed under the laws of Spain.
Stated Maturity means, with respect to any security or Indebtedness, the date specified in the agreement governing or certificate relating to such security or Indebtedness as the fixed date on which the final payment of principal of such security or Indebtedness is due and payable, including pursuant to any mandatory redemption provision, but not including any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
Subordinated Obligation means any Indebtedness of the Corporation (whether outstanding on the Issue Date or thereafter incurred) that is subordinated or junior in right of payment to the Notes pursuant to a written agreement.
Subsidiary of any Person means (a) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (b) any partnership, joint venture, limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Corporation.
Tax Act means the Income Tax Act (Canada).
Taxes means any present or future tax, duty, levy, impost, assessment or other government charge (including penalties, interest and any other liabilities related thereto) imposed or levied by or on behalf of a Taxing Authority.
Taxing Authority means any government or any political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax.
Total Assets means the total consolidated assets of the Corporation and its Restricted Subsidiaries on a consolidated basis determined in accordance with IFRS, as shown on the most recent consolidated balance sheet of the Corporation (for greater certainty, excluding any assets held by an Unrestricted Subsidiary or Joint Venture other than the equity interests of an Unrestricted Subsidiary or Joint Venture held directly by the Corporation or a Restricted Subsidiary); provided that, for purposes of calculating Total Assets for purposes of testing the covenants under the Indenture in connection with any transaction, such total consolidated assets of the Corporation and its Restricted Subsidiaries shall be adjusted to reflect any acquisitions and dispositions of assets out of the ordinary course that have occurred during the period from the date of the applicable balance sheet through the applicable date of determination.
Unrestricted Subsidiary means:
(1) | NPMMI; |
(2) | MMI; |
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(2) | any other Subsidiary of the Corporation which at the time of determination shall have been designated an Unrestricted Subsidiary by the Board of Directors of the Corporation in the manner provided below; and |
(2) | any Subsidiary of an Unrestricted Subsidiary. |
Following the Issue Date, the Board of Directors of the Corporation may designate any Subsidiary of the Corporation (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation, amalgamation, arrangement or Investment therein) to be an Unrestricted Subsidiary only if:
(1) | such Subsidiary or any of its Subsidiaries does not own any Capital Stock or Indebtedness of or have any Investment in, or own or hold any Lien on any property of, any other Subsidiary of the Corporation that is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; |
(2) | to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Corporation or its Restricted Subsidiaries is permitted under Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock; |
(3) | such designation and the Investment of the Corporation in such Subsidiary complies with Certain CovenantsLimitation on Restricted Payments; |
(4) | such Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly, all or substantially all of the business of the Corporation and its Subsidiaries; |
(5) | such Subsidiary is a Person with respect to which neither the Corporation nor any of its Restricted Subsidiaries has any direct or indirect obligation (excluding, for the avoidance of doubt, any Guarantee or other credit support not otherwise prohibited under the Indenture): |
(a) | to subscribe for additional Capital Stock of such Person; or |
(b) | to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results; and |
(6) | on the date such Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a party to any agreement, contract, arrangement or understanding with the Corporation or any of its Restricted Subsidiaries that would not be permitted under the covenant described under Certain CovenantsLimitation on Affiliate Transactions. |
Any such designation by the Board of Directors of the Corporation shall be evidenced to the Indenture Trustee by filing with the Indenture Trustee a resolution of the Board of Directors of the Corporation giving effect to such designation and an Officers Certificate certifying that such designation complies with the foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture, and any Indebtedness of such Subsidiary shall be deemed to be incurred as of such date.
The Board of Directors of the Corporation may designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Corporation; provided that immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof and the Corporation could incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of Certain CovenantsLimitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock on a pro forma basis taking into account such designation.
Voting Stock of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
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Wholly-Owned Restricted Subsidiary means a Restricted Subsidiary of the Corporation, all of the Capital Stock of which (other than directors qualifying shares) is owned by the Corporation or another Wholly-Owned Restricted Subsidiary.
H-67
Exhibit T3G
Sherritt International Corporation (SIC) (Canada) Parent Company Metals Marketing and Fertilizer Division Active Principal and Head Office (Continued into CBCA on June 3/16) FOR INTERNAL USE ONLY 100% Sherritt International Investments Limited (Barbados) Active Investments in Cuba 100% SM Marketing Inc. (formerly 1341774 Ontario Limited.) (Ontario) Active Finance Services 100% Sherritt International Oil and Gas Limited (Alberta) Pakistan permits Active Oil & Gas Operations Office 100% SICOG Oil and Gas Limited (Barbados) Active Oil & Gas Investments in Cuba 100% 760434 Alberta Limited (Alberta) Inactive Holds installment receipts 100% 672538 Alberta Ltd. o/a SI Supply & Services Holding Company (Alberta) Active 100% 1836774 Ontario Limited (Ontario) (Nov-12-2010) Active 100% common shares 785,315,215 preferred shares 1683740 Alberta Ltd. (Alberta) (June-13-2012) Active Sherritt Gordon International Ltd. (Barbados) Inactive Holding Company Being liquidated SBCT Logistics Ltd. (continued into CBCA on Aug-23-2019) Active 11722573 Canada Ltd. (CBCA) Active Dynatec Technologies Ltd. (On tario 2007 09 14) Active for use for U.S. transactions 100% 100% 100% 100% Sherritt International Loan Holdings (Bahamas) Inc. (Bahamas) Inactive Manage certain financial arrangements New Providence Metals Marketing Inc. (Bahamas) (Jan-13-2012) Active SCON Limited (Ontario) (May-16-2008) Active Construction Company for use by Capital Projects Sherritt Madagascar S.A. (Madagascar) Active 100% 100% 100% 99.9%(3) 100% 100% 100% 100% Canada Northwest Resources Limited (Canada) Inactive Holding Company OG Finance Inc. (Alberta) (Oct-18-2012) Active Paying and Receiving Services SIC Marketing Services (UK) Limited (United Kingdom) (June-25-2013) Active Marketing Services Company Les Entreprises Dynatec Qumin Inc. (Quebec) 100% Canada Northwest Oils (Europe) B.V. (Netherlands) Active Management of Europe based oil & gas operations 100% CNWL Oil (Espana) S.A. (Spain) Act ive Holds all Spanish Oil & Gas interests Sherritt Power (Bahamas) Inc. (Bahamas) Act ive 100% Sherritt Utilities Inc. (Barbados) Active Owner of Sherritt Power share of Energas 33.3% Energas S.A. (Cuba) Active Construction and Operation of Gas Plants and Power Generation facilities 99.4%(2 Sherritt Energie S.A. (Madagascar) Inactive Power Finance Inc. (Alberta) (Oct-18-2012) 100% 100% 100% 100% Services Company for JV 672539 Alberta Ltd. o/a SI Utilities Company (Alberta) Active Services Company f or JV 672540 Alberta Ltd. o/a SI Services Company (Alberta) Active Services Company f or JV SI Finance Ltd. (Ontario) (May-29-2007) Active Finance Services re: Ambatovy US$ transactions Dynatec Engineering Limited (Ontario) Inactive 100% 100% 21,000,000 preferred shares Ambatovy Minerals S.A. (Madagascar) Act ive Mine (1) Dynatec Madagascar S.A. (Madagascar) Active Processing Plant (1) 12% 12% Madagascar Mineral Investments Ltd. (British Virgin Islands ) Active 100% 100% 95% 95% Inactive Dynatec Perforaciones de Mexico, S.A. de C.V. (Mexico) Inactive P.T. Dynatec Drilling Indonesia (Indonesia) Inactive Dynatec Perforaciones International Cobalt Company Inc. ( ICCI ) (Bahamas) Active Acquisition and sale of nickel/ cobalt Moa Nickel S.A. (Cuba) Active Mining and processing of nickel/ cobalt sulphides for sale to ICCI/ COREFCO 50% 50% Act ive Paying and Receiving Services Sherritt International (Bahamas) Inc. (Bahamas) Active Owns 50% of ICCI and Moa The Cobalt Refinery Holding Company Ltd. (New B runswick) Holdin g Company Active Owns 50% interest in COREFCO 50% 100% 100% Highwood Resources Ltd. (Ontario) Active 100% 100% 0.1% Argentina S.A (Argent ina) Inactive 5% Dynatec Inversiones Ltda. (Chile) Inactive 99.9% Dynatec Perforaciones Limitada (Chile) Inactive The Cobalt Refinery Company Inc. ( COREFCO ) (Alber ta) Active Toll refines nickel/cobalt sulphides 50% owned by G eneral Nic kel Restricted S ubs/Gu aran tee Providers under Indenture Audited Financial Statements are prepared/required Corporate Oil Metals Power Coal Technologies Capit al Projects (1) AMSA & DMSA SHAREHOLDERS: MMI: 12%; SAMRI: 47.67%; KO RES: 27.50%; Ambatovy Holdings Limited: 12.83% (as of Dec-12-2017). (2) Stuart Macnaughton, Philippe Beaulne and Hansina Valaydon eac h hold 1 share of Sherritt Energie S.A. (3) Stuart Macnaughton, Philippe Beaulne and Hansina Valaydon each hold 1 share of Sherritt Madagas car S.A. as at December 31, 2019 subject to change: reviewed quarterly)
Exhibit 25.1
OMB APPROVAL | ||||
OMB Number: |
3235-0391 | |||
Expires: |
May 31, 2022 | |||
Estimated average burden | ||||
hours per response |
17 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-6
APPLICATION UNDER SECTION 310(a)(1)
OF THE TRUST INDENTURE ACT OF 1939
FOR DETERMINATION OF ELIGIBILITY OF A FOREIGN PERSON
TO ACT AS INSTITUTIONAL TRUSTEE
AST TRUST COMPANY (CANADA)
(Exact name of trustee as specified in its charter)
CANADA
(Jurisdiction of incorporation or organization)
1 TORONTO STREET, SUITE 1200, TORONTO, ONTARIO, CANADA M5C 2V6
(Address and telephone number of principal executive offices)
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
6201 15TH AVENUE, BROOKLYN, NY 11219 Tel: (718) 921- 8200
(Name, address and telephone number of agent for service)
SHERRITT INTERNATIONAL CORPORATION
(Exact name of obligor as specified in its charter)
CANADA | N/A | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
22 ADELAIDE STREET WEST, SUITE 4220 TORONTO, ONTARIO, CANADA M5H 4E3 |
N/A | |
(Address of principal executive offices) | (Zip code) |
SENIOR SECOND LIEN SECURED NOTES DUE APRIL 30, 2027
(Title of the indenture securities)
Item 1. | General information. |
Furnish the following information as to the trustee
(a) | Name and address of each examining or supervising authority to which it is subject. |
AST TRUST COMPANY CANADA, 1 TORONTO STREET, SUITE 1200, TORONTO, ONTARIO, CANADA M5C 2V6
(b) | Whether it is authorized to exercise corporate trust powers. |
YES
Item 2. | Affiliations with obligor. |
NOT APPLICABLE
Item 3. | Voting securities of the trustee. |
NOT APPLICABLE
Item 4. | Trusteeships under other indentures. |
NOT APPLICABLE
Item 5. | Interlocking directorates and similar relationships with the obligor or underwriters. |
NOT APPLICABLE
Item 6. | Voting securities of the trustee owned by the obligor or its officials. |
NOT APPLICABLE
Item 7. | Voting securities of the trustee owned by underwriters or their officials. |
NOT APPLICABLE
Item 8. | Securities of the obligor owned or held by the trustee. |
NOT APPLICABLE
Item 9. | Securities of underwriters owned or held by the trustee. |
NOT APPLICABLE
Item 10. | Ownership or holdings by the trustee of voting securities of certain affiliates or security holders of the obligor. |
NOT APPLICABLE
Item 11. | Ownership or holdings by the trustee of any securities of a person owning 50 percent or more of the voting securities of the obligor. |
NOT APPLICABLE
Item 12. | Indebtedness of the Obligor to the Trustee. |
NOT APPLICABLE
Item 13. | Defaults by the Obligor. |
NOT APPLICABLE
Item 14. | Affiliations with the Underwriters. |
NOT APPLICABLE
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Item 15. | Substantial Equivalency of Trust Regulation in the Foreign Jurisdiction and Eligibility of United States Trustees to Act as Sole Trustees in the Foreign Jurisdiction. |
(a) | In SEC Release Nos. 33-6889, 39-2661 (Mar. 22, 1991) (the Release), the Commission proposed permitting certain Canadian indenture trustees to act as sole trustees under indentures qualified or to be qualified under the Trust Indenture Act of 1939 (the Act) in connection with offerings under the multijurisdictional disclosure system with Canada. That proposal was adopted with the issuance of Rule 10a-5 pursuant to SEC Release Nos. 33-6902, 34-29354, 29-2267 (June 21, 1991). In the Release, the Commission described the regulation in Canada relating to the supervision and examination of indenture trustees under the Trust Companies Act (Canada) (CTCA), the Loan and Trust Corporations Act (Ontario) (OTCA) and the Deposit Insurance Corporation Act (CDICA). The Release states (footnotes and citations omitted): |
The first prerequisite under Section 310(a) for the Commission to be able to exercise its authority to permit a foreign entity to act as a sole trustee is that such entity be authorized to exercise trust powers in its home country. In both the United States and Canada, corporations authorized to exercise trust powers are predominantly depositary institutions. Trust companies are organized under federal law in both countries, under state law in the United States, and under provincial law in Canada...
Trust companies eligible to act as indenture trustees under the CTCA and Canadian provincial law are authorized under such laws to exercise corporate trust powers. Under the CTCA, no company may commence the business of exercising trust powers unless it obtains a certificate from the Office of the Superintendent of Financial Institutions (OSFI). Powers specified in the CTCA include the power to accept and execute all such trusts of every description and nature as are entrusted to it by any government or person, or committed or transferred to it by the order of a judge or by the order, judgment or decree of any court in Canada or elsewhere.
The second prerequisite under Section 310(a) for the Commission to exercise its authority to permit trusteeship by a foreign entity is that the foreign trustee be subject to supervision or examination substantially equivalent to that applicable to U.S. trustees. In the United States and Canada, regulation of trust companies that are also depositary institutions may be effected through federal agencies, through state or provincial agencies, or concurrently by federal and state or provincial agencies. In all cases, the depositary institutions are subject to substantive regulation of business under the supervision and examination of the responsible agencies. The common objective of these regulatory systems is the safety and soundness of the depositary institution. To this end, U.S. and Canadian examination procedures and the licensing and chartering procedures referred to earlier are designed to assess the financial condition, management and systems of internal control of the supervised institution. ...
Depending on where the trustee is incorporated, a Canadian trust company is subject to supervision and examination by a responsible authority under either the CTCA or parallel provincial law. The conduct of corporate trusteeships under indentures is within the regulatory and supervisory power of the federal and provincial authorities. Canadian trust companies formed under provincial laws that participate in the Canadian deposit insurance system are subject to supervision and examination under the CDICA in addition to concurrent provincial regulation.
3
The CTCA provides an extensive regulatory scheme for corporate trustees subject to federal law. At least annually, such trustees are examined by OSFI. The OSFI describes its fundamental objectives in the examination process to include assessing of financial solvency and ensuring compliance with legislative obligations. The examination of the trust companys condition is required to include inspection of the books of such trustees officers, agents, and employees. The enforcement powers of OSFI include cease and refrain power to correct unsafe or unsound practices and the power to order remedial action as deemed necessary.1
Provincially incorporated trust companies that are members of the Canadian deposit insurance system must be examined annually by a representative of the Canada Deposit Insurance Corporation (CDIC). The examination report for a CDIC member is required to include the examiners opinion whether the operations of the member institution are conducted according to standards of sound business and financial practice, and whether the institution is in satisfactory financial condition. If the CDIC finds any deficiency in these matters, the CDIC will notify the member of the matter requiring remedial action. If corrective measures are not satisfactory, the institutions membership may be revoked and its deposit insurance terminated.
In June 1992, the Trust and Loan Companies Act (Canada) (the TLCA) replaced the CTCA and the Loan Companies Act
(Canada). The TLCA expands the powers of Canadian trust companies, as limited by the business and powers section of the TLCA, to include the capacity of a natural person. In the TLCA, legislators have attempted to provide further requirements with respect to self-dealing transactions involving Canadian trust companies and with respect to the supervision and examination of Canadian indenture trustees.
(b) | In the Release, the Commission determined that the supervision and examination of indenture trustees in Canada and the United States is substantially equivalent. The Release states: |
As early as 1946, the Commission noted the substantial comparability in the treatment of indenture trusteeships by the United States and Canada, including the authorization to exercise trust powers and the system of supervision or examination. In Gatineau Power Company, the Commission, acting pursuant to its exemptive authority under Section 304(d) of the Trust Indenture Act (then limited to the indentures of foreign obligors), permitted the Royal Trust Company of Montreal to act as sole indenture trustee under the qualified indenture of a Canadian obligor. In granting its order, the Commission stated that, except for the requirement of domestic organization, the Canadian institutional trustee otherwise met the requirements of eligibility and qualification under Section 310 of the Act.....
Based on a review of Canadian law, it appears that the supervision or examination under the CTCA or the CDICA applicable to institutional trustees in Canada is substantially equivalent to supervision or examination applicable to institutional trustees in the United States.
(c) | The Canadian system of multijurisdictional disclosure permits United States institutional trustees to be appointed as a trustee under a trust indenture if: |
(i) | the trust indenture under which the obligations are issued or guaranteed is subject to and complies with the Act; and |
(ii) | at least one person or company appointed as trustee under the trust indenture |
(A) | is resident in the local jurisdiction, |
(B) | is authorized to do business in the local jurisdiction, or |
(C) | has filed a duly executed submission to jurisdiction and appointment of agent for service of process in section 3 of the required form. |
1 | A similar regulatory structure is applicable to Ontario trust companies. For example, Ontario trust companies are subject to supervisory prescriptions including the requirement to file financial and other information with the Superintendent of Deposit Institutions. Ontario trust companies are subject to annual examinations by the superintendent. The corporations annual return, which includes financial statements and an auditors report, is required to outline the financial condition and affairs of the corporation for the fiscal year. Regulations under the Ontario statute prescribe forms, fees, retention of records by the trustee, financial statements and method of preparation, calculation of capital base, auditors reports, and qualifications for officers of the trustee. |
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Item 16. | List of exhibits. |
Please see attached the following exhibits filed as a part of this statement of eligibility:
Exhibit 1 | A copy of the letters patent of incorporation of AST Trust Company (Canada) (and two (2) subsequent Letters Patent to amend the incorporating instrument) now in effect. | |||
Exhibit 2 | A copy of the certificate of authority of AST Trust Company (Canada) to commence and carry on business and to exercise corporate trust powers. | |||
Exhibit 3 | NOT APPLICABLE (authorization of AST Trust Company (Canada) to exercise corporate trust powers is contained in the documents specified in paragraph (1) and (2) above) | |||
Exhibit 4 | A copy of the existing Bylaws of AST Trust Company (Canada) (please note that we have not included those by-laws dealing with the authorized share capital of AST Trust Company (Canada) and director and officer compensation). | |||
Exhibit 5 | NOT APPLICABLE (the obligor is not in default) | |||
Exhibit 6 | NOT APPLICABLE (the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority is not applicable) | |||
Exhibit 7 | AST Trust Company (Canada) consent to service of process on Form F-X. | |||
Exhibit 8 | Copies of the following applicable statutes, rules, regulations, and the administrative interpretations of those provisions affecting (a) substantial equivalency of regulation with respect to supervision or examination of the trustee in the foreign jurisdiction to that of trustees subject to the jurisdiction of the laws of the United States, any State, Territory, or the District of Columbia; and (b) eligibility of United States persons to act as sole indenture trustees in the foreign jurisdiction: | |||
|
a) |
SEC Release Nos. 33-6889, 39-2661 | ||
b) |
Trust and Loan Companies Act (Canada) | |||
c) |
Canada Deposit Insurance Corporation Act | |||
d) |
Canada Business Corporations Act; and | |||
e) |
National Instrument 71-101 (see Part 19). |
5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, AST TRUST COMPANY (CANADA), a TRUST COMPANY organized and existing under the laws of CANADA, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of TORONTO, and PROVINCE OF ONTARIO, on the 10th day of MARCH, 2020.
AST TRUST COMPANY (CANADA) | ||
(Trustee) | ||
By: |
/s/ Nelia Andrade | |
(Name and Title) | ||
Nelia Andrade, Authorized Signatory | ||
| ||
(Name and Title) |
6
Exhibit 1
Office of the Superintendent of Financial Institutions Canada |
Bureau du surintendant des institutions financières Canada |
|
/s/ Carolyn Rogers |
||||
Carolyn Rogers Assistant Superintendent, Regulation Sector Surintendante auxiliaire, secteur de la réglementation |
Exhibit 2
Office of the Superintendent of Financial Institutions Canada |
Bureau du surintendant des institutions financières Canada |
|
/s/ Mark Zelmer |
||||
Mark Zelmer Deputy Superintendent, Regulation Sector Surintendant adjoint, Secteur de la réglementation |
Exhibit 4
CANADIAN STOCK TRANSFER & TRUST COMPANY
By-laws
As at April 4th, 2013
CANADIAN STOCK TRANSFER & TRUST COMPANY
(the Company)
BY-LAW NO. 1
A By-law to Regulate the Business and Affairs of the Company
ARTICLE 1
INTERPRETATION
1.01 | Definitions |
In this By-law and all other by-laws and resolutions of the Company, unless the context otherwise requires the following terms shall have the meanings specified:
Act means the Trust and Loan Companies Act or any statute which may be substituted therefore, as amended from time to time.
Board means the Board of Directors of the Company.
Committee means a committee of Directors established pursuant to the By-laws or by the Board.
Company means Canadian Stock Transfer & Trust Company.
Director means a director of the Company.
Meeting of Shareholders means an annual meeting of Shareholders, a special meeting of Shareholders, or both, and includes a meeting of any class or series of any class of Shareholders.
Officer means any natural person designated as an officer of the Company by by-law or by resolution of the Board.
Shareholder means a shareholder of the Company.
1.02 | Interpretation |
(a) | Terms used herein that are defined in the Act shall have the meanings given to those terms in the Act unless defined otherwise herein. |
(b) | Words importing gender shall include the feminine, masculine and neuter genders, and words importing the singular number shall include the plural number and vice versa. |
ARTICLE 2
SHAREHOLDERS
2.01 | Meetings |
Subject to the provisions of the Act, meetings of the Shareholders shall be held at such place within Canada, at such time and on such day as the Board may determine.
2.02 | Notice of Meetings |
Notice of the time and place of each meeting of Shareholders shall be given in accordance with the Act. The accidental failure to give notice of a meeting of Shareholders to any person entitled thereto or any error in such notice not affecting the substance thereof shall not invalidate any action taken at the meeting.
2.03 | Quorum |
At any meeting of Shareholders, the holders, present in person or represented by proxyholders of at least a majority of the outstanding shares of the Company entitled to be voted at the meeting shall constitute a quorum for the transaction of business.
2.04 | Presiding Officer and Secretary |
The Chair of the Board shall preside at meetings of the Shareholders. In the absence of the Chair of the Board, the chair of a meeting of Shareholders shall be appointed by the Board from among the Directors. The Board shall designate a secretary to act at meetings of the Shareholders.
2.05 | Scrutineers |
At any meeting of Shareholders, the chair of the meeting may appoint one or more persons, who may but need not be Shareholders, to serve as scrutineers with such duties as the chair may determine.
2.06 | Voting |
Voting at any meeting of Shareholders shall take place by show of hands except when, either before or after a show of hands, a ballot is required by the chair of the meeting or is requested by any person present and entitled to vote at the meeting. On a show of hands, each person present and entitled to vote at the meeting shall have one vote. On a ballot, each Shareholder present in person or represented by proxyholder at the meeting and entitled to vote thereat shall have one vote for each share entitled to be voted which the Shareholder owns. Any ballot shall be taken in such manner as the chair of the meeting directs.
- 3 -
ARTICLE 3
DIRECTORS AND OFFICERS
3.01 | Number of Directors |
The number of Directors shall be a minimum as required by the Act and a maximum of 15.
3.02 | Fixing Number |
Prior to each annual meeting of Shareholders, the Board shall fix the number of Directors to be elected at such meeting.
3.03 | Filling Vacancy |
Subject to the Act, a quorum of Directors may fill a vacancy among the Directors which exists for any reason.
3.04 | Meetings |
Meetings of the Board may be held at any time and from time to time at any place within or outside Canada. The Chairman, Chief Executive Officer or the President or, in their absence, any two Directors may call a meeting of the Board by giving notice of the place, date and time of such meeting by mail or other means of transmitted or recorded communication or by telephone at least 12 hours before the date of the meeting to each Director at his address last recorded with the Company.
3.05 | Electronic Meetings |
Meetings of the Board or of a committee of directors may be held by means of such telephonic, electronic or other communications facilities as permit all persons participating in the meeting to communicate adequately with each other during the meeting. Each Director so participating shall be deemed to be present at such meeting and such meeting shall be deemed to be held at the place specified in the notice calling such meeting and, in the absence of any such specification, at the place where or from which the Chairman of the meeting shall have presided.
3.06 | Board Procedure |
Subject to the Act, the Board shall have the power to regulate its procedure and shall designate a chair to preside at meetings of Directors. In the event of an equality of votes on any question at a meeting of the Board, the chair of the meeting shall be entitled to a second or casting vote.
- 4 -
3.07 Committees
The Board may appoint such Committees as it deems necessary and, subject to the Act, delegate to those Committees such powers of the Directors and assign to them such duties as the Board considers appropriate.
3.08 | Committee Procedure |
Unless otherwise determined by the Board or provided herein, and subject to the Act, each Committee shall have the power to elect its chair, to regulate its procedure and to fix its quorum; provided that no less than two members of any Committee shall constitute a quorum at a meeting thereof.
3.09 | Compensation |
For each financial year a sum not exceeding $50,000 may be taken by the Board from the funds of the Company as remuneration for their services as Directors and the Directors may from time to time apportion the same among themselves in such manner as they shall think fit. The Directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the Board, of any Committees of the Board, or of Shareholders.
3.10 | Officers |
The Board shall elect from their number a Chair of the Board, a President and CEO having such responsibilities as may be assigned to them by the Board. The Board may elect or appoint such other Officers having such responsibilities as may be assigned to them by the Board.
3.11 | Indemnity and Insurance |
Subject to the limitations contained in the Act, but without limit to the right of the Company to indemnify any other person under the Act or otherwise, the Company shall indemnify a Director or Officer, a former Director or Officer, or a person who acts or acted at the Companys request as a director or officer of a corporation of which the Company is or was a shareholder or creditor, and his/her heirs and personal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him/her in respect of any civil, criminal or administrative action or proceeding to which he/she is made a party by reason of being or having been a Director or Officer or a director or officer of such corporation, if he/she acted honestly and in good faith with a view to the best interests of the Company, and in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he/she had reasonable grounds for believing that his/her impugned conduct was lawful. Subject to the limitations contained in the Act, the Company may purchase and maintain such insurance for the benefit of such persons referred to in this section as the Board may from time to time determine.
- 5 -
ARTICLE 4
EFFECTIVE DATE
4.01 | Head Office |
The head office of the Company shall be located at the place in Canada specified in the letters patent of the Company.
4.02 | Year End |
The financial year end of the Company shall be December 31 in each year.
ARTICLE 5
EFFECTIVE DATE
5.01 | Effective Date |
This By-law shall be effective and come into force upon its confirmation by the shareholders in accordance with the Act.
- 6 -
CANADIAN STOCK TRANSFER & TRUST COMPANY
(the Company)
BY-LAW NO. 3
A By-law Providing for the Change of Name of the Company
The name of the Company is changed from Canadian Stock Transfer & Trust Company to CST Trust Company.
CST TRUST COMPANY
(the Company)
BY-LAW NO. 4
A By-law Providing for the Change of Name of the Company
ARTICLE 1
NAME OF COMPANY
1.01 | Name of Company |
The name of the Company is changed from CST Trust Company/ Société de fiducie CST to AST Trust Company (Canada) / Société de fiducie AST (Canada).
ARTICLE 2
EFFECTIVE DATE
2.01 | Effective Date |
This By-law shall be effective and come into force upon its confirmation by the shareholders in accordance with the Act and approval of the change of name by the Superintendent of Financial Institutions.
Exhibit 7
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-X
Appointment of Agent For Service of Process And Undertaking
A. Name of issuer or person filing (the Filer): | AST TRUST COMPANY (CANADA) |
B. (1) This is [check one]:
☒ | an original filing for the Filer |
☐ | an amended filing for the Filer |
(2) | Check the following box if you are filing the Form F-X in paper in accordance with Regulation S-T rule 101(b)(9) ☐ |
C. Identify the filing in conjunction with which this form is being filed:
Name of Registrant. | Sherritt International Corporation | |
Form Type | Application for Qualification of Indentures on Form T-3 | |
File Number (if known) | 022- | |
Filed by | AST Trust Company (Canada) | |
Date Filed (if filed concurrently, so indicate): | March 10, 2020 (filed concurrently) |
D. Filer is incorporated or organized under the laws of Canada and has its principal place of business at AST TRUST COMPANY (CANADA), 1 TORONTO STREET, SUITE 1200, TORONTO, ONTARIO, M5C 2A6, Attention: DIRECTOR, CORPORATE TRUST (Tel: (416) 682-3841).
E. The Filer designates and appoints AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC (the Agent), located at 6201 15TH AVENUE, BROOKLYN, NY 11219 (Tel: (718) 921-8200), as the agent of the Filer upon whom may be served any process, pleadings, subpoenas, or other papers in.
(a) any investigation or administrative proceeding conducted by the Commission; and
(b) any civil suit or action brought against the Filer or to which the Filer has been joined as defendant or respondent, in any appropriate court in any place subject to the jurisdiction of any state or of the United States or of any of its territories or possessions or of the District of Columbia, where the investigation, proceeding or cause of action arises out of or relates to or concerns the securities in relation to which the Filer acts as trustee pursuant to an application on Form T-6 under Section 310(a)(1) of the Trust Indenture Act of 1939 The Filer stipulates and agrees that any such civil suit or action or administrative proceeding may be commenced by the service of process upon, and
that service of an administrative subpoena shall be effected by service upon such agent for service of process, and that service as aforesaid shall be taken and held in all courts and administrative tribunals to be valid and binding as if personal service thereof had been made
F. The Filer stipulates and agrees in connection with its status as trustee with respect to securities registered on the Form T-3 to appoint a successor agent for service of process and file an amended Form F-X if the Filer discharges the Agent or the Agent is unwilling or unable to accept service on behalf of the Filer at any time during which the securities subject to the indenture remain outstanding
The Filer further undertakes to advise the Commission promptly of any change to the Agents name or address during the applicable period by amendment of this form, referencing the file number of the relevant form in conjunction with which the amendment is being filed.
G. Not applicable.
The Filer certifies that it has duly caused this power of attorney, consent, stipulation and agreement to be signed on its behalf by the undersigned, thereto duly authorized, in the city of Toronto, country of Canada, on March 10, 2020.
Filer.
AST TRUST COMPANY (CANADA) | ||
By: | /s/ Dalisha Dyal | |
Name: Dalisha Dyal | ||
Title: Authorized Signatory | ||
By: | /s/ Nelia Andrade | |
Name: Nelia Andrade | ||
Title: Authorized Signatory |
This statement has been signed by the following person in the capacity and on the date indicated.
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC as authorized Agent for Service of Process of AST TRUST COMPANY (CANADA) | ||
By: | /s/ Paul H. Kim | |
Name: Paul H. Kim Title: Assistant General Counsel | ||
Dated. March 10, 2020 |
Exhibit 8(a)
MULTIJURISDICTIONAL DISCLOSURE; ELIGIBILITY OF..., Release No. 244 (1991)
Release No. 244 (S.E.C. Release No.), Release No. 2261, Release No. 6889, Release No.
39-2261, Release No. 33-6889, Release No. IS - 244, 48 S.E.C. Docket 646, 1991 WL 296481
17 CFR PART 260
S.E.C. Release No.
Securities Act of 1933
Trust Indenture Act of 1939
International Series
SECURITIES AND EXCHANGE COMMISSION (S.E.C.)
MULTIJURISDICTIONAL DISCLOSURE; ELIGIBILITY OF CANADIAN TRUSTEES AND EXEMPTION FOR
CANADIAN TRUST INDENTURES FROM SPECIFIED PROVISIONS OF THE TRUST INDENTURE ACT
File No. S7-19-89
RIN: 3235-AC64
March 22, 1991
*1 AGENCY: Securities and Exchange Commission ACTION: Proposed Rules.
SUMMARY: The Securities and Exchange Commission (Commission) is publishing for comment a proposed rule under the Trust Indenture Act of 1939 (Trust Indenture Act) to permit persons authorized to exercise corporate trust powers and subject to federal supervision or examination under the laws of Canada to act as sole trustees under indentures qualified or to be qualified under the Trust Indenture Act in connection with offerings under the Commissions proposed multijurisdictional disclosure system with Canada. If the new proposal, which implements authority recently granted to the Commission by the Trust Indenture Reform Act of 1990 (Reform Act), is adopted, it appears that the rule changes relating to indenture trusteeships in the Commissions reproposal of the multijurisdictional disclosure system would not be necessary. In addition, public comment is sought on a proposed rule under the general exemptive authority of recently amended Section 304(d) of the Trust Indenture Act to exempt trust indentures of Canadian issuers filing registration statements in the United States under the multijurisdictional disclosure system from the operation of specified provisions of the Trust Indenture Act. The rule would be available for trust indentures subject to the Canada Business Corporations Act or to the Business Corporations Act, 1982 (Ontario).
DATES: Comment letters should be received on or before [30 days after publication in the Federal Register].
ADDRESSES: Comments should be submitted in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Mail Stop 69, Washington, D.C. 20549. Comment letters should refer to File No. S71989. All comment letters received will be made available for public inspection and copying in the Commissions Public Reference Room, 450 Fifth Street, N.W., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Felicia Smith or Michael Hyatte, (202) 2722573, Division of Corporation Finance, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549.
SUPPLEMENTARY INFORMATION: The Commission is proposing for comment new Rules 4d9 and 10a5 under the Trust Indenture Act.1
I. EXECUTIVE SUMMARY AND BACKGROUND
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The Commission is proposing two new rules under the Trust Indenture Act intended to facilitate the implementation of the Commissions proposed Multijurisdictional Disclosure System with Canada (MJDS).2 Proposed Rule 10a5 would permit Canadian trustees subject to supervision or examination under the Trust Companies Act (Canada) (CTCA)3 or the Canada Deposit Insurance Corporation Act (CDICA)4 to act as sole indenture trustees for offerings under the MJDS. Proposed Rule 4d9 would exempt trust indentures subject to the Canada Business Corporations Act (CBCA)5 or the Business Corporations Act, 1982 (Ontario) (OBCA)6 from the operation of specified provisions of the Trust Indenture Act. In proposing these rules, the Commission is exercising authority granted under the amendments to the Trust Indenture Act included in the Reform Act.7
*2 The reproposed MJDS would permit Canadian issuers meeting eligibility criteria to satisfy certain securities registration and reporting requirements under the securities laws of the United States through disclosure documents prepared in accordance with the requirements of Canadian regulatory authorities. Under the Commissions October 1990 reproposal of the MJDS, debt offerings would be subject to all the requirements of the Trust Indenture Act except, as discussed below, the requirement that there be a United States trustee.
In proposing the MJDS, the Commission noted that the U.S. trustee requirement could create an impediment to the efficient use of the multijurisdictional system by Canadian issuers and disrupt established Canadian business practices, because Canadian trust indentures invariably provide for all trustees to be Canadian registered trust companies....8 Noting that its existing exemptive authority under Section 304(d) of the Trust Indenture Act9 was limited to case-by-case determinations, and exercisable only through orders, the Commission proposed rules and forms creating procedures for application to the Commission for exemptions from the U.S. trustee requirement for offerings made under the MJDS.10
The Reform Act has provided the Commission with the authority to permit foreign persons to act as sole indenture trustees as a class or on a case-by-case basis. This change has eliminated the need for Canadian issuers conducting debt offerings under the MJDS to seek orders for exemption from the U.S. trustee requirement on a case-by-case basis as would have been required under the reproposed MJDS. As the Senate Report notes, [r]ecognizing developments in the internationalization of the securities markets, [amended Section 310(a)(1)11 authorizes] the Commission to allow, by rule or order, foreign persons to act as sole trustees under a qualified indenture if the foreign persons can exercise trust powers and are subject to regulation substantially equivalent to that applicable to United States trustees.12 The amended statute further provides that, in granting such permission, the Commission shall consider the eligibility of U.S. institutional trustees to act as sole trustee in the foreign jurisdiction.
The Commission is publishing for public comment proposed Rule 10a5 relating to the eligibility of Canadian trustees. The rule would permit a Canadian trust company subject to supervision or examination by Canadian federal authorities under the CTCA or the CDICA to act as sole trustee in connection with offerings under the MJDS. It is contemplated that if proposed Rule 10a5 is adopted previously proposed Rules 4d1 through 4d6 would not be necessary.
As a further step toward implementing the MJDS with Canada, the Commission is proposing to exempt trust indentures that are subject to the CBCA or the OBCA from the operation of specified provisions of the Trust Indenture Act. Under its expanded statutory authority, the Commission may, by rule or order, exempt conditionally or unconditionally any indenture from one or more provisions of the Trust Indenture Act. Section 304(d) provides that such exemptive authority may be exercised by the Commission if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the Trust Indenture Act. Proposed Rule 4d9 would exempt trust indentures of issuers that are subject to the CBCA or the OBCA from the operation of Sections 310 through 318 of the Trust Indenture Act,13 except for paragraphs (a)(1), (a)(2), and (a)(5) of Section 310,14 which specify eligibility standards for institutional trustees, and Section 316(b),15 which protects the unconditional right of any holder of any indenture security to
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receive payment of principal and interest when due and payable, and to institute suit for the enforcement of past due payments of principal and interest.
II. DISCUSSION
A. ELIGIBILITY OF CANADIAN TRUSTEES
1. Statutory Requirements
*3 Section 310(a) of the Trust Indenture Act requires that there shall at all times be at least one corporate trustee domiciled in the United States, authorized to exercise corporate trust powers and subject to supervision or examination by federal or state authority. Through the Reform Act, Congress has recognized that the legislative objectives of the Trust Indenture Act may be fulfilled by corporate trustees organized outside the United States. As amended by the Reform Act, Section 310(a) of the Trust Indenture Act empowers the Commission by rule or by order to permit a corporation or other person organized and doing business under the laws of a foreign country to act as sole trustee under a qualified indenture if such person is authorized under the laws of its domicile to exercise corporate trust powers and is subject to supervision or examination by the foreign government substantially equivalent to the supervision or examination applicable to institutional trustees in the United States. The amendment requires the Commission to consider the extent to which under the laws of the foreign government a United States institutional trustee is eligible to act as sole trustee in the foreign jurisdiction.16
As early as 1946, the Commission noted the substantial comparability in the treatment of indenture trusteeships by the United States and Canada, including the authorization to exercise trust powers and the system of supervision or examination. In Gatineau Power Company,17 the Commission, acting pursuant to its exemptive authority under Section 304(d) of the Trust Indenture Act (then limited to the indentures of foreign obligors),18 permitted the Royal Trust Company of Montreal to act as sole indenture trustee under the qualified indenture of a Canadian obligor. In granting its order, the Commission stated that, except for the requirement of domestic organization, the Canadian institutional trustee otherwise met the requirements of eligibility and qualification under Section 310 of the Act.19
The first prerequisite under Section 310(a) for the Commission to be able to exercise its authority to permit a foreign entity to act as a sole trustee is that such entity be authorized to exercise trust powers in its home country. In both the United States and Canada, corporations authorized to exercise trust powers are predominantly depositary institutions. Trust companies are organized under federal law in both countries, under state law in the United States, and under provincial law in Canada.
Under the U.S. regulatory scheme for institutional trustees, the Comptroller of the Currency, who has supervisory responsibility for national banks, is authorized to grant special permits to national banks authorizing the exercise of trust powers to the same extent as such powers are allowed to state banks in the same jurisdiction.20 State banking laws create licensing authority for the conduct of corporate trust powers for banks chartered under their authority. For example, a bank that is also authorized as a trust company under New York law has the fiduciary power [t]o take, accept and execute any and all such trusts, duties and powers of whatever nature and description as may be conferred upon or entrusted or committed to it by any persons, or any ... corporation.21
*4 Trust companies eligible to act as indenture trustees under the CTCA and Canadian provincial law22 are authorized under such laws to exercise corporate trust powers. Under the CTCA, no company may commence the business of exercising trust powers unless it obtains a certificate from the Office of the Superintendent of Financial Institutions (OSFI).23 Powers specified in the CTCA include the power to accept and execute all such trusts of every description and nature as are entrusted to it by any government or person, or committed or transferred to it by the order of a judge or by the order, judgment or decree of any court in Canada orelsewhere.24
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The second prerequisite under Section 310(a) for the Commission to exercise its authority to permit trusteeship by a foreign entity is that the foreign trustee be subject to supervision or examination substantially equivalent to that applicable to U.S. trustees. In the United States and Canada, regulation of trust companies that are also depositary institutions may be effected through federal agencies, through state or provincial agencies, or concurrently by federal and state or provincial agencies. In all cases, the depositary institutions are subject to substantive regulation of business under the supervision and examination of the responsible agencies. The common objective of these regulatory systems is the safety and soundness of the depositary institution. To this end, U.S. and Canadian examination procedures and the licensing and chartering procedures referred to earlier are designed to assess the financial condition, management and systems of internal control of the supervised institution.
National banks in the United States are subject to examination at least annually by the Comptroller of the Currency,25 a process that includes preparation of an annual report of the banks conduct of trust activities.26 National banks acting as trustees must segregate assets held in fiduciary capacities from general assets and maintain separate books and records for assets held in fiduciarycapacities.27 Trust powers granted by the Comptroller are subject to revocation if, in the Comptrollers opinion, such powers have been exercised unlawfully or unsoundly.28
Depending on where the trustee is incorporated, a Canadian trust company is subject to supervision and examination by a responsible authority under either the CTCA or parallel provincial law. The conduct of corporate trusteeships under indentures is within the regulatory and supervisory power of the federal and provincial authorities. Canadian trust companies formed under provincial laws that participate in the Canadian deposit insurance system are subject to supervision and examination under the CDICA29 in addition to concurrent provincial regulation.
The CTCA provides an extensive regulatory scheme for corporate trustees subject to federal law. At least annually, such trustees are examined by OSFI.30 The OSFI describes its fundamental objectives in the examination process to include assessing of financial solvency and ensuring compliance with legislative obligations.31 The examination of the trust companys condition is required to include inspection of the books of such trustees officers, agents, and employees.32 The enforcement powers of OSFI include cease and refrain power to correct unsafe or unsound practices and the power to order remedial action as deemed necessary.33
*5 Provincially incorporated trust companies that are members of the Canadian deposit insurance system must be examined annually by a representative of the Canada Deposit Insurance Corporation (CDIC).34 The examination report for a CDIC member is required to include the examiners opinion whether the operations of the member institution are conducted according to standards of sound business and financial practice, and whether the institution is in satisfactory financial condition.35 If the CDIC finds any deficiency in these matters, the CDIC will notify the member of the matter requiring remedial action.36 If corrective measures are not satisfactory, the institutions membership may be revoked and its deposit insurance terminated.37
Based on a review of Canadian law, it appears that the supervision or examination under the CTCA or the CDICA applicable to institutional trustees in Canada is substantially equivalent to supervision or examination applicable to institutional trustees in the United States. Commenters are specifically requested to address the substantial equivalence of the supervision and examination of institutional trustees in Canada to that in the United States. In particular, commenters are invited to identify the significant requirements and procedures, employed in the supervision or examination of institutional trustees by U.S. authorities, that the Commission should consider in determining whether institutional trustees are subject to substantially equivalent supervision and examination by Canadian authorities. Commenters should be aware that these requirements and practices may also have applicability as the Commission considers issuance of rules or orders permitting institutions from other jurisdictions to act as sole trustees.
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2. Eligibility of U.S. Institutions to Serve as Trustees in Canada
In addition to the two conditions for the Commission to allow foreign institutions to act as sole trustees, the Trust Indenture Act, as amended, directs that the Commission consider whether under the laws of the foreign jurisdiction a United States institutional trustee would be eligible to act as sole trustee under an indenture relating to securities sold in the foreign jurisdiction in question.
The Canadian proposal for a system of multijurisdictional disclosure parallel to MJDS will allow United States issuers to comply with Canadian registration and reporting requirements with the use of disclosure documents prepared in conformity with United States regulations. The system under consideration in Canada also would generally permit United States institutional trustees to serve as sole indenture trustees in offerings under the system by dispensing with requirements that the trustee be a Canadian resident.38 However, as currently drafted, British Columbia law concerning the residence of the trustee would not be subject to that dispensation.39 Thus, an issuer offering or selling debt securities in the province of British Columbia would be required to use a trustee that is eligible under British Columbia law.40 The British Columbia authorities have advised that they intend to seek legislative amendments that would allow United States trustees to serve under indentures in such offerings. However, any such amendment is unlikely to be effected prior to adoption of the MJDS. Comment is requested as to the impact of the current British Columbia requirement. Should adoption of proposed Rule 10a5 be deferred until a comparable change in British Columbia requirements is adopted? Alternatively, should the rule be revised so that it does not apply to trustees organized under British Columbia law or for securities of obligors organized under British Columbia law?
3. Proposed Rule 10a5
*6 Proposed Rule 10a5 would permit a trust company incorporated under the laws of Canada or a political subdivision of Canada that is authorized to carry on the business of a trust company and subject to supervision or examination pursuant to the CTCA or the CDICA (Canadian Trustee) to act as sole trustee under an indenture qualified under the Trust Indenture Act for offerings under MJDS by relieving the Canadian Trustee from the requirement of U.S. domicile. The Commission anticipates that adoption of the rule will be considered concurrently with adoption of the MJDS.
Under the proposed rule, each eligible Canadian Trustee would file a consent to service of process and power of attorney on Form FX, with the registration statement covering the indenture securities to which the trusteeship relates. Otherwise, the rule will be self-executing, requiring no further action by the obligor or the trustee to establish the trustees eligibility under amended Section 310(a) of the Trust Indenture Act.
No statement of eligibility on Form T141 would be required, because the remaining requirements of Section 310(a) for authorization to exercise corporate trust powers and minimum capitalization would necessarily have been satisfied by a Canadian Trustee. As discussed previously, the Canadian system for registration and incorporation of trust companies effectively provides that only a company so registered or incorporated is authorized to exercise corporate trust powers. The $150,000 minimum combined capital and surplus requirement of Section 310(a)(2)42 is met because, under Canadian law, a federally incorporated trust company must have a minimum unimpaired paid-up capital stock of $1,000,000 (Can.).43 Provincially regulated trust companies are similarly subject to capitalization requirements exceeding the amount required by Section 310(a)(2). In Ontario, a minimum capital base of $10,000,000 (Can.) is required.44 In Quebec, the minimum is $5,000,000 (Can.) in common shareholders equity.45 The final standard of Section 310(a), the proscription of trusteeships by the obligor itself or any of its affiliates, is met because, according to Canadian authorities, such a trusteeship would be a fatally impermissible conflict of interest under the CBCA and comparable provincial law.46 In light of these factors, comment is requested concerning whether Canadian Trustees should nevertheless be required to file the Form T1 as an exhibit to registration statements under the MJDS, to provide information concerning eligibility under Section 310(a).
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As noted above, it appears that, on adoption of proposed Rule 10a5, the Commissions prior proposal for case-by-case determination of Canadian Trustee eligibility would not be necessary. Commenters are nonetheless requested to address whether it would be preferable to adopt both approaches, as alternative methods of authorizing service by Canadian trustees.
As proposed, the rule would limit the use of Canadian Trustees to offerings under the MJDS. Comment is requested as to whether this limitation is appropriate, or whether Canadian Trustees should be permitted to act as trustees under indentures for offerings other than those eligible under the MJDS.
*7 Comment is also requested on the rules limitation to trustees supervised or examined under the CTCA or the CDICA. The four trust companies that, at the present time, conduct virtually all of the indenture trusteeships in Canada are subject to supervision and examination under either the CTCA or the CDICA.47 Nonetheless, comments are requested as to whether proposed Rule 10a5 should be expanded to cover provincially incorporated trust companies not subject to any form of Canadian federal supervision or examination. In this regard, commenters should address the substantial equivalence of the provincial regulatory systems to the system of supervision or examination applicable to institutional trustees in the United States.
B. EXEMPTION OF CANADIAN TRUST INDENTURES FROM SPECIFIED PROVISIONS OF THE TRUST INDENTURE ACT
1. Trust Indenture Regulation in the United States and Canada
The primary focus of the Trust Indenture Act is the protection of investors in debt securities, including the provision of a means for enforcing the collective rights of holders of such debtsecurities.48 Enacted to provide a regulatory scheme for publicly-offered securities issued under trust indentures, the Trust Indenture Act was designed to eliminate those corporate trust practices that were viewed as injurious to the capital markets, to investors, and to the general public,49 and to provide a mechanism for correcting perceived deficiencies in the trust indenture instrument.50 In general, the statute provides for appointment of an independent and qualified trustee,51 fixes preferential collection rights in favor of indenture security holders (holders),52 establishes means for communication among holders,53 requires reports to holders from both the obligor54 and the trustee,55 prescribes a high standard of care for the trustee,56 and confers legal standing on the trustee to enforce indenture provisions.57 As a result of the Reform Act amendments, the statutory provisions in Sections 310 through 318(a) of the Trust Indenture Act58 are now deemed part of each indenture to be qualified under the Act by operation of law, and indenture provisions inconsistent with required provisions of the Act have no legal effect.
The Trust Indenture Act provides that debt security holders, as third-party beneficiaries of the indenture contract, will have specific rights under the indenture and the Act. Preeminent among those rights is that no provision of the indenture or of the security may impair or affect the right of any holder of a security issued under the indenture to receive payment of principal and interest, when due and payable, or to sue for past due payments. This right to pursue remedies upon payment default cannot be impaired or affected without such holders individual consent.59 In addition, the Reform Act clarified that a holder has a private right of action to enforce the rights and duties prescribed by Sections 310318(a) of the Trust Indenture Act.60
*8 The CBCA governs trust indentures61 for debt obligations issued or to be issued thereunder by a company incorporated or continued62 under the CBCA in a public distribution.63 To the extent the trust indenture, indenture securities, or the lien created by the indenture is subject to the law of a province or another country that is substantially equivalent to the CBCA, the Director General of Corporations appointed under Section 260 of the CBCA64 may exempt the trust indenture from the requirements of the CBCA.65 The CBCA, among other things, prohibits appointment of any person as indenture trustee with
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a material conflict of interest,66 sets forth a high standard of care by the trustee in the exercise of its powers,67 and provides means for communication among holders.68
The CBCA and OBCA provisions governing trust indentures are modeled on the investor protection provisions of the Trust Indenture Act of 1939.69 Several of the legislative objectives of the CBCA are drawn from the Necessity for Regulation embodied in Section 302 of the Trust Indenture Act,70 including providing (a) full and fair disclosure at issuance and throughout the life of the indenture securities, (b) means by which holders may on the basis of the disclosure provided take concerted action to protect their interests, and (c) the services of a disinterested trustee who in the administration of its trust will conform to the high standards of conduct now observed by the more conscientious trust institutions.71 The CBCA, which requires the parties to the indenture to adhere to standards and obligations imposed by the statute, is self-executing.72
The Trust Indenture Act and the CBCA include many comparable investor protection provisions. For example, each statute recognizes the pivotal role of an independent trustee in the administration of the indenture on behalf of widely-dispersed public debt security holders. While the Trust Indenture Act establishes a finite list of enumerated relationships73 that upon default under the indenture would be disqualifying conflicts of interest,74 the CBCA has a general prohibition on any material conflict of interest.75
Similarly, the reasonably prudent trustee standard of care76 mandated by the CBCA provides that trustees under Canadian indentures are subject to standards comparable to those applicable to trustees under the Trust Indenture Act.77 Neither statute permits exculpatory provisions in the indenture;78 the prohibition under the CBCA is extended to include any agreement between the trustee and holders of debt obligations, or the trustee and issuers or guarantors.79
Finally, investors under each statute are provided timely information on the securities and obligor,80 and afforded the means to collectively enforce their rights under the trust indenture. For example, each statute requires the trustee to provide information on security holders to persons who satisfy the statutory prerequisites.81 Thus, information on defaults and the means to communicate with other holders concerning common interests under the indenture are present.
*9 In one important respect, however, CBCA regulation of trust indentures does not correspond to the investor protection mandated by Sections 310 to 318 of the Trust Indenture Act. The CBCA does not contain a provision comparable to Section 316(b) of the Trust Indenture Act,82 which affords substantive protection to holders.83 That section provides that each holder has a right to receive payments of principal and interest, when due and payable, and to institute suit therefor. It is intended to protect minority holders from debt readjustment plans that are not supervised by a bankruptcy court,84 and is a central part of the protections afforded by the Trust Indenture Act.
The OBCA85 contains provisions that are virtually identical to the provisions of the CBCA. The OCBA is applicable to all trust indentures used in connection with debt offerings made by prospectus in Ontario whether or not made by an Ontario corporation. Several other Canadian political subdivisions86 also have enacted statutes regulating trust indentures, which appear to be modeled on the CBCA. With the exception of the British Columbia Company Act, these statutes are applicable only to issuers incorporated under such statutes. The OBCA87 has a provision permitting exemptions from its requirements relating to trust indentures for indentures prepared in accordance with the trust indenture regulations in other jurisdictions, but that exemptive authority has never been used.
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The British Columbia Company Act appears to have several variations from the CBCA. While a number of those variations appear to be insignificant,88 there may be substantive differences relating to the conflict of interest standard89 and the duty of care by the trustee in exercising its powers and discharging its duties90 under the indenture.
2. Proposed Rule 4d9.
In light of the comparability of the investor protection of the Act, the CBCA and the OBCA, it appears to be in the public interest to facilitate offerings under the MJDS by exempting indentures subject to the CBCA or the OBCA from most provisions of the Act. As proposed, Rule 4d9 would exempt from the operation of Sections 310(a)(3) and (4), Sections 310(b) through 316(a), and Sections 316(c) through 318(a) of the Trust Indenture Act any trust indenture subject to the CBCA or the OBCA. Thus, where an MJDS issuer was not federally incorporated, but was incorporated in a Canadian province, the exemption would be available provided debt securities were being offered by prospectus in Ontario, because the trust indenture would be subject to the OBCA. Because neither the CBCA nor the OBCA contains a provision comparable to Section 316(b) of the Act, Rule 4d9 as proposed would not contain an exemption from Section 316(b), and Section 316(b) would be applicable to indentures for MJDS offerings as a matter of law. Thus, protection against impairment of the right to principal and interest without an individual holders consent would be in force. In addition, the proposed Rule would not provide an exemption from the trustee eligibility standards of Section 310(a)(1), (a)(2) and (a)(5) concerning authority to exercise corporate trust powers, capital and surplus, and prohibited obligortrustee conflicts. A trustee permitted to serve under proposed Rule 10a5 would meet those standards.
*10 Trust indenture laws of several Canadian political subdivisions appear to offer investor protection comparable to that provided by the CBCA and OBCA.91 Comment is specifically requested concerning whether the proposed exemption should be expanded to include trust indentures subject to other comparable Canadian political subdivisions laws.
The Ontario authorities have advised that in connection with MJDS they intend to use their existing exemptive authority under Section 46(4)92 to provide a blanket exemption from the OBCAs requirements for trust indentures subject to the Trust Indenture Act which are used by United States issuers in connection with offerings under the multijurisdictional disclosure system. With the exception of British Columbia, those other Canadian political subdivisions that have statutes regulating trust indentures would not be required to take similar action because those statutes are only applicable to companies incorporated in those jurisdictions.93
With respect to British Columbia, the British Columbia Company Act currently does not contain exemptive authority. Thus, any trust indenture for a debt offering made in British Columbia would be subject to that statute, and United States issuers would not automatically be able to make debt offerings in British Columbia because they have indentures that comply with the Trust Indenture Act. In addition, it appears that there may be substantive differences between the British Columbia Company Act and the CBCA with respect to the standards for conflict of interest and duty of care applicable. Comment is specifically requested on whether the differences in the conflict of interest and duty of care standards of the British Columbia Company Act and the CBCA are substantial and whether the proposed exemption should be expanded to include indentures subject to the British Columbia Company Act. Comment is further requested on whether adoption of proposed Rule 4d9 should be deferred until such time as United States issuers offering securities under the multijurisdictional system in British Columbia would be eligible to use trust indentures complying with the Trust Indenture Act.
Comment is requested on the analysis of provisions of Canadian statutes that afford protection to holders of indenture securities and whether investors enjoy protection comparable to that provided by the Trust Indenture Act as a result of applicable Canadian and provincial law. Specifically, comment is requested on the conflict of interest standard applicable under the CBCA and each provincial act and, in particular, whether or not judicial interpretation of material conflict of interest is comparable to the enumerated conflicts proscribed by paragraph (b)(1) through (10) of Section 310 of the Trust Indenture Act. Comment is requested concerning whether the discretion of the trustee to withhold notice of payment defaults under the CBCA and the OBCA is comparable to the notice requirement of Section 315(b) of the Trust Indenture Act. Comment also is requested
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concerning the scope of the proposed exemptive rule, specifically whether the exemption proposed by Rule 4d9 is too broad (i.e., should Canadian trust indentures continue to be subject to the operation of other provisions of the Trust Indenture Act), or too narrow (i.e., should Canadian trust indentures be exempt from the operation of additional provisions of the Trust Indenture Act). Finally, comment is requested concerning whether, as drafted, the proposed rule should be limited to offerings under the MJDS or expanded to other offerings by Canadian issuers.
III. COST BENEFIT ANALYSIS
*11 To evaluate the benefits and costs associated with the described rules, the Commission requests views and data as to the costs and benefits associated with procedures under the rules. The rules relate to a determination that Canadian trustees are eligible to act as sole trustees under qualified indentures, as a result of the amendment to Section 310(a)(1) of the Trust Indenture Act modifying eligibility standards for institutional trustees, and provides an exemption from specified provisions of the Trust Indenture Act. The benefit to Canadian obligors and Canadian trustees (the only entities eligible for exemption under the proposed rules) of permitting appointment of Canadian trustees for offerings made in the United States by Canadian obligors and exempting trust indentures of such obligors from the operation of specified provisions of the Trust Indenture Act greatly outweighs any burden. Any impact on such entities would be minimal.
The rules will also benefit public security holders by facilitating the expansion of investment opportunities for United States citizens by removing barriers to public issuances of debt securities by Canadian registrants in the United States.
IV. REQUEST FOR COMMENTS
Any interested persons wishing to submit written comments on the proposed rules on other matters that might have an impact on the rules are requested to do so.
Persons wishing to submit written comments should file three copies thereof with Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Comment letters should refer to File No. S71989. All comments received will be available for public inspection and copying in the Commissions Public Reference Room, 450 Fifth Street, N.W., Washington, D.C. 20549.
V. INITIAL REGULATORY FLEXIBILITY ACT ANALYSIS
The Initial Regulatory Flexibility Analysis has been prepared in accordance with 5 U.S.C. 603. It relates to proposed rules to effectuate the provisions of the Trust Indenture Act, as amended by the Reform Act. As proposed, Rule 4d9 under Section 304(d) of the Trust Indenture Act would provide an exemption for trust indentures of Canadian issuers filing registration statements in the United States under the MJDS from the operation of specified provisions of the Trust Indenture Act. The proposed rule would be available for trust indentures that are subject to either the CBCA or the OBCA. Proposed Rule 10a5 under the Trust Indenture Act would permit persons authorized to exercise corporate trust powers under Canadian federal or provincial law and subject to federal supervision or examination in Canada to act as institutional trustees under indentures qualified or to be qualified under the Trust Indenture Act.
Both proposals reflect the development of global securities markets that was a basis for recent amendments to the Trust Indenture Act, and are proposed to be promulgated to remove barriers to and effectuate increased participation by foreign issuers in the securities markets of the United States. As a result, it is expected that public security holders resident in the United States would have expanded investment opportunities.
*12 The only persons eligible for exemption under the proposals are Canadian issuers and Canadian trustees, none of which qualify as small entities within the meaning of 17 CFR 260.07 under the Trust Indenture Act. Furthermore, underwriters are unaffected by the requirements of the Trust Indenture Act related to exemption of the trust indenture and appointment of a
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foreign institutional trustee. Accordingly, on the basis of the Commissions initial analysis, it does not appear that the proposals, if adopted, would have a significant impact on a substantial number of small entities.
Copies of the Initial Regulatory Flexibility Analysis, which is summarized herein, are available from Felicia Smith, Division of Corporation Finance, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission requests views and data as to the impact on small entities, within the meaning of 17 CFR 260.07 under the Trust Indenture Act, which may assist it in preparation of the Final Regulatory Flexibility Analysis.
VI. STATUTORY BASIS AND TEXT OF PROPOSED REGULATIONS AND FORM
Rules 4d9 and 10a5 are proposed pursuant to the authority of Sections 304, 305, 307, 308, 310, 314, and 319 of the Trust Indenture Act of 1939, as amended [15 U.S.C. 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, and 77sss].
LIST OF SUBJECTS IN 17 CFR Part 260
Reporting and recordkeeping requirements, Securities, Trusts and trustees.
VII. TEXT OF REGULATIONS AND FORMS
In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
PART 260GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF 1939
1. The authority citation for Part 260 continues to read:
AUTHORITY: 15 U.S.C. 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss.
2. By adding new § 260.4d9 as follows:
§ 260.4d9 Exemption for Canadian Trust Indentures from Specified Provisions of the Act.
Any trust indenture filed in connection with offerings on a registration statement on Form F7, F8, F9, or F10 [§§ 239.37 through 239.40 of this chapter] shall be exempt from the operation of sections 310(a)(3) and 310(a)(4), sections 310(b) through 316(a), and sections 316(c) through 318(a) of the Act; provided that the trust indenture is subject to
(a) the Canada Business Corporations Act, R.S.C. 1985; or
(b) the Business Corporations Act, 1982 (Ontario), S.O. 1982.
3. By adding new § 260.10a5 as follows:
§ 260.10a5 Eligibility of Canadian Trustees.
(a) Subject to paragraph (b) of this rule [17 CFR 260.10a5], any trust company, acting as trustee under an indenture qualified or to be qualified under the Act and filed in connection with offerings on a registration statement on Form F7, F8, F9, or F
10 [§§ 239.37 through 239.40 of this chapter] that is incorporated and regulated as a trust company under the laws of Canada or
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
10 |
MULTIJURISDICTIONAL DISCLOSURE; ELIGIBILITY OF..., Release No. 244 (1991)
any of its political subdivisions and that is subject to supervision or examination pursuant to the Trust Companies Act (Canada), R.S.C. 1985, or the Canada Deposit Insurance Corporation Act, R.S.C. 1985 shall not be subject to the requirement of domicile in the United States under section 310(a) of the Act [15 U.S.C. 77jjj(a) ].
*13 (b) Each trustee eligible for appointment under this rule shall file as part of the registration statement for the securities to which the trusteeship relates a consent to service of process and power of attorney on Form FX [[§ 249.250 of this chapter].
***
By the Commission.
Jonathan G. Katz
Secretary
Footnotes
1 | 15 U.S.C. 77aaa et seq. |
2 | See Release Nos. 336879 (October 22, 1990) [55 FR 46288] (Reproposing Release) and 336841 (July 24, 1989) [54 FR 32226] (Proposing Release). |
3 | Trust Companies Act (Canada), R.S.C. 1985. |
4 | Canada Deposit Insurance Corporation Act, R.S.C. 1985. |
5 | Canada Business Corporations Act, R.S.C. 1985 §§ 82 93. |
6 | Business Corporations Act, 1982 (Ontario), S.O. 1982 §§ 46 52. |
7 | Title IV, P.L. No. 101550, 1990 U.S. CONG. AND AD. NEWS (104 Stat.) 2713, 272132. |
8 | Proposing Release at 32246. |
9 | 15 U.S.C. 77ddd(d). |
10 | Proposed Rules 4d1 through 4d6 and proposed Form T5. See Proposing Release at 3224648 and Reproposing Release at 4590910. |
11 | 15 U.S.C. 77jjj(a)(1). |
12 | Senate Report No. 101155, 101st Cong., 2d Sess., 35 (1989) ( Senate Report). |
13 | 15 U.S.C. 77jjj 77rrr. |
14 | 15 U.S.C. 77jjj(a)(1), (a)(2), and (a)(5). |
15 | 15 U.S.C. 77ppp(b). |
16 | See infra Section II.A.2. |
17 | Commission File Nos. 26439, 22548 (June 27, 1946). |
18 | Section 304(d) in its original form authorized the Commission, acting on the application of a foreign obligor, to issue orders exempting the issuer from one or more provisions of the Act on a case-by-case basis. The Reform Act generalized the Commissions authority. P.L. 101550 § 403(2). |
19 | Securities and Exchange Commission, Manual of the Trust Indenture Act of 1939 (1958) (Trust Indenture Act Manual) at 4. See also TransCanada Pipe Lines Limited, Commission File Nos. 212927, 221989 (January 17, 1957). |
20 | National Banking Act, 12 U.S.C. 92a(a). |
21 | New York Banking Law, § 100 (McKinneys 1990). The New York statute makes specific reference to indenture trusteeships (To act as trustee under any mortgage or bonds ...); such explicit references are not found in all state banking laws. |
22 | See, e.g., Loan and Trust Corporations Act (Ontario), 1987, Ont.Stat. c. 33 (OTCA). |
23 | CTCA § 15(1). |
24 | Id. § 71(b). Similarly, an Ontario corporation may not exercise trust powers unless it has been registered as a trust company. Section 30(1) of the OTCA requires the supervising authority to determine, distinguish, and register corporations required to be registered by the statute. Furthermore, under Section 33 of the OTCA, an application must be rejected if the corporation has not demonstrated that it has the capacity and power to engage in activities of a trust corporation. |
25 | National Banking Act, 12 U.S.C. 161, 12 CFR 4.11(a). |
26 | 12 CFR 4.11(b)(4). |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
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27 | National Banking Act, 12 U.S.C. 92a(c). |
28 | National Banking Act, 12 U.S.C. 92a(k); 12 CFR 9.17(b). Virtually all state-chartered banks that act as trustees under qualified indentures are also subject to federal supervision or examination for standards of safety and soundness through the Board of Governors of the Federal Reserve System, Federal Reserve Act, 12 U.S.C. 248(a), 325, 481, or the Federal Deposit Insurance Corporation, Id. 12 U.S.C. 1817. |
29 | CDICA, §§ 2730. |
30 | CTCA, § 92(1). |
31 | OSFI, Examination Framework for DepositTaking Institutions at 2. |
32 | CTCA § 92(2). |
33 | CTCA § 91.1(1). A similar regulatory structure is applicable to Ontario trust companies. For example, Ontario trust companies are subject to supervisory prescriptions including the requirement to file financial and other information with the Superintendent of Deposit Institutions. OTCA § 134. Ontario trust companies are subject to annual examinations by the superintendent. Id. § 184(1). The corporations annual return, which includes financial statements and an auditors report, is required to outline the financial condition and affairs of the corporation for the fiscal year. Id. § 135. Regulations under the Ontario statute prescribe forms, fees, retention of records by the trustee, financial statements and method of preparation, calculation of capital base, auditors reports, and qualifications for officers of the trustee. Id. § 223. |
34 | CDICA § 28(1). Provincial trust company regulators in the province of incorporation usually conduct the examination on behalf of CDIC pursuant to arrangements between CDIC and the responsible provincial agency. OSFI conducts some examinations on behalf of CDIC under similar arrangements. |
35 | Id. § 29(b) and (c). |
36 | Id. § 30(1). |
37 | Id. § 31. |
38 | Draft National Policy Statement No. 45Multijurisdictional Disclosure System at 24. |
39 | Id. |
40 | Under Section 98(1) of the Company Act (British Columbia), 1979, (British Columbia Company Act) at least one indenture trustee is required to be eligible to do business in British Columbia, or authorized to conduct trust business under the Financial Institutions Act. |
41 | 17 CFR 269.1. |
42 | 15 U.S.C. 77jjj(a)(2). |
43 | See CTCA § 15(2)(e). |
44 | OTCA, § 33(a). |
45 | Trust Companies and Savings Companies Act (Quebec), 1987, Rev.Stat. Chap. 95 § 227(4). |
46 | See CBCA § 83(1); OBCA § 48(1). |
47 | The Canadian securities regulators have advised that currently virtually all of the indenture trustee business is conducted by Central Guaranty Trust Company, a Canada corporation; Montreal Trust, through Montreal Trust Company of Canada, a Canada corporation, and Montreal Trust Company, a Quebec corporation; the National Trust Company, an Ontario corporation; and The Royal Trust Company, a Quebec corporation. Each of the provincially incorporated trust companies is a member of the CDIC. |
48 | See Section 302(a) [15 U.S.C. 77bbb(a)]; House Report No. 1016, 76th Cong., 1st Sess., (June 30, 1939) (H.Rep. 1016) A. General Statement. Scope of the bill. and B. Objectives and Method of Operation of the Bill. Method of operation of the bill. See also Securities and Exchange Commission, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees. Part VI: Trustees under Indentures (June 18, 1936). |
49 | See Section 302(b) [15 U.S.C. 77bbb(b)]. |
50 | H.Rep. 1016 B. Objectives and Method of Operation of the Bill. Correction of trust indenture. |
51 | Section 310(a) and (b) [15 U.S.C. 77jjj(a) and (b)]. |
52 | Section 311(a) [15 U.S.C. 77kkk(a)]. |
53 | Section 312(b) and (c) [15 U.S.C. 77lll(b) and (c)]. |
54 | Section 314(a) [15 U.S.C. 77nnn(a)]. |
55 | Section 313(a) and (b) [15 U.S.C. 77mmm(a) and (b)]. |
56 | Section 315 [15 U.S.C. 77ooo]. |
57 | Section 317(a) [15 U.S.C. 77qqq(a)]. See Senate Report at 3031. |
58 | 15 U.S.C. 77aaa 77rrr(a). |
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MULTIJURISDICTIONAL DISCLOSURE; ELIGIBILITY OF..., Release No. 244 (1991)
59 | Section 316(b) [15 U.S.C. 77ppp(b)]. |
60 | Section 322(b) [15 U.S.C. 77vvv(b)]. |
61 | CBCA § 82(1) (any deed, indenture or other instrument, including any supplement or amendment thereto, made by a corporation after its incorporation or continuance under this Act, under which the corporation issues debt obligations and in which a person is appointed as trustee for the holders of the debt obligations issued thereunder). See also OBCA § 46(1)(b). |
62 | See id. § 3(1) (making the CBCA applicable to every corporation incorporated thereunder and every body corporate continued as a corporation under the CBCA that has not been discontinued thereunder). Thus, those corporations incorporated by Act of Parliament or by provincial acts and who would become subject to the CBCA were not required to dissolve and form de novo under the CBCA, but instead would be deemed to have continued their corporate existence under the new statute. |
63 | Id. § 82(2). Compare OBCA § 46(2) (applicable if debt securities are offered by prospectus in Ontario). |
64 | See id. § 2(1). |
65 | Id. § 82(3). See infra note 93 for a discussion of the limited use of this authority. |
66 | Id. § 83(1). See also OBCA § 48(1). |
67 | Id. § 91 (trustee required to act honestly and in good faith with a view to the best interests of the holders and exercise the care, diligence and skill of a reasonably prudent trustee). See also OBCA § 47. |
68 | Id. § 85(1) (a holder of indenture securities may require the trustee to furnish information on holders of securities issued under the indenture). See also, OBCA § 52 (providing that any person may require the trustee to provide a list containing information similar to that required by CBCA § 85(1)). |
69 | 15 U.S.C. 77jjj 77rrr(a). |
70 | 15 U.S.C. 77bbb. |
71 | Canada Business Corporations Act (CCH) Canada Corp.L.Rep. ¶4910 at 13901391 (1989) (Canada Corp.L.Rep.). |
72 | Id. at 1390 (the federal act and the OBCA establish a basic code of behavior for trustees under trust indentures). The CBCA imposes statutory standards that are applicable irrespective of any contradictory term in a trust indenture, R.A. Kingston, Canada Corporation Manual at 6101; and the provisions with respect to the conduct of trustees applies to all current trust indentures, whether or not other provision has been made in this regard, see Canada Corp.L.Rep. ¶5085 at 1409. |
73 | Id. ¶4935 at 13971398. See also, Trust Indenture Act Manual at 1011. |
74 | Sections 310(b)(1) 310(b)(10) [15 U.S.C. 77jjj(b)(1) 77jjj(b)(10)]. |
75 | CBCA § 83(1). See also OBCA § 48(1). |
76 | See id. § 91. See also OBCA § 47(1). |
77 | Section 315(c) [15 U.S.C. 77ooo(c)]. |
78 | Section 315(d) [15 U.S.C. 77ooo(d)]. |
79 | CBCA § 93. See also, Canada Corp.L.Rep. ¶ 5085. |
80 | Section 315(b) [15 U.S.C. 77ooo(b)]; CBCA § 90. See also OBCA § 51(1). While the Trust Indenture Act does not authorize a trustee to withhold notice of payment defaults, the CBCA and the OBCA would authorize the trustee to withhold notice, if such trustee believes that to be in the best interests of the holders. In any event, such trustee would be required to notify the issuer or guarantor of its determination. |
81 | Section 312(b) [15 U.S.C. 77lll(b) ]; CBCA § 85(1). See OBCA § 52. See also, supra note 68. |
82 | 15 U.S.C. 77ppp(b). |
83 | Trust Indentures. Hearings on H.R. 2191 and H.R. 5220 before a Subcommittee of the Committee on Interstate and Foreign Commerce. House of Representatives, 76th Cong., 1st Sess. 28485 (1939). |
84 | Id. at 285. |
85 | OBCA §§ 46 52. |
86 | See Business Corporations Act of Alberta, Alta.Stat. c. B15 (1981) §§ 77 88; The Company Act of British Columbia, B.C.Rev.Stat. c. 59 (1979) ( British Columbia Company Act) §§ 96 107; The Corporations Act of Manitoba, Man.Rev.Stat. c. C225 (1987) §§ 77 88; The Corporations Act of Newfoundland, Nfld.Stat. c. 12 (1986) (Newfoundland Corporations Act) §§ 141 154; The Business Corporations Act of Saskatchewan, Sask.Rev.Stat. c. B10 (1978) §§ 77 88; and Business Corporations Act of the Yukon, Yuk.Rev.Stat. c. 15 (1986) §§ 82 93. |
Certain Canadian political subdivisions have no legislation regulating trust indentures (New Brunswick, Nova Scotia, Prince Edward Island, and Quebec). Most debt offerings made in those provinces by prospectus are also made by prospectus in Ontario, in which case the trust indenture requirements of the OBCA apply.
87 | OBCA § 46(4). This exemptive authority may be exercised to the extent the Ontario Securities Commission is satisfied that it would not be prejudicial to the public interest. |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
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MULTIJURISDICTIONAL DISCLOSURE; ELIGIBILITY OF..., Release No. 244 (1991)
88 | Section 97 of the British Columbia Company Act makes the provisions regulating trust indentures applicable, unless certain limited securities act exemptions are available, which has the effect of excluding coverage if no public distribution occurs. See CBCA § 82(2). Rather than imposing monetary fines and/or imprisonment for misuse of an indenture security holders list (compare CBCA § 85(6)), Section 99(4) of the BCCA provides that an indenture security holder may apply to the court for an order compelling the trustee to furnish the bondholders list. |
89 | Section 98(2) of the British Columbia Company Act prohibits appointment of a trustee if a material conflict of interest exists in its fiduciary role as trustee, which differs from the CBCA restriction of a conflict in such trustees role in any other capacity. Compare CBCA § 83(1). |
90 | The trustee is required by Section 105(a) of the British Columbia Company Act to act in good faith and in a commercially reasonable manner. Compare CBCA § 91(a) (trustee to act honestly and in good faith). It appears that to the extent the prudent trustee standard is modified by a requirement that such trustee act in a commercially reasonable manner, the British Columbia Company Act may not offer protection to investors comparable to that provided by the prudent man standard of Section 315(c) of the Trust Indenture Act [[15 U.S.C. 77ooo(c) ]. |
91 | See supra note 86. |
92 | OBCA § 46(4). This exemptive authority may be exercised to the extent the Ontario Securities Commission is satisfied that it would not be prejudicial to the public interest. |
93 | Section 82(3) of the CBCA grants to the Director discretionary authority to exempt a trust indenture from regulation under the CBCA, provided that such indenture is subject to the law of another province or foreign jurisdiction that is substantially equivalent to the CBCA. That authority has been used only in connection with offerings by issuers incorporated under the CBCA, when they were making offerings in the United States. In connection with such offerings, the Director has granted exemptions from the CBCA for Canadian issuers that complied with the Trust Indenture Act. In granting those exemptions, the Director determined that the Trust Indenture Act was substantially equivalent to the CBCA. |
Release No. 244 (S.E.C. Release No.), Release No. 2261, Release No. 6889, Release No.
39-2261, Release No. 33-6889, Release No. IS244, 48 S.E.C. Docket 646, 1991 WL 296481
End of Document |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
14 |
Exhibit 8(b)
CANADA
CONSOLIDATION | CODIFICATION | |
Trust and Loan Companies Act | Loi sur les sociétés de fiducie et de prêt | |
S.C. 1991, c. 45 | L.C. 1991, ch. 45 | |
Current to February 11, 2020 | À jour au 11 février 2020 | |
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 | |
Published by the Minister of Justice at the following address: | Publié par le ministre de la Justice à ladresse suivante : | |
http://laws-lois.justice.gc.ca | http://lois-laws.justice.gc.ca |
Current to February 11, 2020 | À jour au 11 février 2020 | |||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Current to February 11, 2020 | iii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | iv | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | v | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | vi | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | vii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | viii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | ix | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | x | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xi | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xiii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xiv | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xv | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xvi | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xvii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xviii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xix | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xx | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xxi | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xxii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xxiii | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 | Dernière modification le 17 juin 2019 |
|
| |
|
| |
Current to February 11, 2020 |
1 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 | Article 2 | |
|
Current to February 11, 2020 |
2 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 | Article 2 | |
Current to February 11, 2020 |
3 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
4 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
5 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
6 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
7 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
8 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
9 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Definitions |
Définitions | |
Sections 2-2.3 |
Articles 2-2.3 | |
Current to February 11, 2020 |
10 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Sections 2.3-3 |
Articles 2.3-3 | |
Current to February 11, 2020 |
11 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Sections 3-7 |
Articles 3-7 | |
Current to February 11, 2020 |
12 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
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Articles 7-9 | |
Current to February 11, 2020 |
13 | À jour au 11 février 2020 | ||
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Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Sections 9-10 |
Articles 9-10 | |
Current to February 11, 2020 |
14 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Section 10 |
Article 10 | |
Current to February 11, 2020 |
15 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Section 10 |
Article 10 | |
Current to February 11, 2020 |
16 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Sections 10-11.1 |
Articles 10-11.1 | |
Current to February 11, 2020 |
17 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Interprétation | |
Sections 11.1-13 |
Articles 11.1-13 | |
Current to February 11, 2020 |
18 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART II Status and Powers |
PARTIE II Pouvoirs | |
Sections 14-18 |
Articles 14-18 | |
|
| |
Current to February 11, 2020 |
19 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART II Status and Powers |
PARTIE II Pouvoirs | |
Sections 19-20 |
Articles 19-20 | |
|
| |
Current to February 11, 2020 |
20 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART II Status and Powers |
PARTIE II Pouvoirs | |
Sections 20-23 |
Articles 20-23 | |
|
| |
Current to February 11, 2020 |
21 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Formalities of Incorporation |
Formalités constitutives | |
Sections 23-25 |
Articles 23-25 | |
Current to February 11, 2020 |
22 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Formalities of Incorporation |
Formalités constitutives | |
Sections 25-27 |
Articles 25-27 | |
Current to February 11, 2020 |
23 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Formalities of Incorporation |
Formalités constitutives | |
Sections 27-32 |
Articles 27-32 | |
Current to February 11, 2020 |
24 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Continuance |
Prorogation | |
Sections 32-36 |
Articles 32-36 | |
Current to February 11, 2020 |
25 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Continuance |
Prorogation | |
Sections 36-37 |
Articles 36-37 | |
Current to February 11, 2020 |
26 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Continuance |
Prorogation | |
Section 37 |
Article 37 | |
Current to February 11, 2020 |
27 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Continuance |
Prorogation | |
Sections 37-38 |
Articles 37-38 |
Current to February 11, 2020 |
28 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Discontinuance |
Cessation | |
Sections 38-41 |
Articles 38-41 |
Current to February 11, 2020 |
29 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Corporate Name |
Dénomination sociale | |
Sections 41-44 |
Articles 41-44 |
Current to February 11, 2020 |
30 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Corporate Name |
Dénomination sociale | |
Sections 44-47 |
Articles 44-47 |
Current to February 11, 2020 |
31 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Corporate Name |
Dénomination sociale | |
Sections 47-48.1 | Articles 47-48.1 |
Current to February 11, 2020 |
32 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART III Incorporation, Continuance and Discontinuance |
PARTIE III Constitution, prorogation et cessation | |
Corporate Name |
Dénomination sociale | |
Sections 48.1-49 |
Articles 48.1-49 |
Current to February 11, 2020 |
33 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Organization Meetings |
Réunions | |
Sections 49-51 |
Articles 49-51 |
Current to February 11, 2020 |
34 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Commencement and Carrying on of Business |
Fonctionnement initial | |
Section 52 |
Article 52 |
Current to February 11, 2020 |
35 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Commencement and Carrying on of Business |
Fonctionnement initial | |
Sections 53-56 |
Articles 53-56 |
Current to February 11, 2020 |
36 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Commencement and Carrying on of Business |
Fonctionnement initial | |
Sections 56-58 |
Articles 56-58 |
Current to February 11, 2020 |
37 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Commencement and Carrying on of Business |
Fonctionnement initial | |
Sections 58-61 |
Articles 58-61 |
Current to February 11, 2020 |
38 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IV Organization and Commencement |
PARTIE IV Organisation et fonctionnement | |
Commencement and Carrying on of Business |
Fonctionnement initial | |
Sections 61-62 |
Articles 61-62 |
Current to February 11, 2020 |
39 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 62-63 |
Articles 62-63 |
Current to February 11, 2020 |
40 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 63-65 |
Articles 63-65 |
Current to February 11, 2020 |
41 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 65-68 |
Articles 65-68 |
Current to February 11, 2020 |
42 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 68-69 |
Articles 68-69 |
Current to February 11, 2020 |
43 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Section 69 |
Article 69 |
Current to February 11, 2020 |
44 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 69-71 |
Articles 69-71 |
Current to February 11, 2020 |
45 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 71-73 |
Articles 71-73 |
Current to February 11, 2020 |
46 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 73-75 |
Articles 73-75 |
Current to February 11, 2020 |
47 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 75-77 |
Articles 75-77 |
Current to February 11, 2020 |
48 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 77-78 |
Articles 77-78 |
Current to February 11, 2020 |
49 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 78-80 |
Articles 78-80 |
Current to February 11, 2020 |
50 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 80-81 |
Articles 80-81 |
Current to February 11, 2020 |
51 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Share Capital |
Capital-actions | |
Sections 81-83 |
Articles 81-83 |
Current to February 11, 2020 |
52 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Subordinated Indebtedness |
Titres secondaires | |
Sections 83-84 |
Articles 83-84 |
the subordinated indebtedness otherwise than as subordinated indebtedness.
Current to February 11, 2020 |
53 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 84-86 |
Articles 84-86 |
Current to February 11, 2020 |
54 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 86-89 |
Articles 86-89 |
Current to February 11, 2020 |
55 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 89-91 |
Articles 89-91 |
Current to February 11, 2020 |
56 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 91-94 |
Articles 91-94 |
Current to February 11, 2020 |
57 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 94-96 |
Articles 94-96 |
Current to February 11, 2020 |
58 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 96-99 |
Articles 96-99 | |
Current to February 11, 2020 |
59 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 99-100 |
Articles 99-100 | |
Current to February 11, 2020 |
60 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 100-102 |
Articles 100-102 | |
Current to February 11, 2020 |
61 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 103-104 |
Articles 103-104 | |
Current to February 11, 2020 |
62 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 104-107 |
Articles 104-107 | |
Current to February 11, 2020 |
63 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 107-110 |
Articles 107-110 | |
Current to February 11, 2020 |
64 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 110-111 |
Articles 110-111 | |
Current to February 11, 2020 |
65 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 112-114 |
Articles 112-114 | |
Current to February 11, 2020 |
66 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 114-119 |
Articles 114-119 | |
Current to February 11, 2020 |
67 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 120-122 |
Articles 120-122 | |
Current to February 11, 2020 |
68 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 122-124 |
Articles 122-124 | |
Current to February 11, 2020 |
69 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Section 124 |
Article 124 | |
Current to February 11, 2020 |
70 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 124-125 |
Articles 124-125 | |
Current to February 11, 2020 |
71 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 125-129 |
Articles 125-129 | |
Current to February 11, 2020 |
72 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 129-130 |
Articles 129-130 | |
Current to February 11, 2020 |
73 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 130-132 |
Articles 130-132 |
Current to February 11, 2020 |
74 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 132-135 |
Articles 132-135 | |
Current to February 11, 2020 |
75 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 135-136 |
Articles 135-136 |
Current to February 11, 2020 |
76 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART V Capital Structure |
PARTIE V Structure du capital | |
Security Certificates and Transfers |
Certificats de valeurs mobilières et transferts | |
Sections 137-139 |
Articles 137-139 | |
Current to February 11, 2020 |
77 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Section 140 |
Article 140 | |
Current to February 11, 2020 |
78 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 140-141 |
Articles 140-141 | |
Current to February 11, 2020 |
79 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 141-144 |
Articles 141-144 | |
Current to February 11, 2020 |
80 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 144-146 |
Articles 144-146 |
Current to February 11, 2020 |
81 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Section 146 | Article 146 |
Current to February 11, 2020 |
82 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 146-147 | Articles 146-147 |
Current to February 11, 2020 |
83 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 147-148 | Articles 147-148 |
Current to February 11, 2020 |
84 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 148-151 | Articles 148-151 |
Current to February 11, 2020 |
85 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 151-154 | Articles 151-154 |
Current to February 11, 2020 |
86 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 154-156 | Articles 154-156 |
Current to February 11, 2020 |
87 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 156-157 | Articles 156-157 |
Current to February 11, 2020 |
88 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 157-159 | Articles 157-159 |
Current to February 11, 2020 |
89 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Shareholders |
Actionnaires | |
Sections 159-160.01 | Articles 159-160.01 |
Current to February 11, 2020 |
90 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Sections 160.01-160.02 | Articles 160.01-160.02 |
Current to February 11, 2020 |
91 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Sections 160.02-160.03 | Articles 160.02-160.03 |
Current to February 11, 2020 |
92 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Sections 160.03-160.05 | Articles 160.03-160.05 |
Current to February 11, 2020 |
93 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Sections 160.05-160.06 | Articles 160.05-160.06 |
Current to February 11, 2020 |
94 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Section 160.07 | Article 160.07 |
Current to February 11, 2020 |
95 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Proxies |
Procurations | |
Sections 160.07-161 | Articles 160.07-161 |
Current to February 11, 2020 |
96 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Duties |
Obligations | |
Sections 161-162 | Articles 161-162 |
Current to February 11, 2020 |
97 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Duties |
Obligations | |
Sections 162-164 | Articles 162-164 |
Current to February 11, 2020 |
98 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Qualification and Number Directors |
Administrateurs Nombre et qualités requises | |
Sections 164-166.1 | Articles 164-166.1 |
Current to February 11, 2020 |
99 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Qualification and Number Directors |
Administrateurs Nombre et qualités requises | |
Sections 166.1-169 | Articles 166.1-169 |
Current to February 11, 2020 |
100 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Election and Tenure Directors |
Administrateurs Élections et fonctions | |
Sections 169-170 | Articles 169-170 |
Current to February 11, 2020 |
101 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Election and Tenure Directors |
Administrateurs Élections et fonctions | |
Sections 170-172 | Articles 170-172 |
Current to February 11, 2020 |
102 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Election and Tenure Directors |
Administrateurs Élections et fonctions | |
Section 172 | Article 172 |
Current to February 11, 2020 |
103 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Election and Tenure Directors |
Administrateurs Élections et fonctions | |
Sections 172-174 | Articles 172-174 |
Current to February 11, 2020 |
104 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Incomplete Elections and Director Vacancies |
Élections incomplètes et vacances dadministrateurs | |
Sections 174-175 | Articles 174-175 |
Current to February 11, 2020 |
105 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Incomplete Elections and Director Vacancies |
Élections incomplètes et vacances dadministrateurs | |
Sections 176-178 | Articles 176-178 |
Current to February 11, 2020 |
106 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Incomplete Elections and Director Vacancies |
Élections incomplètes et vacances dadministrateurs | |
Sections 178-181 | Articles 178-181 |
Current to February 11, 2020 |
107 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Incomplete Elections and Director Vacancies |
Élections incomplètes et vacances dadministrateurs | |
Sections 181-183 | Articles 181-183 |
Current to February 11, 2020 |
108 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Incomplete Elections and Director Vacancies |
Élections incomplètes et vacances dadministrateurs | |
Sections 183.1-185 | Articles 183.1-185 |
Current to February 11, 2020 |
109 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Meetings of the Board |
Réunions du conseil dadministration | |
Sections 185-187 | Articles 185-187 |
Current to February 11, 2020 |
110 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Meetings of the Board |
Réunions du conseil dadministration | |
Sections 187-188.1 | Articles 187-188.1 |
Current to February 11, 2020 |
111 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Meetings of the Board |
Réunions du conseil dadministration | |
Sections 188.1-189 | Articles 188.1-189 |
Current to February 11, 2020 |
112 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Meetings of the Board |
Réunions du conseil dadministration | |
Sections 189-192 | Articles 189-192 |
Current to February 11, 2020 |
113 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
By-laws |
Règlements administratifs | |
Sections 192-195 | Articles 192-195 |
Current to February 11, 2020 |
114 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
By-laws |
Règlements administratifs | |
Sections 195-198 | Articles 195-198 |
Current to February 11, 2020 |
115 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Committees of the Board |
Comités du conseil dadministration | |
Sections 198-199 | Articles 198-199 |
Current to February 11, 2020 |
116 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Committees of the Board |
Comités du conseil dadministration | |
Section 199 | Article 199 |
Current to February 11, 2020 |
117 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Directors and Officers Authority |
Mandat des administrateurs et dirigeants | |
Sections 200-202 | Articles 200-202 |
Current to February 11, 2020 |
118 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Directors and Officers Authority |
Mandat des administrateurs et dirigeants | |
Sections 202-205 | Articles 202-205 |
Current to February 11, 2020 |
119 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Directors and Officers Authority |
Mandat des administrateurs et dirigeants | |
Sections 205-207 | Articles 205-207 |
Current to February 11, 2020 |
120 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Conflicts of Interest |
Conflits dintérêts | |
Sections 207-208 | Articles 207-208 |
Current to February 11, 2020 |
121 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Conflicts of Interest |
Conflits dintérêts | |
Sections 208-210 | Articles 208-210 |
Current to February 11, 2020 |
122 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Conflicts of Interest |
Conflits dintérêts | |
Sections 210-212 | Articles 210-212 |
Current to February 11, 2020 |
123 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Liability, Exculpation and Indemnification |
Responsabilité, exonération et indemnisation | |
Sections 212-213 | Articles 212-213 |
Current to February 11, 2020 |
124 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Liability, Exculpation and Indemnification |
Responsabilité, exonération et indemnisation | |
Sections 214-215 | Articles 214-215 |
Current to February 11, 2020 |
125 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Liability, Exculpation and Indemnification |
Responsabilité, exonération et indemnisation | |
Sections 215-217 | Articles 215-217 |
Current to February 11, 2020 |
126 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Liability, Exculpation and Indemnification |
Responsabilité, exonération et indemnisation | |
Section 217 | Article 217 |
Current to February 11, 2020 |
127 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Directors and Officers |
Administrateurs et dirigeants | |
Liability, Exculpation and Indemnification |
Responsabilité, exonération et indemnisation | |
Sections 218-221 | Articles 218-221 |
Current to February 11, 2020 |
128 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amendments |
Modifications | |
Sections 221-222 |
Articles 221-222 |
Current to February 11, 2020 |
129 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amendments |
Modifications | |
Sections 222-223 |
Articles 222-223 |
Current to February 11, 2020 |
130 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amendments |
Modifications | |
Sections 223-226 | Articles 223-226 |
Current to February 11, 2020 |
131 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amendments |
Modifications | |
Sections 226-229 | Articles 226-229 |
Current to February 11, 2020 |
132 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 229-231 | Articles 229-231 |
Current to February 11, 2020 |
133 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 231-232 | Articles 231-232 |
Current to February 11, 2020 |
134 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 232-233 | Articles 232-233 |
Current to February 11, 2020 |
135 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 233-234 | Articles 233-234 |
Current to February 11, 2020 |
136 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 234-235 | Articles 234-235 |
Current to February 11, 2020 |
137 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Sections 235-236 | Articles 235-236 |
Current to February 11, 2020 |
138 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Amalgamation |
Fusion | |
Section 236 | Article 236 |
Current to February 11, 2020 |
139 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Transfer of Business |
Ventes déléments dactif | |
Sections 237-239 | Articles 237-239 |
Current to February 11, 2020 |
140 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Transfer of Business |
Ventes déléments dactif | |
Sections 239-241 | Articles 239-241 |
Current to February 11, 2020 |
141 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Fundamental Changes |
Modifications de structure | |
Transfer of Business |
Ventes déléments dactif | |
Sections 241-243 | Articles 241-243 |
Current to February 11, 2020 |
142 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Sections 243-244 | Articles 243-244 |
Current to February 11, 2020 |
143 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Sections 244-245 | Articles 244-245 |
Current to February 11, 2020 |
144 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Section 245 | Article 245 |
Current to February 11, 2020 |
145 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Sections 245-248 | Articles 245-248 |
Current to February 11, 2020 |
146 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Sections 249-251 | Articles 249-251 |
Current to February 11, 2020 |
147 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Head Office and Corporate Records |
Siège et livres | |
Sections 251-253 | Articles 251-253 |
Current to February 11, 2020 |
148 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Securities Registers |
Registres des valeurs mobilières | |
Section 253 | Article 253 |
Current to February 11, 2020 |
149 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Securities Registers |
Registres des valeurs mobilières | |
Sections 253-258 | Articles 253-258 |
Current to February 11, 2020 |
150 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Securities Registers |
Registres des valeurs mobilières | |
Sections 259-270 | Articles 259-270 |
Current to February 11, 2020 |
151 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Insiders |
Initiés | |
Sections 270-271 | Articles 270-271 |
Current to February 11, 2020 |
152 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Insider Reporting |
Rapport dinitié | |
Sections 272-275 | Articles 272-275 |
Current to February 11, 2020 |
153 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Insider Trading |
Opérations dinitiés | |
Sections 275-276 | Articles 275-276 |
Current to February 11, 2020 |
154 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Civil Remedies |
Recours | |
Section 276 |
Article 276 |
Current to February 11, 2020 |
155 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Civil Remedies |
Recours | |
Sections 276-276.1 |
Articles 276-276.1 |
Current to February 11, 2020 |
156 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Civil Remedies |
Recours | |
Sections 276.1-277 |
Articles 276.1-277 |
Current to February 11, 2020 |
157 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Civil Remedies |
Recours | |
Sections 277-279 |
Articles 277-279 |
Current to February 11, 2020 |
158 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Going-private Transactions and Squeeze-out Transactions |
Transactions de fermeture et transactions déviction | |
Sections 280-282 |
Articles 280-282 |
Current to February 11, 2020 |
159 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Going-private Transactions and Squeeze-out Transactions |
Transactions de fermeture et transactions déviction | |
Section 282 |
Article 282 |
Current to February 11, 2020 |
160 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Going-private Transactions and Squeeze-out Transactions |
Transactions de fermeture et transactions déviction | |
Section 282 |
Article 282 |
Current to February 11, 2020 |
161 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Going-private Transactions and Squeeze-out Transactions |
Transactions de fermeture et transactions déviction | |
Section 282 |
Article 282 |
Current to February 11, 2020 |
162 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Going-private Transactions and Squeeze-out Transactions |
Transactions de fermeture et transactions déviction | |
Sections 282-287 |
Articles 282-287 |
Current to February 11, 2020 |
163 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Section 288 |
Article 288 |
Current to February 11, 2020 |
164 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 288-290 | Articles 288-290 |
Current to February 11, 2020 |
165 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 290-291 | Articles 290-291 |
Current to February 11, 2020 |
166 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 291-292.1 | Articles 291-292.1 |
Current to February 11, 2020 |
167 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 293-294 | Articles 293-294 |
Current to February 11, 2020 |
168 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 294-296 | Articles 294-296 |
Current to February 11, 2020 |
169 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Compulsory Acquisitions |
Offres publiques dachat | |
Sections 296-298.1 | Articles 296-298.1 |
Current to February 11, 2020 |
170 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Trust Indentures |
Acte de fiducie | |
Sections 299-302 | Articles 299-302 |
Current to February 11, 2020 |
171 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Trust Indentures |
Acte de fiducie | |
Sections 302-306 | Articles 302-306 |
Current to February 11, 2020 |
172 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Trust Indentures |
Acte de fiducie | |
Sections 306-307 | Articles 306-307 |
Current to February 11, 2020 |
173 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Trust Indentures |
Acte de fiducie | |
Sections 307-308 | Articles 307-308 |
Current to February 11, 2020 |
174 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Corporate Records |
Livres et registres | |
Trust Indentures |
Acte de fiducie | |
Sections 308-312 | Articles 308-312 |
Current to February 11, 2020 |
175 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Annual Financial Statement |
Rapport financier annuel | |
Sections 312-313 | Articles 312-313 |
Current to February 11, 2020 |
176 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Annual Financial Statement |
Rapport financier annuel | |
Sections 313-314 | Articles 313-314 |
Current to February 11, 2020 |
177 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Annual Financial Statement |
Rapport financier annuel | |
Sections 314-316 | Articles 314-316 |
Current to February 11, 2020 |
178 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Annual Financial Statement |
Rapport financier annuel | |
Sections 316-319 | Articles 316-319 |
Current to February 11, 2020 |
179 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 319-320 | Articles 319-320 |
Current to February 11, 2020 |
180 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 320-321 | Articles 320-321 |
Current to February 11, 2020 |
181 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 321-324 | Articles 321-324 |
Current to February 11, 2020 |
182 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 324-326 |
Articles 324-326 |
Current to February 11, 2020 |
183 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 326-328 | Articles 326-328 |
Current to February 11, 2020 |
184 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 328-330 | Articles 328-330 |
Current to February 11, 2020 |
185 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 330-331 |
Articles 330-331 |
Current to February 11, 2020 |
186 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 331-333 |
Articles 331-333 |
Current to February 11, 2020 |
187 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 333-335 |
Articles 333-335 |
Current to February 11, 2020 |
188 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Auditor |
Vérificateur | |
Sections 336-339 |
Articles 336-339 |
Current to February 11, 2020 |
189 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Remedial Actions |
Recours judiciaires | |
Sections 339-340 |
Articles 339-340 |
Current to February 11, 2020 |
190 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Remedial Actions |
Recours judiciaires | |
Sections 340-343 |
Articles 340-343 |
Current to February 11, 2020 |
191 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Remedial Actions |
Recours judiciaires | |
Sections 343-346 |
Articles 343-346 |
Current to February 11, 2020 |
192 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Liquidation and Dissolution |
Liquidation et dissolution | |
Sections 346-349 |
Articles 346-349 |
Current to February 11, 2020 |
193 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Simple Liquidation |
Liquidation simple | |
Section 350 |
Article 350 |
Current to February 11, 2020 |
194 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Simple Liquidation |
Liquidation simple | |
Sections 351-354 |
Articles 351-354 |
Current to February 11, 2020 |
195 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Section 354 |
Article 354 |
Current to February 11, 2020 |
196 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Sections 354-355 |
Articles 354-355 |
Current to February 11, 2020 |
197 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Sections 356-358 |
Articles 356-358 |
Current to February 11, 2020 |
198 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Section 358 |
Article 358 |
Current to February 11, 2020 |
199 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Sections 358-362 |
Articles 358-362 |
Current to February 11, 2020 |
200 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Sections 362-364 |
Articles 362-364 |
Current to February 11, 2020 |
201 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
Court-supervised Liquidation |
Surveillance judiciaire | |
Sections 364-366 |
Articles 364-366 |
Current to February 11, 2020 |
202 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
General |
Dispositions générales | |
Sections 367-368 |
Articles 367-368 |
Current to February 11, 2020 |
203 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
General |
Dispositions générales | |
Sections 368-371 |
Articles 368-371 |
Current to February 11, 2020 |
204 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
General |
Dispositions générales | |
Sections 371-374 |
Articles 371-374 |
Current to February 11, 2020 |
205 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
Financial Statements and Auditors |
États financiers et vérificateurs | |
General |
Dispositions générales | |
Sections 374-374.1 |
Articles 374-374.1 |
Current to February 11, 2020 |
206 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION I Interpretation |
SECTION I Définition | |
Sections 374.1-374.2 |
Articles 374.1-374.2 | |
Current to February 11, 2020 |
207 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION I Interpretation |
SECTION I Définition | |
Sections 374.2-375 |
Articles 374.2-375 | |
Current to February 11, 2020 |
208 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 375-376.1 |
Articles 375-376.1 | |
Current to February 11, 2020 |
209 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Section 377 |
Article 377 |
Current to February 11, 2020 |
210 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Section 377 |
Article 377 |
Current to February 11, 2020 |
211 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 377-378 |
Articles 377-378 |
Current to February 11, 2020 |
212 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 378-380 |
Articles 378-380 |
Current to February 11, 2020 |
213 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 380-382 |
Articles 380-382 |
Current to February 11, 2020 |
214 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 382.1-383 |
Articles 382.1-383 |
Current to February 11, 2020 |
215 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété société | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Sections 383-386 | Articles 383-386 |
Current to February 11, 2020 |
216 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 386-388 |
Articles 386-388 |
with any term or condition imposed under section 389, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights |
|
larticle 389, il est interdit à quiconque, et notamment à une entité contrôlée par lauteur du manquement, dexercer, personnellement ou par lintermédiaire dun fondé de pouvoir, les droits de vote : | ||
(a) that are attached to shares of the company beneficially owned by the particular person or any entity controlled by the particular person; or |
a) soit qui sont attachés aux actions de la société détenues à titre de véritable propriétaire par lauteur du manquement ou par lentité quil contrôle; | |||
(b) that are subject to an agreement entered into by the particular person, or any entity controlled by the particular person, pertaining to the exercise of the voting rights. |
b) soit dont lexercice est régi aux termes dune entente conclue par lauteur du manquement ou par lentité quil contrôle. | |||
Subsection (1) ceases to apply |
Cessation dapplication du paragraphe (1) | |||
(2) Subsection (1) ceases to apply in respect of a person when, as the case may be, |
(2) Le paragraphe (1) cesse de sappliquer si, selon le cas : | |||
(a) the shares to which the contravention relates have been disposed of; |
a) il y a eu aliénation des actions ayant donné lieu à la contravention; | |||
(b) the person ceases to control the company within the meaning of paragraph 3(1)(d); |
b) lauteur du manquement cesse de contrôler la société, au sens de lalinéa 3(1)d); | |||
(c) if the person failed to comply with an undertaking referred to in subsection 384(2), the company complies with section 379; or |
c) dans le cas où le manquement concerne lengagement visé au paragraphe 384(2), la société se conforme à larticle 379; | |||
(d) if the person failed to comply with a term or condition imposed under section 389, the person complies with the term or condition. |
d) dans le cas où le manquement concerne les conditions ou modalités imposées dans le cadre de larticle 389, la personne se conforme à celles-ci. | |||
1991, c. 45, s. 386; 1997, c. 15, s. 374; 2001, c. 9, s. 524. | 1991, ch. 45, art. 386; 1997, ch. 15, art. 374; 2001, ch. 9, art. 524. | |||
Approval Process | Procédure dagrément | |||
Application for approval |
Demande dagrément | |||
387 (1) An application for an approval of the Minister required under this Part must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require. |
387 (1) Lagrément requis aux termes de la présente partie fait lobjet dune demande au ministre à déposer au bureau du surintendant, accompagnée des renseignements et documents que ce dernier peut exiger. | |||
Applicant |
Demandeur | |||
(2) If, with respect to any particular transaction, this Part applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons. |
(2) Lune quelconque des personnes auxquelles sapplique, à légard dune opération particulière, la présente partie peut présenter au ministre la demande dagrément au nom de toutes les personnes. | |||
1991, c. 45, s. 387; 2001, c. 9, s. 525. | 1991, ch. 45, art. 387; 2001, ch. 9, art. 525. | |||
Matters for consideration |
Facteurs à considérer | |||
388 (1) Subject to subsection (2), if an application for an approval under section 375 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including |
388 (1) Pour décider sil approuve ou non une opération nécessitant lagrément aux termes de larticle 375, le ministre, sous réserve du paragraphe (2), prend en considération tous les facteurs quil estime indiqués, notamment : |
Current to February 11, 2020 |
217 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 388-389 | Articles 388-389 |
(a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company; |
|
a) la nature et limportance des moyens financiers du ou des demandeurs pour le soutien financier continu de la société; | ||
(b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the company; |
b) le sérieux et la faisabilité de leurs plans pour la conduite et lexpansion futures de lactivité de la société; | |||
(c) the business record and experience of the applicant or applicants; |
c) leur expérience et leur dossier professionnel; | |||
(d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; |
d) leur moralité et leur intégrité et, sagissant de personnes morales, leur réputation pour ce qui est de leur exploitation selon des normes élevées de moralité et dintégrité; | |||
(e) whether the company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; |
e) la compétence et lexpérience des personnes devant exploiter la société, afin de déterminer si elles sont aptes à participer à lexploitation dune institution financière et à exploiter la société de manière responsable; | |||
(f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the company on the conduct of those businesses and operations; and |
f) les conséquences de toute intégration des activités et des entreprises du ou des demandeurs et de celles de la société sur la conduite de ces activités et entreprises; | |||
(g) the best interests of the financial system in Canada. |
g) lintérêt du système financier canadien. | |||
National treatment |
Traitement national | |||
(2) Where a transaction in respect of which subsection 375(1) or (2) applies would cause a company to become a subsidiary of a foreign institution that is engaged in the trust and loan business, that does not have any other company as its subsidiary and that is a non-WTO Member foreign institution, the Minister shall not approve the transaction unless the Minister is satisfied that treatment as favourable for companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign institution principally carries on business, either directly or through a subsidiary. |
(2) Lorsque lopération a pour effet de faire dune société une filiale dune institution étrangère se livrant à des activités de fiducie ou de prêt dont aucune autre société nest la filiale et qui est une institution étrangère dun non-membre de lOMC, le ministre ne peut lapprouver que sil est convaincu que les sociétés régies par la présente loi bénéficient ou bénéficieront dun traitement aussi favorable sur le territoire où linstitution étrangère exerce principalement son activité, directement ou par lintermédiaire dune filiale. | |||
Part XII of the Bank Act |
Partie XII de la Loi sur les banques | |||
(3) Nothing in subsection (1) or (2) affects the operation of Part XII of the Bank Act. |
(3) Les paragraphes (1) et (2) ne portent pas atteinte à lapplication de la partie XII de la Loi sur les banques. | |||
1991, c. 45, s. 388; 1999, c. 28, s. 140; 2001, c. 9, s. 526. | 1991, ch. 45, art. 388; 1999, ch. 28, art. 140; 2001, ch. 9, art. 526. | |||
Terms and conditions |
Conditions dagrément | |||
389 The Minister may impose any terms and conditions in respect of an approval given under this Part that the Minister considers necessary to ensure compliance with any provision of this Act. |
389 Le ministre peut assortir lagrément des conditions ou modalités quil juge nécessaires pour assurer lobservation de la présente loi. | |||
1991, c. 45, s. 389; 2001, c. 9, s. 527. | 1991, ch. 45, art. 389; 2001, ch. 9, art. 527. |
Current to February 11, 2020 |
218 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 390-391 |
Articles 390-391 |
Certifying receipt of application |
|
Accusé de réception | ||
390 (1) If, in the opinion of the Superintendent, an application filed under this Part contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent. |
390 (1) Lorsque, à son avis, la demande faite dans le cadre de la présente partie est complète, le surintendant la transmet sans délai au ministre et adresse au demandeur un accusé de réception précisant la date de celle-ci. | |||
Incomplete application |
Demande incomplètett | |||
(2) If, in the opinion of the Superintendent, an application filed under this Part is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application. |
(2) Dans le cas contraire, le surintendant envoie au demandeur un avis précisant les renseignements manquants à lui communiquer. | |||
1991, c. 45, s. 390; 2001, c. 9, s. 528. | 1991, ch. 45, art. 390; 2001, ch. 9, art. 528. | |||
Notice of decision to applicant |
Avis au demandeur | |||
391 (1) Subject to subsections (2) and (3) and 392(1), the Minister shall, within a period of thirty days after the certified date referred to in subsection 390(1), send to the applicant |
391 (1) Sous réserve des paragraphes (2), (3) et 392(1), le ministre envoie au demandeur, dans les trente jours suivant la date de réception : | |||
(a) a notice approving the transaction to which the application relates; or |
a) soit un avis dagrément de lopération; | |||
(b) where the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter. |
b) soit, sil nest pas convaincu que lopération devrait être agréée, un avis de refus informant le demandeur de son droit de lui présenter des observations. | |||
Notice of decision |
Avis au demandeur | |||
(2) Subject to subsections (4) and 392(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 390(1) in the following cases: |
(2) Sous réserve des paragraphes (4) et 392(2), lavis est à envoyer dans les quarante-cinq jours suivant la date prévue au paragraphe 390(1) dans les cas suivants : | |||
(a) the application involves the acquisition of control of a company; |
a) la demande dagrément implique lacquisition du contrôle dune société; | |||
(b) the application is made by an eligible agent or an entity controlled by an eligible agent; or |
b) la demande dagrément est faite par le mandataire admissible ou une entité quil contrôle; | |||
(c) an application is made for the approval referred to in subsection 396(3). |
c) une demande est présentée pour lagrément visé au paragraphe 396(3). | |||
Extension of period for notice |
Prorogation | |||
(3) Where the Minister is unable to complete the consideration of an application within the period referred to in subsection (1), the Minister shall,
(a) within that period, send a notice to that effect to the applicant; and |
(3) Dans le cas où lexamen de la demande ne peut se faire dans le délai fixé au paragraphe (1), le ministre envoie, avant lexpiration de celui-ci, un avis informant en conséquence le demandeur, ainsi que, dans les trente jours qui suivent ou dans le délai supérieur convenu avec le demandeur, lavis prévu aux alinéas (1)a) ou b). |
Current to February 11, 2020 |
219 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 391-393 |
Articles 391-393 |
(b) within a further period of thirty days after the date of the sending of the notice referred to in paragraph (a) or within such other further period as may be agreed on by the applicant and the Minister, send a notice referred to in paragraph (1)(a) or (b) to the applicant. |
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Idem |
Idem | |||
(4) Where the Minister considers it appropriate to do so, the Minister may extend the period referred to in subsection (2) for one or more periods of forty-five days. |
(4) Le ministre, sil lestime indiqué, peut proroger le délai visé au paragraphe (2) dune ou plusieurs périodes de quarante-cinq jours. | |||
1991, c. 45, s. 391; 2012, c. 31, s. 103. | 1991, ch. 45, art. 391; 2012, ch. 31, art. 103. | |||
Reasonable opportunity to make representations |
Délai pour la présentation dobservations | |||
392 (1) Where, after receipt of the notice referred to in paragraph 391(1)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of thirty days after the date of the notice, or within such further period as may be agreed on by the applicant and the Minister, to make representations in respect of the matter. |
392 (1) Dans les trente jours qui suivent la date de lavis prévu à lalinéa 391(1)b) ou dans le délai supérieur convenu entre eux, le ministre donne la possibilité de présenter des observations au demandeur qui la informé de son désir en ce sens. | |||
Reasonable opportunity to make representations |
Idem | |||
(2) If, after receipt of the notice sent in accordance with subsection 391(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter. |
(2) Dans les quarante-cinq jours qui suivent la date de lavis prévu au paragraphe 391(2) ou dans le délai supérieur convenu entre eux, le ministre donne la possibilité de présenter des observations au demandeur qui la informé de son désir en ce sens. | |||
1991, c. 45, s. 392; 2012, c. 31, s. 104(E). | 1991, ch. 45, art. 392; 2012, ch. 31, art. 104(A). | |||
Notice of decision |
Avis de la décision | |||
393 (1) Within a period of thirty days after the expiration of the period for making representations referred to in subsection 392(1), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the share transaction to which the application relates. |
393 (1) Dans les trente jours suivant lexpiration du délai prévu au paragraphe 392(1), le ministre envoie au demandeur un avis lui faisant savoir que, à la lumière des observations présentées et eu égard aux facteurs à prendre en considération, il approuve ou non lopération faisant lobjet de la demande. | |||
Idem |
Idem | |||
(2) Within a period of forty-five days after the expiration of the period for making representations referred to in subsection 392(2), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the share transaction to which the application relates. |
(2) Dans les quarante-cinq jours suivant lexpiration du délai prévu au paragraphe 392(2), le ministre envoie au demandeur un avis lui faisant savoir que, à la lumière des observations présentées et eu égard aux facteurs à prendre en considération, il approuve ou non lopération faisant lobjet de la demande. |
Current to February 11, 2020 |
220 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 394-396 |
Articles 394-396 |
Deemed approval |
|
Présomption | ||
394 Where the Minister does not send a notice under subsection 391(1) or (3) or 393(1) within the period provided for in those subsections, the Minister is deemed to have approved the share transaction to which the application relates. |
394 Le défaut, dans le délai imparti, des avis prévus aux paragraphes 391(1) ou (3) ou 393(1) vaut agrément de lopération visée par la demande. | |||
394.1 and 395 [Repealed, 1994, c. 47, s. 207] |
394.1 et 395 [Abrogés, 1994, ch. 47, art. 207] | |||
Constraining registration: Crown and foreign governments |
Restriction : Couronne et États étrangers | |||
396 (1) No company shall record in its securities register a transfer or issue of any share of the company to |
396 (1) Il est interdit à la société dinscrire dans son registre des valeurs mobilières le transfert ou lémission dactions aux entités suivantes: | |||
(a) Her Majesty in right of Canada or of a province or any agent or agency of Her Majesty in either of those rights; or |
a) Sa Majesté du chef du Canada ou dune province ou lun de ses mandataires ou organismes; | |||
(b) the government of a foreign country or any political subdivision thereof, or any agent or agency thereof. |
b) tout gouvernement dun pays étranger ou dune de ses subdivisions politiques ou tout mandataire ou organisme dun tel gouvernement. | |||
Exception |
Exception | |||
(2) Despite subsection (1), a company may record in its securities register a transfer or issue of any share of the company to a foreign institution that is controlled by the government of a foreign country or any political subdivision of a foreign country, or by any agent or agency of a foreign government, if the share that is transferred or issued is beneficially owned by the foreign institution or by an entity controlled by the foreign institution. |
(2) Par dérogation au paragraphe (1), la société peut inscrire dans son registre des valeurs mobilières le transfert ou lémission de ses actions à une institution étrangère contrôlée par le gouvernement dun pays étranger ou dune de ses subdivisions politiques ou un mandataire ou organisme dun tel gouvernement si les actions sont la propriété effective de linstitution étrangère ou dune entité contrôlée par celle-ci. | |||
Exception |
Réserve | |||
(3) Despite subsection (1), a company may, with the Ministers approval, record in its securities register the issue of any share of the company to an eligible agent. |
(3) Par dérogation au paragraphe (1), la société peut, avec lagrément du ministre, inscrire dans son registre des valeurs mobilières lémission de ses actions à un mandataire admissible. | |||
Application made jointly |
Demande conjointe | |||
(4) The application for the approval referred to in subsection (3) must be made jointly by the company and the eligible agent. |
(4) La société et le mandataire admissible présentent conjointement la demande en vue dobtenir lagrément visé au paragraphe (3). | |||
Matters for consideration |
Facteurs à considérer | |||
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 388(1)(a) to (g). |
(5) Pour décider sil accorde lagrément visé au paragraphe (3), le ministre prend en considération tous les facteurs quil estime indiqués, notamment ceux visés aux alinéas 388(1)a) à g). | |||
Consequence of revocation of approval |
Conséquence de la révocation de lagrément | |||
(6) If an approval referred to in subsection (3) is revoked, the company shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent. |
(6) En cas de révocation de lagrément visé au paragraphe (3), la société supprime de son registre des valeurs mobilières toute indication à légard de |
Current to February 11, 2020 |
221 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 396-399 |
Articles 396-399 |
|
linscription de lémission des actions au mandataire admissible. | |||
Disposition of shareholdings |
Disposition des actions | |||
(7) If a company or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the company beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order. |
(7) Si le mandataire admissible ou la société contrevient à tout engagement ou à toute condition ou modalité dont lagrément visé au paragraphe (3) est assorti, ou si le mandataire admissible cesse dêtre mandataire admissible, le ministre peut, sil lestime dans lintérêt du public, par arrêté, imposer lobligation au mandataire admissible ainsi quà toute personne que celui-ci contrôle ou à la personne qui cesse dêtre mandataire admissible ainsi quà toute autre personne que celle-ci contrôle de se départir du nombre dactions précisé dans larrêté de la société dont lun ou plusieurs dentre eux ont la propriété effective, dans le délai et selon la répartition quil établit. | |||
Representations |
Observations | |||
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction. |
(8) Le ministre est tenu de donner à chaque personne visée par larrêté et à la société en cause la possibilité de présenter leurs observations sur lobjet de larrêté quil envisage de prendre. | |||
Appeal |
Appel | |||
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 530. |
(9) La personne visée par larrêté peut, dans les trente jours qui suivent sa prise, en appeler conformément à larticle 530. | |||
1991, c. 45, s. 396; 2012, c. 5, s. 165, c. 19, s. 328, c. 31, s. 105. |
1991, ch. 45, art. 396; 2012, ch. 5, art. 165, ch. 19, art. 328, ch. 31, art. 105. | |||
397 and 398 [Repealed, 1994, c. 47, s. 208] |
397 et 398 [Abrogés, 1994, ch. 47, art. 208] | |||
399 (1) [Repealed, 1994, c. 47, s. 209] |
399 (1) [Abrogé, 1994, ch. 47, art. 209] | |||
Suspension of voting rights held by governments |
Suspension des droits de vote des gouvernements | |||
(2) Notwithstanding section 151, where any voting shares of a company are beneficially owned by |
(2) Par dérogation à larticle 151, il est interdit, en personne ou par voie de fondé de pouvoir, dexercer les droits de vote attachés aux actions qui sont détenues en propriété effective: | |||
(a) Her Majesty in right of Canada or of a province or any agency of Her Majesty in either of those rights, or |
a) soit par Sa Majesté du chef du Canada ou dune province ou dun organisme de celle-ci; | |||
(b) the government of a foreign country or any political subdivision thereof, or any agency thereof,
no person shall, in person or by proxy, exercise the voting rights attached to those shares. |
b) soit par le gouvernement dun pays étranger ou dune de ses subdivisions politiques ou par un organisme dun tel gouvernement. | |||
Exception |
Exception | |||
(2.1) Subsection (2) does not apply to a foreign institution that is controlled by the government of a foreign |
(2.1) Le paragraphe (2) ne sapplique pas à linstitution étrangère qui est contrôlée par le gouvernement dun |
Current to February 11, 2020 |
222 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION II Constraints on Ownership |
SECTION II Restrictions à la propriété | |
Approval Process |
Procédure dagrément | |
Sections 399-401 |
Articles 399-401 |
country or any political subdivision of a foreign country, or by any agent or agency of a foreign government, if the shares referred to in subsection (1) are beneficially owned by the foreign institution or by an entity controlled by the foreign institution. |
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pays étranger ou dune de ses subdivisions politiques ou un mandataire ou organisme dun tel gouvernement si les actions visées à ce paragraphe sont la propriété effective de linstitution étrangère ou dune entité contrôlée par celle-ci. | ||
Transitional |
Disposition transitoire | |||
(3) Subsection (2) does not apply in respect of a government or agency referred to in that subsection that, on September 27, 1990, beneficially owned shares of a former-Act company where the exercise of the voting rights attached to those shares was not prohibited under subsection 41(2) of the Trust Companies Act or subsection 48(2) of the Loan Companies Act, as those subsections read immediately prior to June 1, 1992. |
(3) Le paragraphe (2) ne sapplique pas dans le cas où, le 27 septembre 1990, le gouvernement ou lorganisme mentionné à ce paragraphe détenait la propriété effective dactions dune société antérieure et que le paragraphe 36(2) de la Loi sur les compagnies dassurance canadiennes et britanniques, en son état au 31 mai 1992, ninterdisait pas lexercice des droits de vote attachés à ces actions. | |||
Transitional |
Disposition transitoire | |||
(4) Subsection (3) ceases to apply where a government or agency referred to in that subsection acquires beneficial ownership of any additional voting shares of the former-Act company in such number that the percentage of the voting rights attached to all of the voting shares of the former-Act company beneficially owned by the government or agency is greater than the percentage of the voting rights attached to all of the voting shares of the former-Act company that were beneficially owned by the government or agency on September 27, 1990. |
(4) Le paragraphe (3) cesse de sappliquer dans le cas où le gouvernement ou lorganisme qui y est mentionné acquiert la propriété effective dun nombre dactions avec droit de vote de la société antérieure qui augmente le pourcentage des droits de vote attachés à lensemble des actions de la société antérieure quelle détenait à titre de véritable propriétaire le 27 septembre 1990. | |||
Exception eligible agent |
Réserve mandataire admissible | |||
(5) Subsection (2) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 396(3). |
(5) Le paragraphe (2) ne sapplique pas à légard de lexercice de droits de vote rattachés à des actions visées au paragraphe 396(3). | |||
Consequence of suspension of approval |
Conséquence de la suspension de lagrément | |||
(6) If an approval referred to in subsection 396(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the company that is beneficially owned by the eligible agent. |
(6) En cas de suspension de lagrément visé au paragraphe 396(3), le mandataire admissible ne peut, ni en personne ni par voie de fondé de pouvoir, exercer les droits de vote attachés aux actions de la société quil détient en propriété effective. | |||
1991, c. 45, s. 399; 1994, c. 47, s. 209; 2012, c. 5, s. 166, c. 19, s. 329, c. 31, s. 106. | 1991, ch. 45, art. 399; 1994, ch. 47, art. 209; 2012, ch. 5, art. 166, ch. 19, art. 329, ch. 31, art. 106. | |||
400 and 400.1 [Repealed, 1994, c. 47, s. 210] |
400 et 400.1 [Abrogés, 1994, ch. 47, art. 210] | |||
DIVISION III |
SECTION III | |||
Directions |
Arrêtés et ordonnances | |||
Disposition of shareholdings |
Disposition des actions | |||
401 (1) If, with respect to any company, a person contravenes section 375 or 375.1 or fails to comply with an undertaking referred to in subsection 384(2) or with any terms and conditions imposed under section 389, the Minister may, if the Minister deems it in the public |
401 (1) Sil lestime dans lintérêt public, le ministre peut, par arrêté, imposer à la personne qui, relativement à une société, contrevient aux articles 375 ou 375.1, à lengagement visé au paragraphe 384(2) ou à des conditions ou modalités imposées dans le cadre de |
Current to February 11, 2020 |
223 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION III Directions |
SECTION III Arrêtés et ordonnances | |
General Provisions |
Dispositions dordre général | |
Sections 401-403 |
Articles 401-403 |
interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order. |
|
larticle 389 ainsi quà toute autre personne quelle contrôle lobligation de se départir du nombre dactions précisé dans larrêté de la société dont elles ont la propriété effective, dans le délai quil fixe et selon la répartition entre elles quil précise. | ||
Representations |
Observations | |||
(2) No direction shall be made under subsection (1) unless the Minister has provided each person to whom the direction relates and the company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction. |
(2) Le ministre est tenu auparavant de donner à chaque personne visée et à la société concernée la possibilité de présenter ses observations sur lobjet de larrêté quil envisage de prendre. | |||
Appeal |
Appel | |||
(3) Any person with respect to whom a direction has been made under subsection (1) may, within thirty days after the date of the direction, appeal the matter in accordance with section 530. |
(3) Les personnes visées par larrêté peuvent, dans les trente jours qui suivent sa prise, en appeler conformément à larticle 530. | |||
(4) [Repealed, 2001, c. 9, s. 529] |
(4) [Abrogé, 2001, ch. 9, art. 529] | |||
1991, c. 45, s. 401; 1996, c. 6, s. 119; 2001, c. 9, s. 529. | 1991, ch. 45, art. 401; 1996, ch. 6, art. 119; 2001, ch. 9, art. 529. | |||
Application to court |
Demande dordonnance judiciaire | |||
402 (1) If a person fails to comply with a direction made under subsection 396(7) or 401(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction. |
402 (1) En cas dinobservation de larrêté prévu aux paragraphes 396(7) ou 401(1), une ordonnance dexécution peut, au nom du ministre, être requise dun tribunal. | |||
Court order |
Ordonnance | |||
(2) A court may, on an application under subsection (1), make such order as the circumstances require to give effect to the terms of the direction and may, without limiting the generality of the foregoing, require the company concerned to sell the shares that are the subject-matter of the direction. |
(2) Le tribunal saisi de la requête peut rendre lordonnance nécessaire en lespèce pour donner effet aux modalités de larrêté et enjoindre, notamment, à la société concernée de vendre les actions en cause. | |||
Appeal |
Appel | |||
(3) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court. |
(3) Lordonnance peut être portée en appel de la même manière et devant la même juridiction que toute autre ordonnance rendue par le tribunal. | |||
1991, c. 45, s. 402; 2012, c. 31, s. 107. | 1991, ch. 45, art. 402; 2012, ch. 31, art. 107. | |||
General Provisions | Dispositions dordre général | |||
Interest of securities underwriter |
Titres acquis par un souscripteur | |||
403 This Part does not apply to a securities underwriter in respect of shares of a body corporate or ownership interests in an unincorporated entity that are acquired by the underwriter in the course of a distribution to the public of those shares or ownership interests and that are |
403 La présente partie ne sapplique pas au souscripteur à forfait dans le cas dactions dune personne morale ou de titres de participation dune entité non constituée en personne morale acquis par ce dernier dans le cadre de leur souscription publique et détenus par lui pendant au plus six mois. |
Current to February 11, 2020 |
224 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION III Directions |
SECTION III Arrêtés et ordonnances | |
General Provisions |
Dispositions dordre général | |
Sections 403-404 |
Articles 403-404 |
held by the underwriter for a period of not more than six months. |
|
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Arrangements to effect compliance |
Application | |||
404 (1) The directors of a company may make such arrangements as they deem necessary to carry out the intent of this Part and, in particular, but without limiting the generality of the foregoing, may |
404 (1) Le conseil dadministration peut prendre toute mesure quil juge nécessaire pour réaliser lobjet de la présente partie et notamment: | |||
(a) require any person in whose name a share of the company is held to submit a declaration setting out |
a) exiger des personnes au nom desquelles sont détenues des actions de la société une déclaration mentionnant : | |||
(i) the beneficial ownership of the share, and |
(i) le véritable propriétaire des actions, | |||
(ii) such other information as the directors deem relevant for the purposes of this Part; |
(ii) tout autre renseignement quil juge utile pour lapplication de la présente partie; | |||
(b) require any person who wishes to have a transfer of a share registered in the name of, or to have a share issued to, that person to submit a declaration referred to in paragraph (a) as though the person were the holder of that share; and |
b) exiger de toute personne sollicitant linscription dun transfert dactions ou une émission dactions la déclaration visée à lalinéa a) comme sil sagissait du détenteur des actions; | |||
(c) determine the circumstances in which a declaration referred to in paragraph (a) is to be required, the form of the declaration and the times at which it is to be submitted. |
c) fixer les cas où la déclaration visée à lalinéa a) est obligatoire, ainsi que la forme et les délais dans lesquels elle doit être produite. | |||
Order of Superintendent |
Ordonnance du surintendant | |||
(2) The Superintendent may, by order, direct a company to obtain from any person in whose name a share of the company is held a declaration setting out the name of every entity controlled by that person and containing information concerning |
(2) Le surintendant peut, par ordonnance, enjoindre à la société dobtenir de la personne au nom de laquelle est détenue une de ses actions une déclaration indiquant le nom de toutes les entités que contrôle cette dernière et contenant des renseignements sur la propriété ou la propriété effective de laction, ainsi que sur toutes les autres questions connexes quil précise. | |||
(a) the ownership or beneficial ownership of the share; and |
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(b) such other related matters as are specified by the Superintendent. |
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Compliance required |
Exécution | |||
(3) As soon as possible after receipt by a company of a direction under subsection (2), |
(3) La société exécute lordonnance dans les meilleurs délais après sa réception, de même que toutes les personnes à qui elle a demandé de produire la déclaration visée aux paragraphes (1) ou (2). | |||
(a) the company shall comply with the direction; and |
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(b) every person who is requested by the company to provide a declaration containing information referred to in subsection (1) or (2) shall comply with the request. |
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Outstanding declaration: effect |
Défaut de déclaration | |||
(4) Where, pursuant to this section, a declaration is required to be submitted by a shareholder or other person |
(4) Dans tous les cas où la déclaration est obligatoire, la société peut subordonner lémission dune action ou |
Current to February 11, 2020 |
225 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VII Ownership |
PARTIE VII Propriété | |
DIVISION III Directions |
SECTION III Arrêtés et ordonnances | |
General Provisions |
Dispositions dordre général | |
Sections 404-409 |
Articles 404-409 |
in respect of the issue or transfer of any share, a company may refuse to issue the share or register the transfer unless the required declaration is submitted. |
|
linscription du transfert dune action à sa production par lactionnaire ou une autre personne. | ||
Reliance on information |
Crédit accordé aux renseignements | |||
405 A company and any person who is a director or an officer, employee or agent of the company may rely on any information contained in a declaration required by the directors pursuant to section 404 or on any information otherwise acquired in respect of any matter that might be the subject of such a declaration, and no action lies against the company or any such person for anything done or omitted to be done in good faith in reliance on any such information. |
405 La société, ses administrateurs, dirigeants, employés ou mandataires peuvent se fonder sur tout renseignement soit contenu dans la déclaration prévue à larticle 404, soit obtenu de toute autre façon, concernant un point pouvant faire lobjet dune telle déclaration, et sont en conséquence soustraits aux poursuites pour tout acte ou omission de bonne foi en résultant. | |||
406 [Repealed, 1994, c. 47, s. 211] |
406 [Abrogé, 1994, ch. 47, art. 211] | |||
Exemption regulations |
Règlement dexemption | |||
407 The Governor in Council may, by regulation, exempt from any of the provisions of this Part any share transaction or any class of share transactions involving the transfer of shares on the death of the beneficial owner thereof, or any arrangement made in contemplation of the death of the beneficial owner, to one or more members of the beneficial owners family, or to one or more trustees on their behalf. |
407 Le gouverneur en conseil peut, par règlement, soustraire à lapplication de la présente partie toute opération sur des actions ou catégories dactions prévoyant leur transfert au décès de la personne qui en a la propriété effective ou conformément à une entente conclue en prévision du décès de cette personne, à un ou plusieurs membres de sa famille ou à un ou plusieurs fiduciaires pour leur compte. | |||
Competition Act |
Loi sur la concurrence | |||
408 Nothing in, or done under the authority of, this Act affects the operation of the Competition Act. |
408 La présente loi et les actes accomplis sous son régime ne portent pas atteinte à lapplication de la Loi sur la concurrence. | |||
PART VIII |
PARTIE VIII | |||
Business and Powers |
Activité et pouvoirs | |||
General Business |
Activités générales | |||
Main business |
Activité principale | |||
409 (1) Subject to this Act, a company shall not engage in or carry on any business other than such business generally as appertains to the business of providing financial services. |
409 (1) Sous réserve des autres dispositions de la présente loi, lactivité de la société doit se rattacher à la prestation de services financiers. | |||
Idem |
Idem | |||
(2) For greater certainty, a company may | (2) Il est entendu que la société peut : | |||
(a) subject to section 412, act as a trustee; |
a) sous réserve de larticle 412, agir à titre de fiduciaire; | |||
(b) act as a financial agent, receiver, liquidator or sequestrator; |
b) agir à titre dagent financier, séquestre ou liquidateur; |
Current to February 11, 2020 |
226 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 409-410 |
Articles 409-410 |
(c) provide investment counselling services and portfolio management services; and |
|
c) fournir des services de conseil en placement et de gestion de portefeuille; | ||
(d) issue payment, credit or charge cards and, in cooperation with others including other financial institutions, operate a payment, credit or charge card plan. |
d) émettre des cartes de paiement, de crédit ou de débit et, conjointement avec dautres établissements, y compris les institutions financières, exploiter un système de telles cartes. | |||
1991, c. 45, s. 409; 2009, c. 2, s. 289(F). | 1991, ch. 45, art. 409; 2009, ch. 2, art. 289(F). | |||
Additional activities |
Activités supplémentaires | |||
410 (1) In addition, a company may | 410 (1) La société peut en outre : | |||
(a) act as an agent for vendors, purchasers, mortgagors, mortgagees, lessors or lessees of real property and provide consulting or appraisal services in respect of real property;
(b) hold, manage and otherwise deal with real property;
(c) outside Canada, or with the prior written approval of the Minister, in Canada, engage in any of the following activities, namely,
(i) collecting, manipulating and transmitting
(A) information that is primarily financial or economic in nature,
(B) information that relates to the business of a permitted entity, as defined in subsection 449(1), or
(C) any other information that the Minister may, by order, specify,
(ii) providing advisory or other services in the design, development or implementation of information management systems,
(iii) designing, developing or marketing computer software, and
(iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subparagraphs (i) to (iii) that the company is engaging in, computer equipment integral to the provision of information services related to the business of financial institutions or to the provision of financial services;
(c.1) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used |
a) agir en qualité de mandataire pour des acheteurs, des vendeurs, des créanciers ou débiteurs hypothécaires, des locataires ou des bailleurs de biens immeubles et fournir des services de consultation et dévaluation en matière de biens immeubles;
b) détenir ou gérer des biens immeubles ou effectuer toutes opérations à leur égard;
c) à létranger ou, à la condition dobtenir au préalable lagrément écrit du ministre, au Canada, exercer les activités suivantes :
(i) la collecte, la manipulation et la transmission dinformation principalement de nature financière ou économique ou relative à lactivité commerciale des entités admissibles, au sens du paragraphe 449(1), ou encore précisée par arrêté du ministre,
(ii) la prestation de services consultatifs ou autres en matière de conception, de développement ou de mise sur pied de systèmes de gestion de linformation,
(iii) la conception, le développement ou la commercialisation de logiciels,
(iv) accessoirement à toute activité visée aux sousalinéas (i) à (iii) quelle exerce, la conception, le développement, la fabrication ou la vente de matériel informatique indispensable à la prestation de services dinformation liés à lactivité commerciale des institutions financières ou de services financiers;
c.1) à la condition dobtenir au préalable lagrément écrit du ministre, soccuper, notamment en les concevant, les développant, les détenant, les gérant, les fabriquant ou les vendant, de systèmes de transmission de données, de sites dinformation, de moyens de communication ou de plateformes informatiques ou portails dinformation qui sont utilisés : |
Current to February 11, 2020 |
227 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Section 410 |
Article 410 |
(i) to provide information that is primarily financial or economic in nature, |
(i) soit pour la fourniture dinformation principalement de nature financière ou économique, | |||
(ii) to provide information that relates to the business of a permitted entity, as defined in subsection 449(1), or |
(ii) soit pour la fourniture dinformation relative à lactivité commerciale des entités admissibles, au sens du paragraphe 449(1), | |||
(iii) for a prescribed purpose or in prescribed circumstances; |
(iii) soit à une fin réglementaire ou dans des circonstances réglementaires; | |||
(d) in Canada, engage in such activities referred to in paragraph (c) that the company was engaged in prior to June 1, 1992; |
d) exercer au Canada toute activité visée à lalinéa c) quelle exerçait avant le 1er juin 1992; | |||
(d.1) engage, under prescribed terms and conditions, if any are prescribed, in specialized business management or advisory services; |
d.1) fournir, aux conditions éventuellement fixées par règlement, des services spéciaux de gestion commerciale ou des services de consultation; | |||
(e) promote merchandise and services to the holders of any payment, credit or charge card issued by the company; |
e) faire la promotion darticles et de services auprès des titulaires de cartes de paiement, de crédit ou de débit délivrées par elle; | |||
(f) engage in the sale of |
f) vendre des billets : | |||
(i) tickets, including lottery tickets, on a non-profit public service basis in connection with special, temporary and infrequent non-commercial celebrations or projects that are of local, municipal, provincial or national interest, |
(i) y compris de loterie, à titre de service public non lucratif pour des fêtes ou activités spéciales, temporaires, à caractère non commercial et dintérêt local, municipal, provincial ou national, | |||
(ii) urban transit tickets, and |
(ii) de transport en commun urbain, | |||
(iii) tickets in respect of a lottery sponsored by the federal government or a provincial or municipal government or an agency of any such government or governments; |
(iii) dune loterie parrainée par le gouvernement fédéral, un gouvernement provincial ou une administration municipale, ou encore par tout organisme de lun ou lautre; | |||
(g) act as a custodian of property; and |
g) faire fonction de gardien de biens; | |||
(h) provide identification, authentication or verification services. |
h) fournir des services didentification, dauthentification ou de vérification. | |||
Restriction |
Interdiction | |||
(2) Except as authorized by or under this Act, a company shall not deal in goods, wares or merchandise or engage in any trade or other business. |
(2) Sauf autorisation prévue sous le régime de la présente loi, il est interdit à la société dexercer quelque activité commerciale que ce soit et notamment de faire le commerce darticles ou de marchandises. | |||
Regulations |
Règlements | |||
(3) The Governor in Council may make regulations | (3) Le gouverneur en conseil peut, par règlement : | |||
(a) respecting what a company may or may not do with respect to the carrying on of the activities referred to in paragraphs (1)(c), (c.1) and (d.1); |
a) prévoir ce que la société peut ou ne peut pas faire dans le cadre de lexercice des activités visées aux alinéas (1)c), c.1) ou d.1); | |||
(b) imposing terms and conditions in respect of the provision of the services referred to in paragraphs |
Current to February 11, 2020 |
228 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 410-413 |
Articles 410-413 |
(1)(a) and 409(2)(c) and the carrying on of the activities referred to in paragraphs (1)(c), (c.1) and (d.1); and |
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b) assortir de conditions cet exercice et la prestation des services financiers visés aux alinéas (1)a) et 409(2)c); | ||
(c) respecting the circumstances in which companies may be exempted from the requirement to obtain the approval of the Minister before carrying on a particular activity referred to in paragraph (1)(c) or (c.1). |
c) prévoir les circonstances dans lesquelles la société peut être exemptée de lobligation dobtenir au préalable lagrément du ministre pour exercer une activité visée aux alinéas (1)c) ou c.1). | |||
1991, c. 45, s. 410; 1993, c. 34, s. 126(F); 1997, c. 15, s. 375; 2001, c. 9, s. 530; 2018, c. 12, s. 310. | 1991, ch. 45, art. 410; 1993, ch. 34, art. 126(F); 1997, ch. 15, art. 375; 2001, ch. 9, art. 530; 2018, ch. 12, art. 310. | |||
Networking |
Prestation de service | |||
411 Subject to section 416, a company may | 411 Sous réserve de larticle 416, la société peut : | |||
(a) act as agent for any person in respect of the provision of any service that is provided by a financial institution, a permitted entity as defined in subsection 449(1) or a prescribed entity and may enter into an arrangement with any person in respect of the provision of that service; or |
a) soit faire fonction de mandataire pour la prestation de tout service offert par une institution financière, par une entité admissible, au sens du paragraphe 449(1), ou par une entité visée par règlement et conclure une entente en vue de sa prestation; | |||
(b) refer any person to any such financial institution or entity. |
b) soit renvoyer toute personne à une telle institution financière ou entité. | |||
1991, c. 45, s. 411; 2001, c. 9, s. 531. | 1991, ch. 45, art. 411; 2001, ch. 9, art. 531. | |||
Restriction on fiduciary activities |
Restrictions : activités fiduciaires | |||
412 No company, other than a company that is a trust company pursuant to subsection 57(2), shall act in Cana-da as |
412 Il est interdit à la société, à lexception de la société de fiducie au sens du paragraphe 57(2), dagir au Canada soit comme fiduciaire, soit comme exécuteur testamentaire, administrateur, gardien officiel, gardien, tuteur, curateur ou conseil judiciaire dun incapable. | |||
(a) an executor, administrator or official guardian or a guardian, tutor, curator, judicial adviser or committee of a mentally incompetent person; or |
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(b) a trustee for a trust. |
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Restriction on deposit taking |
Conditions pour accepter des dépôts | |||
413 (1) A company shall not accept deposits in Canada unless |
413 (1) Il est interdit à la société daccepter des dépôts au Canada, sauf : | |||
(a) it is a member institution, as defined in section 2 of the Canada Deposit Insurance Corporation Act; |
a) si elle est une institution membre au sens de larticle 2 de la Loi sur la Société dassurance-dépôts du Canada; | |||
(b) it has been authorized under subsection 26.03(1) of that Act to accept deposits without being a member institution, as defined in section 2 of that Act; or |
b) si, nétant pas une institution membre au sens de cet article, elle est autorisée à le faire au titre du paragraphe 26.03(1) de cette loi; | |||
(c) the order approving the commencement and carrying on of business in Canada by the company authorizes it to accept deposits solely in accordance with subsection (2). |
c) si elle est autorisée, au titre de son agrément de fonctionnement, à accepter des dépôts uniquement en conformité avec le paragraphe (2). | |||
Deposits that fall below $150,000 |
Obligation de la société | |||
(2) A company referred to in paragraph (1)(b) or (c) shall ensure that, on each day that is at least 30 days after the |
(2) La société visée aux alinéas (1)b) ou c) doit sassurer que les dépôts payables au Canada quelle détient |
Current to February 11, 2020 |
229 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 413-413.1 |
Articles 413-413.1 |
company receives the authorization referred to in that paragraph, |
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satisfont en tout temps, après le trentième jour suivant lautorisation visée à cet alinéa, à léquation suivante : | ||
A/B £ 0.01 | A/B £ 0,01 | |||
where |
où : | |||
A is the sum of all amounts each of which is the sum of all the deposits held by the company at the end of a day in the preceding 30 days each of which deposits is less than $150,000 and payable in Canada; and |
A représente le total de la somme de tous les dépôts de moins de 150 000 $, calculée sur une base quotidienne, détenus par cette société durant les trente derniers jours; | |||
B is the sum of all amounts each of which is the sum of all deposits held by the company at the end of a day in those preceding 30 days and payable in Canada. |
B le total de la somme de tous les dépôts détenus par cette société, calculée sur une base quotidienne, pour chacun de ces trente jours. | |||
Exchange rate |
Taux de change | |||
(3) For the purpose of subsection (2), the rate of exchange to be applied on any day in determining the amount in Canadian dollars of a deposit in a currency of a country other than Canada is to be determined in accordance with rules prescribed under subsection 26.03(2) of the Canada Deposit Insurance Corporation Act. |
(3) Pour lapplication du paragraphe (2), le taux de change applicable pour la détermination du montant en dollars canadiens dun dépôt fait en devises étrangères est déterminé conformément aux règles visées au paragraphe 26.03(2) de la Loi sur la Société dassurance-dépôts du Canada. | |||
Definition of deposit |
Définition de dépôt | |||
(4) For the purpose of subsection (2), deposit has the meaning that would be given to that term by the schedule to the Canada Deposit Insurance Corporation Act for the purposes of deposit insurance if that schedule were read without reference to subsections 2(2), (5) and (6) of that schedule, but does not include prescribed deposits. |
(4) Pour lapplication du paragraphe (2), dépôt sentend au sens que lui donne, dans le cadre de lassurance-dépôts, lannexe de la Loi sur la Société dassurance-dépôts du Canada, exception faite des paragraphes 2(2), (5) et (6) de cette annexe. Ne sont toutefois pas considérés comme des dépôts les dépôts prévus par les règlements. | |||
Regulations |
Règlements | |||
(5) The Governor in Council may make regulations | (5) Le gouverneur en conseil peut, par règlement : | |||
(a) prescribing the deposits referred to in subsection (4); and |
a) prévoir les dépôts visés au paragraphe (4); | |||
(b) prescribing terms and conditions with respect to the acceptance of those deposits. |
b) prévoir les modalités et conditions relatives à lacceptation de ces dépôts. | |||
1991, c. 45, s. 413; 2007, c. 6, s. 358. | 1991, ch. 45, art. 413; 2007, ch. 6, art. 358. | |||
Notice before opening account or providing prescribed product |
Avis de la société | |||
413.1 (1) Before a company referred to in paragraph 413(1)(b) or (c) opens a deposit account in Canada or provides in Canada any prescribed product that relates to a deposit, the company shall, in the prescribed manner, give the person requesting the opening of the account or the provision of the product |
413.1 (1) La société visée aux alinéas 413(1)b) ou c) doit, avant douvrir un compte de dépôt ou de fournir relativement à un dépôt un produit réglementaire au Canada et selon les modalités réglementaires : | |||
(a) a notice in writing that deposits to the deposit account, or that the deposit that relates to the prescribed product, as the case may be, will not be insured by the |
a) aviser par écrit la personne qui en fait la demande du fait que ses dépôts dans le compte ou le dépôt relatif au produit réglementaire ne seront pas assurés par la Société dassurance-dépôts du Canada ou, dans le cas où la demande est faite par téléphone, len aviser oralement; |
Current to February 11, 2020 |
230 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 413.1-413.2 |
Articles 413.1-413.2 |
Canada Deposit Insurance Corporation or, if the request is made by telephone, a verbal notice to that effect; and |
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b) lui communiquer toute linformation réglementaire. | ||
(b) any other information that may be prescribed. |
||||
Other notice |
Avis publics | |||
(2) A company referred to in paragraph 413(1)(b) or (c) shall, in accordance with any regulations that may be made,
(a) post notices at all of its branches, and at prescribed points of service, in Canada where deposits are accepted, and on all of its websites at which deposits are accepted in Canada, to inform the public that deposits with the company are not insured by the Canada Deposit Insurance Corporation; and
(b) include in its advertisements notices to inform the public that deposits with the company are not insured by the Canada Deposit Insurance Corporation. |
(2) Elle doit également, afin dinformer le public, afficher, de la façon prévue par règlement, dans ses bureaux et dans ses points de service réglementaires au Canada où des dépôts sont acceptés et sur ceux de ses sites Web où des dépôts sont acceptés au Canada, des avis indiquant que les dépôts quelle détient ne sont pas assurés par la Société dassurance-dépôts du Canada et faire paraître la même information dans sa publicité. | |||
Regulations |
Règlements | |||
(3) The Governor in Council may make regulations | (3) Le gouverneur en conseil peut, par règlement : | |||
(a) prescribing the manner in which notices referred to in subsection (1) are to be given and the additional information to be contained in the notices; and |
a) prévoir la façon de donner les avis prévus au paragraphe (1) et préciser les renseignements supplémentaires quils doivent contenir; | |||
(b) respecting notices for the purpose of subsection (2). |
b) régir les avis prévus au paragraphe (2). | |||
2007, c. 6, s. 358. | 2007, ch. 6, art. 358. | |||
Deposits less than $150,000 |
Restriction | |||
413.2 (1) Subject to the regulations, a company referred to in paragraph 413(1)(b) or (c) may not, in respect of its business in Canada, act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada. |
413.2 (1) Sous réserve des règlements, la société visée aux alinéas 413(1)b) ou c) ne peut, dans le cadre de lexercice de ses activités au Canada, faire fonction de mandataire pour lacceptation dun dépôt de moins de 150 000 $ payable au Canada. | |||
Definition of deposit |
Définition de dépôt | |||
(2) In this section, deposit has the meaning assigned by subsection 413(4). |
(2) Pour lapplication du présent article, dépôt sentend au sens du paragraphe 413(4). | |||
Regulations |
Règlements | |||
(3) The Governor in Council may make regulations respecting the circumstances in which, and the conditions under which, a company referred to in subsection (1) may act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada. |
(3) Le gouverneur en conseil peut, par règlement, régir les circonstances dans lesquelles une société visée par le paragraphe (1) peut faire fonction de mandataire pour lacceptation dun dépôt de moins de 150 000 $ payable au Canada et les modalités afférentes. | |||
2007, c. 6, s. 358. | 2007, ch. 6, art. 358.6 |
Current to February 11, 2020 |
231 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 413.3-414 |
Articles 413.3-414 |
Shared premises |
Interdiction de partager des locaux | |||
413.3 (1) Subject to the regulations, no company referred to in paragraph 413(1)(b) or (c) shall carry on business in Canada on premises that are shared with those of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the company. |
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413.3 (1) Sous réserve des règlements, la société visée aux alinéas 413(1)b) ou c) ne peut exercer ses activités au Canada dans les mêmes locaux quune institution membre, au sens de larticle 2 de la Loi sur la Société dassurance-dépôts du Canada, qui fait partie de son groupe. | ||
Limitation |
Exception | |||
(2) Subsection (1) only applies in respect of premises or any portion of premises on which both the company and the member institution carry on business with the public and to which the public has access. |
(2) Le paragraphe (1) ne sapplique quaux locaux ou parties de local dans lesquels la société et linstitution membre traitent avec le public et auxquels le public a accès. | |||
Adjacent premises |
Interdiction relative aux locaux adjacents | |||
(3) Subject to the regulations, no company referred to in paragraph 413(1)(b) or (c) shall carry on business in Canada on premises that are adjacent to a branch or office of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the company, unless the company clearly indicates to its customers that its business and the premises on which it is carried on are separate and distinct from the business and premises of the affiliated member institution. |
(3) Sous réserve des règlements, la société visée aux alinéas 413(1)b) ou c) ne peut exercer ses activités au Canada dans des locaux adjacents à ceux dun bureau ou dune succursale dune institution membre, au sens de larticle 2 de la Loi sur la Société dassurance-dépôts du Canada, qui fait partie de son groupe que si elle indique clairement à ses clients que ses activités et les locaux où elle les exerce sont distincts de ceux de linstitution membre. | |||
Regulations |
Règlements | |||
(4) The Governor in Council may make regulations | (4) Le gouverneur en conseil peut, par règlement : | |||
(a) respecting the circumstances in which, and the conditions under which, a company referred to in paragraph 413(1)(b) or (c) may carry on business in Canada on premises that are shared with those of a member institution referred to in subsection (1); and |
a) régir les circonstances dans lesquelles une société visée aux alinéas 413(1)b) ou c) peut exercer ses activités au Canada dans les mêmes locaux quune institution membre visée par le paragraphe (1) ainsi que les modalités afférentes; | |||
(b) respecting the circumstances in which, and the conditions under which, a company referred to in paragraph 413(1)(b) or (c) may carry on business in Canada on premises that are adjacent to a branch or office of a member institution referred to in subsection (3). |
b) régir les circonstances dans lesquelles une société visée aux alinéas 413(1)b) ou c) peut exercer ses activités au Canada dans des locaux adjacents à ceux dun bureau ou dune succursale dune institution membre visée par le paragraphe (3) ainsi que les modalités afférentes. | |||
2007, c. 6, s. 358. | 2007, ch. 6, art. 358. | |||
Restriction on guarantees |
Restrictions : garanties | |||
414 (1) A company shall not guarantee on behalf of any person the payment or repayment of any sum of money unless |
414 (1) Il est interdit à la société de garantir le paiement ou le remboursement dune somme dargent, sauf si, dune part, il sagit dune somme fixe avec ou sans intérêts et, dautre part, la personne au nom de qui elle fournit la garantie sest engagée inconditionnellement envers elle à lui en remettre le plein montant. | |||
(a) the sum of money is a fixed sum of money with or without interest thereon; and
(b) the person on whose behalf the company has undertaken to guarantee the payment or repayment has an unqualified obligation to reimburse the company |
Current to February 11, 2020 |
232 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 414-415.1 |
Articles 414-415.1 |
for the full amount of the payment or repayment to be guaranteed. |
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Exception |
Exception | |||
(2) Paragraph (1)(a) does not apply where the person on whose behalf the company has undertaken to guarantee a payment or repayment is a subsidiary of the company. |
(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de la société garante, celle-ci peut garantir une somme qui nest pas fixe. | |||
Idem |
Idem | |||
(3) Notwithstanding subsection (1), a company may guarantee repayment of the principal or payment of the interest, or both, of any moneys entrusted to the company for investment, on such terms and conditions as are agreed on. |
(3) Par dérogation au paragraphe (1), la société peut garantir, selon les modalités convenues, le remboursement du principal ou le versement dintérêts, ou les deux, à légard des fonds qui lui sont remis en fiducie pour placement. | |||
Regulations |
Règlements | |||
(4) The Governor in Council may make regulations imposing terms and conditions in respect of guarantees permitted by this section. |
(4) Le gouverneur en conseil peut, par règlement, imposer des conditions à légard des garanties autorisées au titre du paragraphe (1). | |||
1991, c. 45, s. 414; 1997, c. 15, s. 376; 2001, c. 9, s. 532. | 1991, ch. 45, art. 414; 1997, ch. 15, art. 376; 2001, ch. 9, art. 532. | |||
Restriction on securities activities |
Restriction : valeurs mobilières | |||
415 A company shall not deal in Canada in securities to the extent prohibited or restricted by such regulations as the Governor in Council may make for the purposes of this section. |
415 Il est interdit à la société, dans la mesure prévue par les règlements pris par le gouverneur en conseil pour lapplication du présent article, de faire, au Canada, le commerce des valeurs mobilières. | |||
Prohibition |
Restriction : obligations sécurisées | |||
415.1 (1) It is prohibited for a company to issue a debt obligation in relation to which the amounts of principal and interest owing are guaranteed to be paid from loans or other assets held by an entity that is created and organized for the principal purpose of holding those loans or other assets and with the intention of legally isolating those loans or other assets from the company, unless |
415.1 (1) Il est interdit à la société démettre tout titre de créance dont le remboursement en principal et en intérêts est garanti par des prêts ou autres actifs détenus par une entité qui a été constituée principalement en vue de les détenir, et ce, dans le but de les isoler juridiquement de la société, sauf si les conditions ci-après sont réunies : | |||
(a) the debt obligation is a covered bond as defined in section 21.5 of the National Housing Act; |
a) le titre de créance est une obligation sécurisée au sens de larticle 21.5 de la Loi nationale sur lhabitation; | |||
(b) the company is a registered issuer as defined in section 21.5 of that Act other than one whose right to issue covered bonds has been suspended; and |
b) la société est un émetteur inscrit au sens de larticle 21.5 de cette loi et son droit démettre des obligations sécurisées ne fait pas lobjet dune suspension; | |||
(c) the debt obligation is issued under a registered program as defined in section 21.5 of that Act. |
c) lémission est faite dans le cadre dun programme inscrit au sens de larticle 21.5 de cette loi. | |||
Exception |
Exception | |||
(2) The Governor in Council may make regulations exempting any type of debt obligation from the application of subsection (1). |
(2) Le gouverneur en conseil peut prendre des règlements exemptant tout type de titre de créance de lapplication du paragraphe (1). | |||
2012, c. 19, s. 361. | 2012, ch. 19, art. 361. |
Current to February 11, 2020 |
233 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Section 416 |
Article 416 |
Restriction on insurance business |
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Restriction : assurances | ||
416 (1) A company shall not undertake the business of insurance except to the extent permitted by this Act or the regulations. |
416 (1) Il est interdit à la société de se livrer au commerce de lassurance, sauf dans la mesure permise par la présente loi ou les règlements. | |||
Restriction on acting as agent |
Restriction : mandataire | |||
(2) A company shall not act in Canada as agent for any person in the placing of insurance and shall not lease or provide space in any branch in Canada of the company to any person engaged in the placing of insurance. |
(2) Il est interdit à la société dagir au Canada à titre dagent pour la souscription dassurance et de louer ou fournir des locaux dans ses bureaux au Canada à une personne se livrant au commerce de lassurance. | |||
Regulations |
Règlements afférents | |||
(3) The Governor in Council may make regulations respecting the matters referred to in subsection (1) and regulations respecting relations between companies and
(a) entities that undertake the business of insurance; or |
(3) Le gouverneur en conseil peut, par règlement, régir les interdictions visées au paragraphe (1) ainsi que les relations des sociétés avec les entités se livrant au commerce de lassurance ou avec les agents ou courtiers dassurances. | |||
(b) insurance agents or insurance brokers. |
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Saving |
Précision | |||
(4) Nothing in this section precludes a company from
(a) requiring insurance to be placed by a borrower for the security of the company; or
(b) obtaining group insurance for its employees or the employees of any bodies corporate in which it has a substantial investment pursuant to section 453. |
(4) Le présent article nempêche toutefois pas la société de faire souscrire par un emprunteur une assurance à son profit, ni dobtenir une assurance collective pour ses employés ou ceux des personnes morales dans lesquelles elle a un intérêt de groupe financier en vertu de larticle 453. | |||
No pressure |
Interdiction dexercer des pressions | |||
(5) No company shall exercise pressure on a borrower to place insurance for the security of the company in any particular insurance company, but a company may require that an insurance company chosen by a borrower meet with its approval, which shall not be unreasonably withheld. |
(5) La société ne peut exercer de pression sur un emprunteur pour lui faire souscrire, auprès dune compagnie dassurance donnée, une assurance à son profit; toutefois le présent paragraphe nempêche pas la société dexiger que lassurance soit contractée auprès dune compagnie dassurance agréée par elle, la société ne pouvant refuser son agrément sans motif valable. | |||
Definition of business of insurance |
Définition de commerce de lassurance | |||
(6) In this section, business of insurance includes | (6) Pour lapplication du présent article, le commerce de lassurance vise notamment : | |||
(a) the issuance of any annuity if the liability in respect of the annuity is contingent on the death of a person; and |
a) la constitution dune rente viagère; | |||
(b) the issuance of any debt obligation, any of whose terms and conditions are established on the basis of mortality considerations, under which the issuer is obliged to make periodic payments. |
b) lémission dun titre de créance qui est assorti de conditions établies en fonction de considérations liées à la mortalité et qui prévoit des versements périodiques de la part de lémetteur. | |||
1991, c. 45, s. 416; 2012, c. 19, s. 205. | 1991, ch. 45, art. 416; 2012, ch. 19, art. 205. |
Current to February 11, 2020 |
234 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Sections 417-418.1 |
Articles 417-418.1 |
Restriction on leasing |
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Restrictions : crédit-bail | ||
417 A company shall not engage in Canada in any personal property leasing activity in which a financial leasing entity, within the meaning of subsection 449(1), is not permitted to engage. |
417 Il est interdit à la société dexercer au Canada toute activité de crédit-bail mobilier quune entité soccupant de crédit-bail, au sens du paragraphe 449(1), nest pas elle-même autorisée à exercer. | |||
1991, c. 45, s. 417; 2001, c. 9, s. 533. | 1991, ch. 45, art. 417; 2001, ch. 9, art. 533. | |||
Restriction on residential mortgages |
Restrictions : hypothèques | |||
418 (1) A company shall not make a loan in Canada on the security of residential property in Canada for the purpose of purchasing, renovating or improving that property, or refinance such a loan, if the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, would exceed 80 per cent of the value of the property at the time of the loan. |
418 (1) Il est interdit à la société de faire garantir par un immeuble résidentiel situé au Canada un prêt consenti au Canada pour lachat, la rénovation ou lamélioration de cet immeuble, ou de renouveler un tel prêt, si la somme de celui-ci et du solde impayé de toute hypothèque de rang égal ou supérieur excède quatre-vingts pour cent de la valeur de limmeuble au moment du prêt. | |||
Exception |
Exception | |||
(2) Subsection (1) does not apply in respect of | (2) Le paragraphe (1) ne sapplique pas : | |||
(a) a loan made or guaranteed under the National Housing Act or any other Act of Parliament by or pursuant to which a different limit on the value of property on the security of which the company may make a loan is established;
(b) a loan if repayment of the amount of the loan that exceeds the maximum amount set out in subsection (1) is guaranteed or insured by a government agency or a private insurer approved by the Superintendent;
(c) the acquisition by the company from an entity of securities issued or guaranteed by the entity that are secured on any residential property, whether in favour of a trustee or otherwise, or the making of a loan by the company to the entity against the issue of such securities; or
(d) a loan secured by a mortgage where
(i) the mortgage is taken back by the company on a property disposed of by the company, including where the disposition is by way of a realization of a security interest, and
(ii) the mortgage secures payment of an amount payable to the company for the property. |
a) au prêt consenti ou garanti en vertu de la Loi nationale sur lhabitation ou de toute autre loi fédérale aux termes de laquelle est fixée une limite différente sur la valeur de limmeuble qui constitue lobjet de la garantie;
b) au prêt dont le remboursement, en ce qui touche le montant excédant le plafond fixé au paragraphe (1), est garanti ou assuré par un gouvernemental ou par un assureur privé agréé par le surintendant;
c) à lacquisition par la société, dune entité, de valeurs mobilières émises ou garanties par celle-ci et qui confèrent une sûreté sur un immeuble résidentiel soit en faveur dun fiduciaire soit de toute autre manière, ou aux prêts consentis par la société à lentité en contrepartie de lémission des valeurs mobilières en question;
d) au prêt garanti par une hypothèque consentie à la société en garantie du paiement du prix de vente dun bien quelle aliène, y compris par suite de lexercice dun droit hypothécaire. organisme | |||
1991, c. 45, s. 418; 1997, c. 15, s. 377; 2007, c. 6, s. 359. | 1991, ch. 45, art. 418; 1997, ch. 15, art. 377; 2007, ch. 6, art. 359. | |||
Restriction on charges to borrowers |
Restriction touchant les sommes exigées des emprunteurs | |||
418.1 (1) Subject to any regulations made under subsection (2), a company that has obtained insurance or a guarantee against default on a loan made in Canada on the security of residential property shall not charge a |
418.1 (1) Sous réserve des règlements pris en vertu du paragraphe (2), la société qui obtient une assurance ou une garantie pour se protéger contre le non-paiement dun prêt consenti au Canada et garanti par un immeuble |
Current to February 11, 2020 |
235 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
General Business |
Activités générales | |
Section 418.1 | Article 418.1 |
Regulations
(2) The Governor in Council may make regulations
(a) respecting the determination of the actual cost to a company for the purposes of subsection (1);
(b) respecting the circumstances in which a company is exempt from the application of subsection (1);
(c) respecting, in relation to insurance or a guarantee against default on a loan made by a company in Cana-da on the security of residential property,
(i) the arrangements into which the company, its representatives and its employees may or may not enter, and
(ii) the payments or benefits that the company, its representatives and its employees may or may not accept from an insurer or the insurers affiliates; and
(d) respecting any other matters necessary to carry out the purposes of subsection (1). |
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Règlements
(2) Le gouverneur en conseil peut, par règlement :
a) prévoir, pour lapplication du paragraphe (1), la détermination du coût réel pour la société;
b) prévoir les circonstances dans lesquelles la société est soustraite à lapplication du paragraphe (1);
c) relativement à une assurance ou à une garantie contre le non-paiement dun prêt consenti par une société au Canada et garanti par un immeuble résidentiel :
(i) prévoir les arrangements que peut ou ne peut pas conclure la société, ses employés ou ses représentants,
(ii) prévoir les paiements ou avantages que la société, ses employés ou ses représentants peuvent ou ne peuvent pas accepter de la part dun assureur ou dun membre du groupe de ce dernier;
d) prendre toute autre mesure nécessaire à lapplication du paragraphe (1). |
Regulations disclosure
(3) The Governor in Council may make regulations respecting the disclosure by a company of information relating to insurance or a guarantee against default on a loan made by the company in Canada on the security of residential property, including regulations respecting |
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Règlements : communication de renseignements
(3) Le gouverneur en conseil peut prendre des règlements portant sur la communication de renseignements, par une société, relativement à une assurance ou à une garantie contre le non-paiement dun prêt quelle consent au Canada et qui est garanti par un immeuble résidentiel, notamment des règlements concernant : | ||
(a) the information that must be disclosed, including information relating to |
a) les renseignements à communiquer, ayant trait notamment : | |||
(i) the person who benefits from the insurance or guarantee, |
(i) à la personne bénéficiant de lassurance ou de la garantie, | |||
(ii) the arrangements between the company, its representatives or its employees and the insurer or the insurers affiliates, and |
(ii) aux arrangements entre la société, ses employés ou ses représentants et lassureur ou un membre du groupe de ce dernier, | |||
(iii) the payments and benefits that the company, its representatives and its employees accept from an insurer or the insurers affiliates; |
(iii) aux paiements et aux avantages que la société, ses employés ou ses représentants acceptent de lassureur ou dun | |||
(b) the time and place at which, the form and manner in which and the persons to whom information is to be disclosed; and |
b) les modalités de temps, lieu et forme de la communication, ainsi que les destinataires de celle-ci; |
Current to February 11, 2020 |
236 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VI Corporate Governance |
PARTIE VI Administration de la société | |
General Business |
Activités générales | |
Sections 418.1-421 | Articles 418.1-421 |
(c) the circumstances under which a company is not required to disclose information. |
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c) les circonstances dans lesquelles la société nest pas tenue de fournir les renseignements. | ||
2009, c. 2, s. 290; 2012, c. 5, s. 167(E). |
2009, ch. 2, art. 290; 2012, ch. 5, art. 167(A). |
Policies re security interests |
Principes en matière de sûretés | |||
419 (1) The directors of a company shall establish and the company shall adhere to policies regarding the creation of security interests in property of the company to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests. |
419 (1) La société est tenue de se conformer aux principes que son conseil dadministration a le devoir détablir en ce qui concerne la constitution de sûretés pour garantir lexécution de ses obligations et lacquisition dun droit de propriété effective sur des biens grevés dune sûreté. | |||
Order to amend policies |
Ordonnance de modification | |||
(2) The Superintendent may, by order, direct a company to amend its policies as specified in the order. |
(2) Le surintendant peut, par ordonnance, enjoindre à la société de modifier ces principes selon les modalités quil précise dans lordonnance. | |||
Compliance |
Obligation de se conformer | |||
(3) A company shall comply with an order made under subsection (2) within the time specified in the order. |
(3) La société est tenue de se conformer à lordonnance visée au paragraphe (2) dans le délai que lui fixe le surintendant. | |||
1991, c. 45, s. 419; 1999, c. 31, s. 219(E); 2001, c. 9, s. 534; 2007, c. 6, s. 360(F). |
1991, ch. 45, art. 419; 1999, ch. 31, art. 219(A); 2001, ch. 9, art. 534; 2007, ch. 6, art. 360(F). | |||
Regulations and guidelines |
Règlements et lignes directrices | |||
419.1 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a company of security interests in its property to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests. |
419.1 Le gouverneur en conseil peut prendre des règlements et le surintendant donner des lignes directrices concernant lexigence formulée au paragraphe 419(1). | |||
2001, c. 9, s. 534. |
2001, ch. 9, art. 534. | |||
Exception |
Exception | |||
419.2 Sections 419 and 419.1 do not apply in respect of a security interest created by a company to secure an obligation of the company to the Bank of Canada or the Canada Deposit Insurance Corporation. |
419.2 Les articles 419 et 419.1 ne sappliquent pas aux sûretés constituées par la société pour garantir lexécution de ses obligations envers la Banque du Canada ou la Société dassurance-dépôts du Canada. | |||
2001, c. 9, s. 534. |
2001, ch. 9, art. 534. | |||
Restriction on receivers |
Restrictions : séquestres | |||
420 A company shall not grant to a person the right to appoint a receiver or a receiver and manager of the property or business of the company. |
420 La société ne peut accorder à quelque personne que ce soit le droit de nommer un séquestre ou un séquestre-gérant en ce qui touche ses biens ou son activité. | |||
Restriction on partnerships |
Restrictions relatives aux sociétés de personnes | |||
421 (1) Except with the approval of the Superintendent, a company may not be a general partner in a limited partnership or a partner in a general partnership. |
421 (1) La société ne peut être le commandité dune société en commandite ou lassocié dune société de personnes que si le surintendant ly autorise. |
Current to February 11, 2020 |
237 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Fiduciary Activities |
Activités fiduciaires | |
Sections 421-423 | Articles 421-423 |
Meaning of general partnership |
Sens de société de personnes | |||
(2) For the purposes of subsection (1), general partnership means any partnership other than a limited partnership. |
(2) Pour lapplication du paragraphe (1), société de personnes sentend de toute société de personnes autre quune société en commandite. | |||
1991, c. 45, s. 421; 2001, c. 9, s. 535. |
|
1991, ch. 45, art. 421; 2001, ch. 9, art. 535. | ||
Fiduciary Activities |
|
Activités fiduciaires | ||
Separate and distinct |
Séparation des fonds en fiducie | |||
422 (1) A company shall keep money and other assets acquired or held in trust by the company separate and distinct from its own assets and shall keep a separate account for each trust. |
422 (1) La société sépare de son propre actif tous les fonds et autres éléments dactif quelle acquiert ou détient en fiducie et tient un compte distinct pour chaque fiducie. | |||
Common trust fund |
Fonds collectif | |||
(2) Unless the instrument creating a trust otherwise provides, a company may invest money it holds in trust in one or more common trust funds. |
(2) Sauf disposition contraire de lacte créant une fiducie, la société peut placer largent quelle détient en fiducie dans un ou plusieurs fonds collectifs. | |||
Deposit Acceptance | Dépôts | |||
Deposit acceptance |
Dépôts | |||
423 (1) A company may, without the intervention of any other person, |
423 (1) La société peut, sans aucune intervention extérieure, accepter un dépôt dune personne ayant ou non la capacité juridique de contracter de même que payer, en tout ou en partie, le principal et les intérêts correspondants à cette personne ou à son ordre. | |||
(a) accept a deposit from any person whether or not the person is qualified by law to enter into contracts; and |
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(b) pay all or part of the principal of the deposit and all or part of the interest thereon to or to the order of that person. |
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Exception |
Exception | |||
(2) Paragraph (1)(b) does not apply if, before payment, the money deposited in the company pursuant to paragraph (1)(a) is claimed by some other person |
(2) Le paragraphe (1) ne sapplique pas en ce qui concerne le paiement qui y est prévu si, avant le paiement, les fonds déposés auprès de la société conformément à ce paragraphe sont réclamés par une autre personne : | |||
(a) in any action or proceeding to which the company is a party and in respect of which service of a writ or other process originating that action or proceeding has been made on the company, or |
a) soit dans le cadre dune action ou autre procédure à laquelle la société est partie et à légard de laquelle un bref ou autre acte introductif dinstance lui a été signifié; | |||
(b) in any other action or proceeding pursuant to which an injunction or order made by the court requiring the company not to make payment of that money or make payment thereof to some person other than the depositor has been served on the company, |
b) soit dans le cadre de toute autre action ou procédure en vertu de laquelle une injonction ou ordonnance du tribunal enjoignant à la société de ne pas verser ces fonds ou de les verser à une autre personne que le déposant a été signifiée à la société. | |||
and, in the case of any such claim so made, the money so deposited may be paid to the depositor with the consent of the claimant or to the claimant with the consent of the depositor. |
Dans le cas dune telle réclamation, les fonds ainsi déposés peuvent être versés soit au déposant avec le |
Current to February 11, 2020 |
238 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Deposit Acceptance |
Dépôts | |
Sections 423-424 | Articles 423-424 |
|
consentement du réclamant, soit au réclamant avec le consentement du déposant. |
Guaranteed trust money |
Fonds en fiducie garantie | |||
(3) A company that is a trust company pursuant to subsection 57(2) shall accept deposits only as guaranteed trust money. |
|
(3) La société de fiducie au sens du paragraphe 57(2) ne peut accepter de dépôts quà titre de fonds en fiducie garantie. |
Profit |
|
Gains | ||
(4) Notwithstanding subsection (3), a company that is a trust company pursuant to subsection 57(2) that accepts deposits may retain the interest and profit resulting from the investment thereof in excess of the amount of interest payable to its depositors in respect thereof. |
(4) Par dérogation au paragraphe (3), la société de fiducie au sens du paragraphe 57(2) qui reçoit des dépôts peut conserver la part des intérêts et des gains résultant de leur placement qui excède le montant des intérêts payables aux déposants. |
Assets to be identified |
Éléments dactif à conserver | |||
(5) Where a company that is a trust company pursuant to subsection 57(2) accepts deposits, the company shall identify on its books assets to be held in respect thereof equal to the aggregate amount of the deposits. |
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(5) La société de fiducie au sens du paragraphe 57(2) qui reçoit des dépôts doit indiquer dans ses livres les éléments dactif de valeur égale au total de ces dépôts à détenir à leur égard. |
Execution of trust |
Exécution dune fiducie | |||
(6) A company is not bound to see to the execution of any trust to which any deposit made under the authority of this Act is subject, other than a trust of which the company is a trustee. |
|
(6) La société nest pas tenue de veiller à lexécution dune fiducie à laquelle est assujetti un dépôt effectué sous le régime de la présente loi, sauf quand elle en est fiduciaire. |
Payment when company has notice of trust |
Application du paragraphe (6) | |
(7) Subsection (6) applies regardless of whether the trust is express or arises by the operation of law, and it applies even when the company has notice of the trust if it acts on the order of or under the authority of the holder or holders of the account into which the deposit is made. |
(7) Le paragraphe (6) sapplique que la fiducie soit explicite ou dorigine juridique et sapplique même si la société en a été avisée si elle agit sur lordre ou sous lautorité du ou des titulaires du compte dans lequel le dépôt est effectué. | |
1991, c. 45, s. 423; 2001, c. 9, s. 536. | 1991, ch. 45, art. 423; 2001, ch. 9, art. 536. |
Unclaimed Balances | Soldes non réclamés | |||
Unclaimed balances |
Versement à la Banque du Canada | |||
424 (1) Where | 424 (1) Au plus tard le 31 décembre de chaque année, la société verse à la Banque du Canada le montant du dépôt ou de leffet en cause, plus éventuellement les intérêts calculés conformément aux modalités y afférentes, dans les situations suivantes : | |||
(a) a deposit has been made in Canada that is payable in Canada in Canadian currency and in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor during a period of ten years
(i) in the case of a deposit made for a fixed period, from the day on which the fixed period terminated, and
(ii) in the case of any other deposit, from the day on which the last transaction took place or a statement of account was last requested or acknowledged by the creditor, whichever is later, or |
a) un dépôt a été fait au Canada, est payable au Canada en monnaie canadienne et na fait lobjet, pendant une période de dix ans daucun mouvement opération, demande ou accusé de réception dun état de compte par le déposant , et ce depuis léchéance du terme dans le cas dun dépôt à terme ou, dans le cas de tout autre dépôt, depuis la date de la dernière opération ou, si elle est postérieure, celle de la dernière demande ou du dernier accusé de réception dun état de compte; |
Current to February 11, 2020 |
239 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Unclaimed Balances |
Soldes non réclamés | |
Section 424 | Article 424 |
(b) a cheque, draft or bill of exchange (including any such instrument drawn by one branch of a company on another branch of the company but not including such an instrument issued in payment of a dividend on the capital of a company) payable in Canada in Canadian currency has been issued, certified or accepted by a company in Canada and no payment has been made in respect thereof for a period of ten years after the date of issue, certification, acceptance or maturity, whichever is later, |
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b) un chèque, une traite ou une lettre de change y compris un tel effet tiré par un de ses bureaux sur un autre de ses bureaux mais à lexclusion de leffet émis en paiement dun dividende sur son capital payable au Canada en monnaie canadienne a été émis, visé ou accepté par elle au Canada et aucun paiement na été fait à cet égard pendant une période de dix ans depuis la dernière des dates suivantes : émission, visa, acceptation ou échéance. | ||
the company shall pay to the Bank of Canada not later than December 31 in each year an amount equal to the principal amount of the deposit or instrument, plus interest, if any, calculated in accordance with the terms of the deposit or instrument, and payment accordingly discharges the company from all liability in respect of the deposit or instrument. |
Le versement libère la société de toute responsabilité à légard du dépôt ou de leffet. |
Provision of information |
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Détails à fournir | ||
(2) A company shall, on making a payment under subsection (1), provide the Bank of Canada, for each deposit or instrument in respect of which the payment is made, with the following information current as of the day the payment is made, in so far as it is known to the company: |
(2) Lors du versement, la société est tenue, pour chaque dépôt ou effet, de fournir à la Banque du Canada, dans la mesure où elle en a connaissance, les renseignements mis à jour suivants : |
(a) in the case of a deposit, |
a) dans le cas dun dépôt : | |||
(i) the name of the depositor in whose name the deposit is held, |
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(i) le nom du titulaire du dépôt, | ||
(ii) the recorded address of the depositor, |
(ii) son adresse enregistrée, | |||
(iii) the outstanding amount of the deposit, and |
(iii) le solde du dépôt, | |||
(iv) the branch of the company at which the last transaction took place in respect of the deposit, and the date of that last transaction; and |
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(iv) le bureau de la société dans lequel la dernière opération concernant le dépôt a eu lieu et la date de celle-ci; |
(b) in the case of an instrument, |
b) dans le cas dun effet : | |||
(i) the name of the person to whom or at whose request the instrument was issued, certified or accepted, |
(i) le nom de la personne à qui ou à la demande de qui leffet a été émis, visé ou accepté, | |||
(ii) the recorded address of that person, |
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(ii) son adresse enregistrée, | ||
(iii) the name of the payee of the instrument, |
(iii) le nom du bénéficiaire de leffet, | |||
(iv) the amount and date of the instrument, |
(iv) le montant et la date de leffet, | |||
(v) the name of the place where the instrument was payable, and |
(v) le nom du lieu où leffet était à payer, | |||
(vi) the branch of the company at which the instrument was issued, certified or accepted. |
(vi) le bureau de la société où leffet a été émis, visé ou accepté. |
Current to February 11, 2020 |
240 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Unclaimed Balances |
Soldes non réclamés | |
Sections 424-425 | Articles 424-425 |
Copies of signature cards and signing authorities |
Cartes et délégations de signature | |||
(2.1) A company shall, on written request by the Bank of Canada, provide the Bank of Canada with copies of signature cards and signing authorities relating to any deposit or instrument in respect of which it has made a payment under subsection (1). If it does not have any with respect to a deposit or instrument to which the request relates, it shall so inform the Bank of Canada. |
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(2.1) La société lui fournit, sur demande écrite de la Banque du Canada, des copies des cartes et délégations de signature afférentes pour chaque dépôt ou effet à légard duquel le versement a été fait. Si elle nen possède pas pour un dépôt ou un effet relatif à la demande, elle en informe la Banque du Canada. |
Payment to claimant |
Paiement au réclamant | |||
(3) Subject to section 22 of the Bank of Canada Act, where payment has been made to the Bank of Canada under subsection (1) in respect of any deposit or instrument, and if payment is demanded or the instrument is presented at the Bank of Canada by the person who, but for that section, would be entitled to receive payment of the deposit or instrument, the Bank of Canada is liable to pay, at its agency in the province in which the deposit or instrument was payable, an amount equal to the amount so paid to it together with interest, if interest was payable under the terms of the deposit or instrument, |
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(3) Sous réserve de larticle 22 de la Loi sur la Banque du Canada, quand elle a reçu un versement et si le dépôt lui est réclamé ou leffet lui est présenté par la personne qui, abstraction faite de cet article, aurait droit au paiement correspondant, la Banque du Canada est tenue de lui payer, à son agence de la province dans laquelle le dépôt ou leffet était payable, un montant égal à celui qui lui a été versé, avec les intérêts éventuellement payables, aux taux et selon le mode de calcul fixés par le ministre, pour la période dau plus dix ans comprise entre le jour où elle a reçu le versement et la date du paiement. | ||
(a) for a period not exceeding ten years from the day on which the payment was received by the Bank of Canada until the date of payment to the claimant; and |
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(b) at such rate and computed in such manner as the Minister determines. |
Enforcing liability |
Exécution de lobligation | |||
(4) The liability of the Bank of Canada under subsection (3) may be enforced by action against the Bank of Canada in the court in the province in which the deposit or instrument was payable. |
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(4) Lexécution de lobligation imposée par le paragraphe (3) à la Banque du Canada peut être poursuivie par voie daction intentée contre celle-ci devant un tribunal de la province dans laquelle le dépôt ou leffet était payable. |
Application of subsection (1) |
Application du paragraphe (1) | |||
(5) Subsection (1) applies only in respect of deposits made, and cheques, drafts and bills of exchange issued, certified or accepted after May 31, 1990. |
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(5) Le paragraphe (1) ne sapplique quaux dépôts faits, et aux chèques, traites et lettres de change émis, visés ou acceptés après le 31 mai 1990. |
Application |
Application | |||
(6) This section shall not apply until the day that is eight years after the day on which this section comes into force. |
(6) Le présent article ne sapplique quaprès huit ans suivant son entrée en vigueur. | |||
1991, c. 45, s. 424; 1993, c. 34, s. 127; 2007, c. 6, s. 361. |
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1991, ch. 45, art. 424; 1993, ch. 34, art. 127; 2007, ch. 6, art. 361. |
Notice of unpaid amount |
Avis de non-paiement | |||
425 (1) A company shall mail to each person, in so far as is known to the company,
(a) to whom a deposit referred to in paragraph 424(1)(a) is payable, or |
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425 (1) Dans la mesure où elle en a connaissance, la société expédie par la poste un avis de non-paiement, à leur adresse enregistrée, aux personnes soit auxquelles le dépôt est payable, soit pour lesquelles ou à la demande desquelles leffet a été émis, visé ou accepté. |
Current to February 11, 2020 |
241 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Unclaimed Balances |
Soldes non réclamés | |
Sections 425-425.1 | Articles 425-425.1 |
(b) to whom or at whose request an instrument referred to in paragraph 424(1)(b) was issued, certified or accepted, |
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at the persons recorded address, a notice stating that the deposit or instrument remains unpaid. |
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When notice to be given |
Date dexigibilité de lavis | |||
(2) A notice required by subsection (1) shall be given during the month of January next following the end of the first two year period, and also during the month of January next following the end of the first five year period, |
(2) Lavis doit être donné au cours du mois de janvier qui suit la fin de la première période de deux ans, puis de cinq ans : | |||
(a) in the case of a deposit made for a fixed period, after the fixed period has terminated; |
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a) postérieure à léchéance, dans le cas dun dépôt à terme fixe; | ||
(b) in the case of any other deposit, in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor; and |
b) pendant laquelle il ny a eu aucune opération ni demande ou accusé de réception dun état de compte par le déposant, dans le cas des autres dépôts; | |||
(b) in the case of any other deposit, in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor; and |
c) pendant laquelle leffet est resté impayé, dans le cas dun chèque, dune traite ou dune lettre de change. | |||
(c) in the case of a cheque, draft or bill of exchange, in respect of which the instrument has remained unpaid. |
When notice to be sent |
Date dexigibilité de lavis | |||
(3) The notice must be sent during the month of January next following the end of the first two-year period, during the month of January next following the end of the first five-year period and also during the month of January next following the end of the first nine-year period |
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(3) Lavis doit être envoyé au cours du mois de janvier qui suit la fin de la première période de deux ans, de cinq ans, puis de neuf ans : | ||
(a) [Not in force] |
a) [non en vigueur] | |||
(b) in the case of any other deposit, in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor; and |
b) pendant laquelle il ny a eu aucune opération ni demande ou accusé de réception dun état de compte par le déposant, dans le cas des autres dépôts. | |||
(c) [Not in force] |
c) [non en vigueur] | |||
1991, c. 45, s. 425; 2007, c. 6, s. 362. |
1991, ch. 45, art. 425; 2007, ch. 6, art. 362. |
Accounts | Comptes | |||
Definitions |
Définitions | |||
425.1 The following definitions apply in this section and in sections 431 to 434, 444.1 and 444.3. |
425.1 Les définitions qui suivent sappliquent au présent article et aux articles 431 à 434, 444.1 et 444.3. | |||
member company means a company that is a member institution as defined in section 2 of the Canada Deposit Insurance Corporation Act. (société membre) |
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compte de dépôt de détail Compte de dépôt personnel ouvert avec un dépôt inférieur à 150 000 $ ou au montant supérieur fixé par règlement. (retail deposit account) | ||
personal deposit account means a deposit account in the name of one or more natural persons that is kept by that person or those persons for a purpose other than |
compte de dépôt personnel Compte tenu au nom dune ou de plusieurs personnes physiques à des fins non commerciales. (personal deposit account) |
Current to February 11, 2020 |
242 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Accounts |
Comptes | |
Sections 425.1-429 | Articles 425.1-429 |
that of carrying on business. (compte de dépôt personnel) |
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retail deposit account means a personal deposit account that is opened with a deposit of less than $150,000 or any greater amount that may be prescribed. (compte de dépôt de détail) |
société membre Société qui est une institution membre au sens de larticle 2 de la Loi sur la Société dassurance-dépôts du Canada. (member company) | |||
2001, c. 9, s. 538. |
2001, ch. 9, art. 538. |
Account charges |
Frais de tenue de compte | |||
426 A company shall not, directly or indirectly, charge or receive any sum for the keeping of an account unless the charge is made by express agreement between the company and a customer or by order of a court. |
426 Pour la tenue dun compte au Canada, la société ne peut prélever ou recevoir, directement ou indirectement, que les frais fixés soit par entente expresse entre elle et le client, soit par ordonnance judiciaire. | |||
Disclosure on opening account |
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Déclaration à louverture dun compte | ||
427 (1) A company shall not, after the day that is six months after the coming into force of this Part, open or maintain an interest-bearing deposit account in Canada in the name of any natural person unless the company discloses, in accordance with the regulations, to the person who requests the company to open the account, the rate of interest applicable to the account and how the amount of interest to be paid is to be calculated. |
427 (1) Après lexpiration dun délai de six mois suivant lentrée en vigueur de la présente partie, la société ne peut ouvrir et maintenir, au Canada, un compte de dépôt portant intérêt au nom dune personne physique sans faire savoir à la personne qui a demandé louverture du compte, et conformément aux règlements, le taux dintérêt applicable de même que son mode de calcul. |
Exception |
Exception | |||
(2) Subsection (1) does not apply in respect of an interest-bearing deposit account that is opened with a deposit in excess of $150,000 or any greater amount that may be prescribed. |
|
(2) Le paragraphe (1) ne sapplique pas aux comptes qui sont ouverts avec un dépôt excédant 150 000 $ ou le montant supérieur fixé par règlement. | ||
1991, c. 45, s. 427; 2001, c. 9, s. 539. |
1991, ch. 45, art. 427; 2001, ch. 9, art. 539. |
Disclosure in advertisements |
Divulgation dans la publicité | |||
428 No person shall authorize the publication, issue or appearance of any advertisement in Canada that indicates the rate of interest offered by a company on an interest-bearing deposit or a debt obligation unless the advertisement discloses, in accordance with the regulations, how the amount of interest is to be calculated. |
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428 Nul ne peut autoriser la publication, la diffusion ou la parution au Canada dune annonce publicitaire indiquant le taux dintérêt offert par une société sur les dépôts portant intérêt ou les titres de créance sans quy soit divulgué, en conformité avec les règlements, le mode de calcul des intérêts. |
Disclosure regulations |
Règlements Divulgation | |
429 The Governor in Council may make regulations respecting |
429 Le gouverneur en conseil peut prendre des règlements concernant : | |
(a) the time and place at which and the form and manner in which disclosure is to be made by a company of |
a) les modalités notamment de temps, lieu et forme de la communication : | |
(i) interest rates applicable to debts of the company and deposits with the company, and |
(i) du taux dintérêt applicable aux dettes de la société, notamment les dépôts quelle reçoit, | |
(ii) the manner in which the amount of interest paid is to be calculated; |
(ii) du mode de calcul du montant des intérêts payés; |
Current to February 11, 2020 |
243 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Accounts |
Comptes | |
Sections 429-431 | Articles 429-431 |
(b) the manner in which any charges for the keeping of an account are to be disclosed by a company to its customers and when the disclosure is to be made; and |
b) la date et les modalités dinformation des clients par la société au sujet des frais de tenue de leur compte; | |||
(c) such other matters or things as may be necessary to carry out the requirements of sections 426 to 428. |
|
c) toute autre mesure dapplication des articles 426 à 428. | ||
1991, c. 45, s. 429; 2012, c. 5, s. 168. |
1991, ch. 45, art. 429; 2012, ch. 5, art. 168. | |||
430 [Repealed, 2001, c. 9, s. 540] |
430 [Abrogé, 2001, ch. 9, art. 540] |
Disclosure required on opening a deposit account |
Déclaration à louverture dun compte de dépôt | |||
431 (1) Subject to subsections (2) to (4), a company shall not open a deposit account in the name of a customer unless, at or before the time the account is opened, the company provides in writing to the individual who requests the opening of the account |
431 (1) Sous réserve des paragraphes (2) à (4), la société ne peut ouvrir un compte de dépôt au nom dun client sauf si, avant louverture du compte ou lors de celle-ci, elle fournit par écrit à la personne qui en demande louverture : | |||
(a) a copy of the account agreement with the company; |
a) une copie de lentente relative au compte; | |||
(b) information about all charges applicable to the account; |
b) les renseignements sur tous les frais liés au compte; | |||
(c) information about how the customer will be notified of any increase in those charges and of any new charges applicable to the account; |
c) les renseignements sur la notification de laugmentation des frais ou de lintroduction de nouveaux frais; | |||
(d) information about the companys procedures relating to complaints about the application of any charge applicable to the account; and |
|
d) les renseignements sur la procédure dexamen des réclamations relatives au traitement des frais à payer pour le compte; | ||
(e) such other information as may be prescribed. |
e) tous autres renseignements prévus par règlement. |
Exception |
Exception | |||
(2) If a deposit account is not a personal deposit account and the amount of a charge applicable to the account cannot be established at or before the time the account is opened, the company shall, as soon as is practicable after the amount is established, provide the customer in whose name the account is kept with a notice in writing of the amount of the charge. |
(2) Si le montant des frais liés à un compte de dépôt, autre quun compte de dépôt personnel, ne peut être déterminé avant son ouverture ou lors de celle-ci, la société avise par écrit le titulaire du compte dès que possible après que ce montant a été déterminé. | |||
Exception |
Exception | |||
(3) If a company has a deposit account in the name of a customer and the customer by telephone requests the opening of another deposit account in the name of the customer and the company has not complied with subsection (1) in respect of the opening of that other account, the company shall not open the account unless it provides the customer orally with any information prescribed at or before the time the account is opened. |
|
(3) Dans le cas où le client ayant déjà un compte de dépôt à la société à son nom demande par téléphone louverture dun autre compte de dépôt à son nom, la société ne peut, si elle ne se conforme pas au paragraphe (1) pour cet autre compte, louvrir sans fournir au client verbalement, avant son ouverture ou lors de celle-ci, les renseignements prévus par règlement. | ||
Disclosure in writing |
Communication écrite | |||
(4) If a company opens an account under subsection (3), it shall, not later than seven business days after the |
(4) Dans les sept jours ouvrables suivant louverture dun compte au titre du paragraphe (3), la société fournit par |
Current to February 11, 2020 |
244 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Accounts |
Comptes | |
Sections 431-434 | Articles 431-434 |
account is opened, provide to the customer in writing the agreement and information referred to in subsection (1). |
|
écrit au client lentente et les renseignements visés au paragraphe (1). |
Right to close account |
Droit de fermer le compte | |||
(5) A customer may, within 14 business days after a deposit account is opened under subsection (3), close the account without charge and in such case is entitled to a refund of any charges related to the operation of the account, other than interest charges, incurred while the account was open. |
(5) Le client peut fermer sans frais le compte ouvert au titre du paragraphe (3) dans les quatorze jours ouvrables suivant louverture et peut être remboursé des frais relatifs au fonctionnement du compte autres que ceux relatifs aux intérêts entraînés pendant que le compte était ouvert. | |||
Regulations |
Règlements | |||
(6) For the purposes of subsection (4), the Governor in Council may make regulations prescribing circumstances in which, and the time when, the agreement and information will be deemed to have been provided to the customer. |
|
(6) Pour lapplication du paragraphe (4), le gouverneur en conseil peut prendre des règlements prévoyant dans quels cas lentente et les renseignements sont réputés avoir été fournis au client et quand ils sont réputés lavoir été. | ||
1991, c. 45, s. 431; 1997, c. 15, s. 378; 2001, c. 9, s. 541. |
1991, ch. 45, art. 431; 1997, ch. 15, art. 378; 2001, ch. 9, art. 541. |
Disclosure of charges |
Communication des frais | |||
432 A company shall disclose to its customers and to the public, at the prescribed time and place and in the prescribed form and manner, the charges applicable to deposit accounts with the company and the usual amount, if any, charged by the company for services normally provided by the company to its customers and to the public. |
|
432 La société est tenue de communiquer à ses clients et au public, selon les modalités notamment de temps, lieu et forme réglementaires, les frais liés aux comptes de dépôt et, le cas échéant, les frais habituels liés aux services quelle leur offre normalement. | ||
1991, c. 45, s. 432; 2012, c. 5, s. 169. |
1991, ch. 45, art. 432; 2012, ch. 5, art. 169. |
No increase or new charges without disclosure |
Augmentations interdites | |||
433 (1) A company shall not increase any charge applicable to a personal deposit account with the company or introduce any new charge applicable to a personal deposit account with the company unless the company discloses the charge at the prescribed time and place and in the prescribed form and manner to the customer in whose name the account is kept. |
|
433 (1) La société ne peut augmenter les frais liés aux comptes de dépôt personnels ou en introduire de nouveaux que si elle les communique, selon les modalités notamment de temps, lieu et forme réglementaires, à chaque titulaire dun tel compte. |
Mandatory disclosure |
Communication des frais | |||
(2) With respect to prescribed services in relation to deposit accounts, other than personal deposit accounts, a company shall not increase any charge for any such service in relation to a deposit account with the company or introduce any new charge for any such service in relation to a deposit account with the company unless the company discloses the charge at the prescribed time and place and in the prescribed form and manner to the customer in whose name the account is kept. |
|
(2) La société ne peut augmenter les frais pour les services fixés par règlement liés aux autres comptes de dépôt ou en introduire de nouveaux que si elle les communique, selon les modalités notamment de temps, lieu et forme réglementaires, à chaque titulaire dun tel compte. | ||
1991, c. 45, s. 433; 2012, c. 5, s. 169. |
1991, ch. 45, art. 433; 2012, ch. 5, art. 169. |
Application |
|
Application | ||
434 Sections 431 to 433 apply only in respect of charges applicable to deposit accounts with the company in Canada and services provided by the company in Canada. |
434 Les articles 431 à 433 ne sappliquent quaux frais afférents aux comptes de dépôt auprès dune société au Canada et aux services fournis par celle-ci au Canada. | |||
1991, c. 45, s. 434; 2001, c. 9, s. 542. |
1991, ch. 45, art. 434; 2001, ch. 9, art. 542. |
Current to February 11, 2020 |
245 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Registered Products |
Registered Products | |
Sections 434.1-435 | Articles 434.1-435 |
Registered Products | Produits enregistrés | |||
Disclosure required concerning registered products |
Déclaration concernant un produit enregistré | |||
434.1 (1) Subject to subsection (2), a company shall not open an account that is or forms part of a registered product in the name of a customer, or enter into an agreement with a customer for a prescribed product or service that is or forms part of a registered product, unless the company provides, in the prescribed manner, to the individual requesting the account or the prescribed product or service |
|
434.1 (1) Sous réserve du paragraphe (2), la société ne peut ouvrir un compte qui est un produit enregistré au nom dun client ou en fait partie, ou conclure avec un client une entente relative à un produit ou service réglementaires qui est un produit enregistré ou en fait partie, sauf si elle fournit selon les modalités réglementaires au particulier qui demande louverture du compte ou le produit ou service : | ||
(a) information about all charges applicable to the registered product; |
a) les renseignements sur tous les frais liés au produit enregistré; | |||
(b) information about how the customer will be notified of any increase in those charges and of any new charges applicable to the registered product; |
b) les renseignements sur la notification de laugmentation de ces frais ou de lintroduction de nouveaux frais; | |||
(c) information about the companys procedures relating to complaints about the application of any charge applicable to the registered product; and |
c) les renseignements sur la procédure dexamen des réclamations relatives au traitement des frais à payer pour le produit enregistré; | |||
(d) any other information that may be prescribed. |
d) tout autre renseignement prévu par règlement. |
Regulations |
Règlements | |||
(2) The Governor in Council may make regulations specifying the circumstances under which a company need not provide the information. |
|
(2) Le gouverneur en conseil peut prendre des règlements précisant les circonstances où la société nest pas tenue de fournir les renseignements. | ||
2007, c. 6, s. 363. |
2007, ch. 6, art. 363. |
Definition of registered product |
Définition de produit enregistré | |||
(3) In this section, registered product means a product that is defined to be a registered product by the regulations. |
|
(3) Dans le présent article, produit enregistré sentend au sens des règlements. |
Borrowing Costs |
|
Coût demprunt | ||
Definition of cost of borrowing |
Définition de coût demprunt | |||
435 For the purposes of this section and sections 435.1 to 442, cost of borrowing means, in respect of a loan made by a company, |
435 Pour lapplication du présent article et des articles 435.1 à 442, coût demprunt sentend, à légard dun prêt consenti par la société : | |||
(a) the interest or discount applicable to the loan; |
a) des intérêts ou de lescompte applicables; | |||
(b) any amount charged in connection with the loan that is payable by the borrower to the company; and |
b) des frais payables par lemprunteur à la société; | |||
(c) any charge prescribed to be included in the cost of borrowing. |
c) des frais qui en font partie selon les règlements. | |||
For those purposes, however, cost of borrowing does not include any charge prescribed to be excluded from the cost of borrowing. |
Sont toutefois exclus du coût demprunt les frais qui en sont exclus selon les règlements. | |||
1991, c. 45, s. 435; 1997, c. 15, s. 379; 2001, c. 9, s. 543. |
1991, ch. 45, art. 435; 1997, ch. 15, art. 379; 2001, ch. 9, art. |
Current to February 11, 2020 |
246 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Borrowing Costs |
Coût demprunt | |
Sections 435.1-438 |
Articles 435.1-438 |
Rebate of borrowing costs |
Diminution dune partie du coût demprunt | |||
435.1 (1) Where a company makes a loan in respect of which the disclosure requirements of section 436 apply and the loan is not secured by a mortgage on real property and is required to be repaid either on a fixed future date or by instalments, the company shall, if there is a prepayment of the loan, rebate to the borrower a portion of the charges included in the cost of borrowing in respect of the loan. |
435.1 (1) La société qui consent un prêt à légard duquel larticle 436 sapplique, qui nest pas garanti par une hypothèque immobilière et qui est remboursable à une date fixe ou en plusieurs versements doit, si le prêt est remboursé avant échéance, consentir une remise dune partie des frais compris dans le coût demprunt. | |||
1997, c. 15, s. 379. |
1997, ch. 15, art. 379. | |||
Exception |
Exception | |||
(2) The charges to be rebated do not include the interest or discount applicable to the loan. |
(2) Ne sont pas compris parmi les frais qui doivent faire lobjet dune remise les intérêts et lescompte applicables au prêt. | |||
Regulations |
|
Règlements | ||
(3) The Governor in Council may make regulations governing the rebate of charges under subsection (1). The rebate shall be made in accordance with those regulations. |
(3) Le gouverneur en conseil peut, par règlement, régir les remises prévues au paragraphe (1). Le cas échéant, les remises doivent être consenties conformément aux règlements. | |||
1997, c. 15, s. 379. |
1997, ch. 15, art. 379. |
Disclosing borrowing costs |
Communication du coût demprunt | |||
436 (1) A company shall not make a loan to a natural person that is repayable in Canada unless the cost of borrowing, as calculated and expressed in accordance with section 437, and other prescribed information have been disclosed by the company to the borrower at the prescribed time and place and in the prescribed form and manner. |
|
436 (1) La société ne peut accorder à une personne physique de prêt remboursable au Canada sans lui communiquer, selon les modalités notamment de temps, lieu et forme réglementaires, le coût demprunt, calculé et exprimé en conformité avec larticle 437, et sans lui communiquer les autres renseignements prévus par règlement. | ||
Non-application |
Exceptions | |||
(2) Subsection (1) does not apply in respect of a loan that is of a prescribed class of loans. |
(2) Le paragraphe (1) ne sapplique pas aux catégories de prêts prévues par règlement. | |||
1991, c. 45, s. 436; 1997, c. 15, s. 379; 2012, c. 5, s. 170. |
1991, ch. 45, art. 436; 1997, ch. 15, art. 379; 2012, ch. 5, art. 170. |
Calculating borrowing costs |
|
Calcul du coût demprunt | ||
437 The cost of borrowing shall be calculated, in the prescribed manner, on the basis that all obligations of the borrower are duly fulfilled and shall be expressed as a rate per annum and, in prescribed circumstances, as an amount in dollars and cents. |
437 Le coût demprunt est calculé de la manière réglementaire, comme si lemprunteur respectait scrupuleusement tous ses engagements, et exprimé sous forme dun taux annuel avec indication, dans les circonstances prévues par règlement, dun montanAutres renseignements à déclarer t en dollars et en cents. | |||
Additional disclosure |
Autres renseignements à déclarer | |||
438 (1) Where a company makes a loan in respect of which the disclosure requirements of section 436 are applicable and the loan is required to be repaid either on a fixed future date or by instalments, the company shall disclose to the borrower, in accordance with the regulations, |
438 (1) La société qui consent à une personne physique un prêt visé à larticle 436 remboursable à date fixe ou en plusieurs versements doit lui faire savoir, conformément aux règlements :
a) si elle peut rembourser le prêt avant échéance et, le cas échéant : |
Current to February 11, 2020 |
247 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Borrowing Costs |
Coût demprunt | |
Section 438 |
Article 438 |
(a) whether the borrower has the right to repay the amount borrowed before the maturity of the loan and, if applicable, |
|
|||
(i) any terms and conditions relating to that right, including the particulars of the circumstances in which the borrower may exercise that right, and |
(i) les conditions dexercice de ce droit, y compris des précisions sur les cas où peut se faire cet exercice, | |||
(ii) whether, in the event that the borrower exercises the right, any portion of the cost of borrowing is to be rebated, the manner in which any such rebate is to be calculated or, if a charge or penalty will be imposed on the borrower, the manner in which the charge or penalty is to be calculated; |
(ii) dans le cas dun remboursement anticipé, la partie du coût demprunt qui peut être remise et le mode de calcul applicable, ou les frais ou la pénalité éventuellement imposés et le mode de calcul applicable; | |||
(b) in the event that an amount borrowed is not repaid at maturity or, if applicable, an instalment is not paid on the day the instalment is due to be paid, particulars of the charges or penalties to be paid by the borrower because of the failure to repay or pay in accordance with the contract governing the loan; |
b) les renseignements sur les frais ou pénalités imposés lorsque le prêt nest pas remboursé à léchéance ou un versement nest pas fait à la date fixée; | |||
(c) at the prescribed time and place and in the prescribed form and manner, any prescribed changes respecting the cost of borrowing or the loan agreement; |
c) selon les modalités notamment de temps, lieu et forme réglementaires, les changements dont la nature est prévue par règlement apportés au coût demprunt ou à laccord relatif au prêt; | |||
(d) particulars of any other rights and obligations of the borrower; and |
d) des précisions sur tous autres droits ou obligations de lemprunteur; | |||
(e) any other prescribed information, at the prescribed time and place and in the prescribed form and manner. |
e) selon les modalités notamment de temps, lieu et forme réglementaires, les autres renseignements prévus par règlement. |
Disclosure in credit card applications |
Communication dans les demandes de carte de crédit | |||
(1.1) A company shall, in accordance with the regulations, at the prescribed time and place and in the prescribed form and manner, provide prescribed information in any application forms or related documents that it prepares for the issuance of credit, payment or charge cards and provide prescribed information to any person applying to it for a credit, payment or charge card. |
(1.1) La société fournit, conformément aux règlements et selon les modalités notamment de temps, lieu et forme réglementaires, les renseignements réglementaires dans les formulaires de demande et autres documents relatifs à lémission de cartes de paiement, de crédit ou de débit et les renseignements réglementaires à toute personne qui lui demande une carte de paiement, de crédit ou de débit. | |||
Disclosure re credit cards |
|
Communication concernant les cartes de crédit | ||
(2) Where a company issues or has issued a credit, payment or charge card to a natural person, the company shall, in addition to disclosing the costs of borrowing in respect of any loan obtained through the use of the card, disclose to the person, in accordance with the regulations, |
(2) La société qui délivre ou a délivré une carte de paiement, de crédit ou de débit à une personne physique doit lui communiquer, outre le coût demprunt en ce qui concerne tout emprunt obtenu par elle au moyen de cette carte, linformation suivante, conformément aux règlements : | |||
(a) any charges or penalties described in paragraph (1)(b); |
a) les frais et pénalités visés à lalinéa (1)b); | |||
(b) particulars of the persons rights and obligations; |
b) les droits et obligations de lemprunteur; |
Current to February 11, 2020 |
248 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Borrowing Costs |
Coût demprunt | |
Sections 438-439 |
Articles 438-439 |
(c) any charges for which the person becomes responsible by accepting or using the card; |
|
c) les frais qui lui incombent pour lacceptation ou lutilisation de la carte; | ||
(d) at the prescribed time and place and in the prescribed form and manner, any prescribed changes respecting the cost of borrowing or the loan agreement; and |
d) selon les modalités notamment de temps, lieu et forme réglementaires, les changements dont la nature est prévue par règlement apportés au coût demprunt ou à laccord relatif au prêt; | |||
(e) any other prescribed information, at the prescribed time and place and in the prescribed form and manner. |
e) selon les modalités notamment de temps, lieu et forme réglementaires, les autres renseignements prévus par règlement. |
Additional disclosure re other loans |
Autres formes de prêts | |||
(3) Where a company enters into or has entered into an arrangement, including a line of credit, for the making of a loan in respect of which the disclosure requirements of section 436 apply and the loan is not a loan in respect of which subsection (1) or (2) applies, the company shall, in addition to disclosing the costs of borrowing, disclose to the person to whom the loan is made, in accordance with the regulations, |
|
(3) La société qui conclut ou a conclu un arrangement, y compris louverture dune ligne de crédit, pour loctroi dun prêt à légard duquel larticle 436, mais non les paragraphes (1) et (2) du présent article, sapplique, doit communiquer à lemprunteur, outre le coût demprunt, linformation suivante, conformément aux règlements : | ||
(a) any charges or penalties described in paragraph (1)(b); |
a) les frais ou pénalités visés à lalinéa (1)b); | |||
(b) particulars of the persons rights and obligations; |
b) les droits et obligations de lemprunteur; | |||
(c) any charges for which the person is responsible under the arrangement; |
c) les frais qui incombent à lemprunteur; | |||
(d) at the prescribed time and place and in the prescribed form and manner, any prescribed changes respecting the cost of borrowing under the arrangement; and |
d) selon les modalités notamment de temps, lieu et forme réglementaires, les changements dont la nature est prévue par règlement apportés au coût demprunt; | |||
(e) any other prescribed information, at the prescribed time and place and in the prescribed form and manner. |
e) selon les modalités notamment de temps, lieu et forme réglementaires, les autres renseignements prévus par règlement. | |||
1991, c. 45, s. 438; 1997, c. 15, s. 380; 2012, c. 5, s. 171. |
1991, ch. 45, art. 438; 1997, ch. 15, art. 380; 2012, ch. 5, art. 171. |
Renewal statement |
Renseignements concernant le renouvellement | |||
438.1 If a company makes a loan in respect of which the disclosure requirements of section 436 apply and the loan is secured by a mortgage on real property, the company shall disclose to the borrower, at the prescribed time and place and in the prescribed form and manner, any information that is prescribed respecting the renewal of the loan. |
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438.1 La société doit, dans les cas où elle consent un prêt à légard duquel larticle 436 sapplique et qui est garanti par une hypothèque immobilière, communiquer à lemprunteur, selon les modalités notamment de temps, lieu et forme réglementaires, les renseignements réglementaires concernant le renouvellement du prêt. | ||
1997, c. 15, s. 381; 2012, c. 5, s. 172. |
1997, ch. 15, art. 381; 2012, ch. 5, art. 172. | |||
Disclosure in advertising |
Communication dans la publicité | |||
439 No person shall authorize the publication, issue or appearance of any advertisement in Canada relating to arrangements referred to in subsection 438(3), loans, credit cards, payment cards or charge cards, offered to natural persons by a company, and purporting to disclose |
439 Nul ne peut autoriser la publication, la diffusion ou la parution au Canada dune annonce publicitaire concernant les arrangements visés au paragraphe 438(3), les prêts ou les cartes de paiement, de crédit ou de débit offerts par la société aux personnes physiques et censée |
Current to February 11, 2020 |
249 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Borrowing Costs |
Coût demprunt | |
Sections 439-440 |
Articles 439-440 |
prescribed information about the cost of borrowing or about any other matter unless the advertisement discloses prescribed information at the prescribed time and place and in the prescribed form and manner. |
|
donner des renseignements réglementaires sur le coût demprunt ou sur dautres sujets si cette annonce ne donne pas les renseignements prévus par règlement selon les modalités notamment de temps, lieu et forme réglementaires. | ||
1991, c. 45, s. 439; 1997, c. 15, s. 381; 2012, c. 5, s. 172. |
1991, ch. 45, art. 439; 1997, ch. 15, art. 381; 2012, ch. 5, art. 172. |
Regulations re borrowing costs |
Règlements relatifs au coût demprunt | |||
440 The Governor in Council may make regulations | 440 Le gouverneur en conseil peut, par règlement : | |||
(a) respecting the time and place at which, and the form and manner in which, a company is to disclose to a borrower |
a) régir les modalités notamment de temps, lieu et forme applicables à la communication que doit faire une société à lemprunteur : | |||
(i) the cost of borrowing, |
(i) du coût demprunt, | |||
(ii) any rebate of the cost of borrowing, and |
(ii) de toute remise éventuelle sur celui-ci, | |||
(iii) any other information relating to a loan, arrangement, credit card, payment card or charge card referred to in section 438; |
(iii) de tout autre renseignement relatif aux prêts, arrangements ou cartes de paiement, de crédit ou de débit visés à larticle 438; | |||
(b) respecting the contents of any statement disclosing the cost of borrowing and other information required to be disclosed by a company to a borrower; |
b) régir la teneur de toute déclaration destinée à communiquer le coût demprunt et les autres renseignements que la société est tenue de communiquer; | |||
(c) respecting the manner of calculating the cost of borrowing; |
c) régir le mode de calcul du coût demprunt; | |||
(d) respecting the circumstances under which the cost of borrowing is to be expressed as an amount in dollars and cents; |
d) prévoir les cas où le coût demprunt doit être exprimé sous forme dun montant en dollars et en cents; | |||
(e) specifying any class of loans that are not to be subject to section 435.1, subsection 436(1) or 438(1) or (3) or section 438.1 or 439 or the regulations or any specified provisions of the regulations; |
e) prévoir les catégories de prêts soustraites à lapplication de larticle 435.1, des paragraphes 436(1) ou 438(1) ou (3), des articles 438.1 ou 439 ou de tout ou partie des règlements; | |||
(f) respecting the time and place at which, and the form and manner in which, any rights, obligations, charges or penalties referred to in sections 435.1 to 439 are to be disclosed; |
f) régir les modalités notamment de temps, lieu et forme applicables à la communication des droits, obligations, frais ou pénalités visés aux articles 435.1 à 439; | |||
(g) prohibiting the imposition of any charge or penalty referred to in section 438 or providing that the charge or penalty, if imposed, will not exceed a prescribed amount; |
g) interdire les frais ou pénalités visés à larticle 438 ou en fixer le plafond; | |||
(h) respecting the nature or amount of any charge or penalty referred to in paragraph 438(1)(b), (2)(a) or (3)(a) and the costs of the company that may be included or excluded in the determination of the charge or penalty; |
h) régir la nature ou le montant des frais ou pénalités visés aux alinéas 438(1)b), (2)a) ou (3)a) et du coût supporté par la société qui peuvent être inclus ou exclus du calcul des frais ou pénalités; | |||
(i) respecting the method of calculating the amount of rebate of the cost of borrowing, or the portion of the |
i) régir le mode de calcul de la remise mentionnée au sous-alinéa 438(1)a)(ii); | |||
j) régir les annonces que font les sociétés concernant les arrangements visés au paragraphe 438(3), les prêts ou les cartes de paiement, de crédit ou de débit; |
Current to February 11, 2020 |
250 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Borrowing Costs |
Coût demprunt | |
Sections 440-441 |
Articles 440-441 |
cost of borrowing referred to in subparagraph 438(1)(a)(ii); |
||||
(j) respecting advertisements made by a company regarding arrangements referred to in subsection 438(3), loans, credit cards, payment cards or charge cards; |
||||
(k) respecting the renewal of loans; and |
k) régir le renouvellement des prêts; | |||
(l) respecting such other matters or things as are necessary to carry out the purposes of sections 435.1 to 439. |
l) prévoir toute autre mesure dapplication des articles 435.1 à 439. | |||
1991, c. 45, s. 440; 1997, c. 15, s. 381; 2012, c. 5, s. 173. |
1991, ch. 45, art. 440; 1997, ch. 15, art. 381; 2012, ch. 5, art. 173. | |||
Complaints | Réclamations | |||
Procedures for dealing with complaints |
Procédure dexamen des réclamations | |||
441 (1) A company shall | 441 (1) La société est tenue : | |||
(a) establish procedures for dealing with complaints made by persons having requested or received products or services in Canada from the company; |
a) détablir une procédure dexamen des réclamations de personnes qui lui ont demandé ou qui ont obtenu delle des produits ou services au Canada; | |||
(b) designate an officer or employee of the company to be responsible for implementing those procedures; and |
b) de désigner un préposé dirigeant ou autre agent à la mise en uvre de la procédure; | |||
(c) designate one or more officers or employees of the company to receive and deal with those complaints. |
c) de désigner un ou plusieurs autres préposés dirigeant ou autre agent aux réclamations. | |||
Procedures to be filed with Commissioner |
Dépôt | |||
(2) A company shall file with the Commissioner a copy of its procedures established under paragraph (1)(a). |
(2) La société dépose auprès du commissaire un double de la procédure. | |||
How procedures to be made available |
Mise à la disposition du public de la procédure | |||
(3) A company shall make its procedures established under paragraph (1)(a) available |
|
(3) La société met à la disposition du public la procédure à la fois : | ||
(a) in the form of a brochure, at its branches where products or services are offered in Canada; |
a) dans ses bureaux où sont offerts des produits ou services au Canada, sous forme de brochure; | |||
(b) on its websites through which products or services are offered in Canada; and |
b) sur ceux de ses sites Web où sont offerts des produits ou services au Canada; | |||
(c) in written format to be sent to any person who requests them. |
c) dans un document écrit à envoyer à quiconque lui en fait la demande. |
Information on contacting Agency |
Renseignements | |||
(4) A company shall also make prescribed information on how to contact the Agency available whenever it makes its procedures established under paragraph (1)(a) available under subsection (3). |
|
(4) La société doit accompagner la procédure quelle met à la disposition du public des renseignements fixés par règlement sur la façon de communiquer avec lAgence. | ||
1991, c. 45, s. 441; 1997, c. 15, s. 382; 2001, c. 9, s. 545; 2007, c. 6, s. 364. |
1991, ch. 45, art. 441; 1997, ch. 15, art. 382; 2001, ch. 9, art. 545; 2007, ch. 6, art. 364. |
Current to February 11, 2020 |
251 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
General Business |
Activités générales | |
Complaints |
Réclamations | |
Sections 441.1-442.1 |
Articles 441.1-442.1 |
Obligation to be member of complaints body |
|
Obligation dadhésion | ||
441.1 In any province, if there is no law of the province that makes a company subject to the jurisdiction of an organization that deals with complaints made by persons having requested or received products or services in the province from a company, the company shall be a member of an organization that is not controlled by it and that deals with those complaints that have not been resolved to the satisfaction of the persons under procedures established by companies under paragraph 441(1)(a). |
441.1 Si, dans une province, aucune règle de droit de cette province nassujettit une société à lautorité dune organisation qui examine les réclamations de personnes qui ont demandé ou obtenu des produits ou services de sociétés dans cette province, elle est tenue de devenir membre dune organisation quelle ne contrôle pas et qui examine de telles réclamations lorsque les personnes sont insatisfaites des conclusions de la procédure dexamen établie en application de lalinéa 441(1)a). | |||
2001, c. 9, s. 546. |
2001, ch. 9, art. 546. |
Information on contacting Agency |
Renseignements | |||
442 (1) A company shall, in accordance with the regulations, at the prescribed time and place and in the prescribed form and manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about a deposit account, an arrangement referred to in subsection 438(3), a payment, credit or charge card, the disclosure of or manner of calculating the cost of borrowing in respect of a loan or about any other obligation of the company under a consumer provision. |
|
442 (1) La société est tenue de remettre, conformément aux règlements et selon les modalités notamment de temps, lieu et forme réglementaires, aux personnes qui lui demandent des produits ou services ou à qui elle en fournit, les renseignements fixés par règlement sur la façon de communiquer avec lAgence lorsquelles présentent des réclamations portant sur les comptes de dépôt, les arrangements visés au paragraphe 438(3), les cartes de crédit, de débit ou de paiement, la communication ou le mode de calcul du coût demprunt à légard dun prêt ou sur les autres obligations de la société découlant dune disposition visant les consommateurs. |
Report |
|
Rapport | ||
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting |
(2) Le commissaire prépare un rapport, à inclure dans celui qui est prévu à larticle 34 de la Loi sur lAgence de la consommation en matière financière du Canada, concernant : | |||
(a) procedures for dealing with complaints established by companies pursuant to paragraph 441(1)(a); and |
a) les procédures dexamen des réclamations établies par les sociétés en application de lalinéa 441(1)a); | |||
(b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a company. |
b) le nombre et la nature des réclamations qui ont été présentées à lAgence par des personnes qui ont soit demandé des produits ou services à une société, soit obtenu des produits ou services dune société. | |||
1991, c. 45, s. 442; 1997, c. 15, s. 383; 2001, c. 9, s. 547; 2012, c. 5, s. 174. |
1991, ch. 45, art. 442; 1997, ch. 15, art. 383; 2001, ch. 9, art. 547; 2012, ch. 5, art. 174. |
Miscellaneous |
Divers | |||
Charges for prescribed products or services |
Frais : fourniture de produits et services | |||
442.1 A company shall not, directly or indirectly, charge or receive any sum for the provision of any prescribed products or services unless the charge is made by express agreement between it and a customer or by order of a court. |
|
442.1 La société ne peut prélever ou recevoir, directement ou indirectement, pour la fourniture des produits et services prévus par règlement que les frais fixés soit par entente expresse entre elle et le client, soit par ordonnance judiciaire. | ||
2007, c. 6, s. 365. |
2007, ch. 6, art. 365. |
Current to February 11, 2020 |
252 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Section 443 |
Article 443 |
Prepayment protected |
Remboursement anticipé de prêts | |||
443 (1) A company shall not make a loan to a natural person that is repayable in Canada, the terms of which prohibit prepayment of the money advanced or any instalment thereon before its due date. |
443 (1) Il est interdit à la société de consentir aux personnes physiques des prêts remboursables au Canada qui seraient assortis de linterdiction de faire quelque versement que ce soit, régulièrement ou non, avant la date déchéance. | |||
Minimum balance |
Solde minimum | |||
(2) Except by express agreement between the company and the borrower, the making in Canada of a loan or advance by a company to a borrower shall not be subject to a condition that the borrower maintain a minimum credit balance with the company. |
(2) Sauf entente expresse entre la société et lemprunteur, la société ne peut subordonner loctroi, au Canada, dun prêt ou dune avance au maintien par lemprunteur dun solde créditeur minimum à la société. | |||
Non-application of subsection (1) |
Non-application du paragraphe (1) | |||
(3) Subsection (1) does not apply in respect of a loan | (3) Le paragraphe (1) ne sapplique pas aux prêts : | |||
(a) that is secured by a mortgage on real property; or |
a) garantis par une hypothèque immobilière; | |||
(b) that is made for business purposes and the principal amount of which is more than $100,000 or such other amount as may be prescribed. |
b) consentis à des fins commerciales et dont le capital excède cent mille dollars ou tout autre montant fixé par règlement. |
Government cheques |
|
Absence de frais sur les chèques du gouvernement | ||
(4) A company shall not make a charge | (4) La société ne peut réclamer de frais : | |||
(a) for cashing a cheque or other instrument drawn on the Receiver General or on the Receiver Generals account in the Bank of Canada, in a company or in any other deposit-taking Canadian financial institution incorporated by or under an Act of Parliament; |
a) pour lencaissement dun chèque ou autre effet tiré sur le receveur général ou sur son compte à la Banque du Canada, à une société ou à toute autre institution financière canadienne acceptant des dépôts constituée en personne morale sous le régime dune loi fédérale; | |||
(b) for cashing any other instrument issued as authority for the payment of money out of the Consolidated Revenue Fund; or |
b) pour lencaissement de tout autre effet émis à titre dautorisation de paiement de fonds sur le Trésor public; | |||
(c) in respect of any cheque or other instrument that is |
c) pour les chèques ou autres effets tirés en faveur du receveur général, du gouvernement du Canada ou de lun de ses ministères, ou dun fonctionnaire en sa qualité officielle, et présentés pour dépôt au crédit du receveur général. | |||
(i) drawn in favour of the Receiver General, the Government of Canada or any department thereof or any public officer acting in the capacity of a public officer, and |
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(ii) tendered for deposit to the credit of the Receiver General. |
Deposits of Government of Canada |
Dépôts du gouvernement du Canada | |||
(5) Nothing in subsection (4) precludes any arrangement between the Government of Canada and a company concerning |
|
(5) Le paragraphe (4) ninterdit pas les arrangements entre le gouvernement du Canada et la société concernant : | ||
(a) compensation for services performed by the company for the Government of Canada; or |
a) la rémunération à verser pour services fournis par celle-ci à celui-là; |
Current to February 11, 2020 |
253 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 443-444 |
Articles 443-444 |
(b) interest to be paid on any or all deposits of the Government of Canada with the company. |
b) les intérêts à payer sur tout ou partie des dépôts du gouvernement du Canada auprès de la société. | |||
1991, c. 45, s. 443; 1997, c. 15, s. 384. |
|
1991, ch. 45, art. 443; 1997, ch. 15, art. 384. |
Regulations respecting the holding of funds |
|
Règlements : retenue des fonds | ||
443.1 The Governor in Council may make regulations respecting the maximum period during which a company may hold funds in respect of specified classes of cheques or other instruments that are deposited into an account at a branch or prescribed point of service in Canada before permitting the customer in whose name the account is kept to access the funds. |
443.1 Le gouverneur en conseil peut prendre des règlements concernant la période maximale pendant laquelle la société peut, avant de permettre au titulaire du compte dy avoir accès, retenir les fonds à légard des chèques ou autres effets qui appartiennent à des catégories quil précise et qui sont déposés à tout bureau ou point de service réglementaire au Canada. | |||
2007, c. 6, s. 366. |
2007, ch. 6, art. 366. | |||
Regulations activities |
Règlements : portée des activités de la société | |||
443.2 The Governor in Council may make regulations respecting any matters involving a companys dealings, or its employees or representatives dealings, with customers or the public, including |
443.2 Le gouverneur en conseil peut, par règlement, régir toute question relative aux relations dune société ou à celles de ses employés ou représentants avec les clients ou le public, notamment : | |||
(a) what a company may or may not do in carrying out any of the activities in which it is permitted to engage, or in providing any of the services that it may provide, under section 409 and any ancillary, related or incidental activities or services; and |
a) prévoir ce que la société peut ou ne peut pas faire dans le cadre de lexercice des activités visées à larticle 409 ou de la prestation des services visés à cet article et des activités et services accessoires, liés ou connexes; | |||
(b) the time and place at which and the form and manner in which any of those activities are to be carried out or any of those services are to be provided. |
b) fixer les modalités notamment de temps, lieu et forme dexercice de ces activités ou de prestation de ces services. | |||
2009, c. 2, s. 291; 2012, c. 5, s. 175. |
2009, ch. 2, art. 291; 2012, ch. 5, art. 175. |
Regulations re customer information |
Règlements | |||
444 The Governor in Council may make regulations | 444 Le gouverneur en conseil peut, par règlement : | |||
(a) requiring a company to establish procedures regarding the collection, retention, use and disclosure of any information about its customers or any class of customers; |
a) obliger les sociétés à établir des règles concernant la collecte, la conservation, lusage et la communication des renseignements sur leurs clients ou catégories de clients; | |||
(b) requiring a company to establish procedures for dealing with complaints made by a customer about the collection, retention, use or disclosure of information about the customer; |
b) obliger les sociétés à établir des règles sur la façon de traiter les plaintes dun client quant à la collecte, la conservation, lusage et la communication des renseignements le concernant; | |||
(c) respecting the disclosure by a company of information relating to the procedures referred to in paragraphs (a) and (b); |
c) régir la communication par les sociétés des renseignements sur les règles mentionnées aux alinéas a) et b); | |||
(d) requiring a company to designate the officers and employees of the company who are responsible for |
d) obliger les sociétés à désigner au sein de son personnel les responsables de la mise en uvre des règles mentionnées à lalinéa b), ainsi que de la réception et du traitement des plaintes mentionnées à cet alinéa;
e) obliger les sociétés à faire rapport des plaintes visées à lalinéa b) et des mesures prises à leur égard; | |||
(i) implementing the procedures referred to in paragraph (b), and |
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(ii) receiving and dealing with complaints made by a customer of the company about the collection, |
Current to February 11, 2020 |
254 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 444-444.1 |
Articles 444-444.1 |
(f) defining information, collection and retention for the purposes of paragraphs (a) to (e) and the regulations made under those paragraphs. |
|
f) définir, pour lapplication des alinéas a) à e) et de leurs règlements dapplication, les termes « collecte », « conservation » et « renseignements ». | ||
1991, c. 45, s. 444; 1997, c. 15, s. 385. |
1991, ch. 45, art. 444; 1997, ch. 15, art. 385. |
Notice of branch closure |
Avis de fermeture de bureau | |||
444.1 (1) Subject to regulations made under subsection (5), a member company with a branch in Canada at which it, through a natural person, opens retail deposit accounts and disburses cash to customers, shall give notice in accordance with those regulations before closing that branch or having it cease to carry on either of those activities. |
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444.1 (1) Sous réserve des règlements pris en vertu du paragraphe (5), la société membre qui a au Canada un bureau dans lequel elle ouvre des comptes de dépôt de détail et procède à la sortie de fonds pour ses clients par lintermédiaire dune personne physique donne un préavis conforme à ces règlements de la fermeture du bureau ou de la cessation de lune ou lautre de ces activités. |
Pre-closure meeting |
Réunion | |||
(2) After notice is given but before the branch is closed or ceases to carry on the activities, the Commissioner shall, in prescribed situations, require the company to convene and hold a meeting between representatives of the company, representatives of the Agency and interested parties in the vicinity of the branch in order to exchange views about the closing or cessation of activities, including, but not limited to, alternative service delivery by the company and measures to help the branchs customers adjust to the closing or cessation of activities. |
|
(2) Après la remise du préavis, mais avant la fermeture du bureau ou la cessation dactivités, le commissaire doit, dans les cas prévus par règlement, exiger de la société quelle convoque et tienne une réunion de ses représentants et de ceux de lAgence ainsi que de tout autre intéressé faisant partie de la collectivité locale en vue de discuter de la fermeture ou de la cessation dactivités visée, notamment des autres modes de prestation des services offerts par la société et des mesures visant à aider les clients du bureau à faire face à la fermeture ou à la cessation dactivités. | ||
Meeting details |
Règles de convocation | |||
(3) The Commissioner may establish rules for convening a meeting referred to in subsection (2) and for its conduct. |
(3) Le commissaire peut établir des règles en matière de convocation et de tenue dune réunion visée au paragraphe (2). | |||
Not statutory instruments |
Statut des règles | |||
(4) The Statutory Instruments Act does not apply in respect of rules established under subsection (3). |
(4) La Loi sur les textes réglementaires ne sapplique pas aux règles établies en vertu du paragraphe (3). | |||
Regulations |
Règlements | |||
(5) The Governor in Council may make regulations prescribing |
(5) Le gouverneur en conseil peut, par règlement : | |||
a) désigner le destinataire du préavis mentionné au paragraphe (1) et prévoir les renseignements qui |
Current to February 11, 2020 |
255 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 444.1-444.2 |
Articles 444.1-444.2 |
(a) the time and place at which and the form and manner in which notice shall be given under subsection (1), the persons to whom it shall be given and the information to be included, the time, place, form and manner being permitted to vary according to circumstances specified in the regulations; |
|
doivent y figurer, ainsi que les modalités notamment de temps, lieu et forme de la communication de cet avis, lesquelles peuvent varier dans les cas précisés par règlement; | ||
(b) circumstances in which a member company is not required to give notice under subsection (1), circumstances in which the Commissioner may exempt a member company from the requirement to give notice under that subsection, and circumstances in which the Commissioner may vary the time and place at which and the form and manner in which notice is required to be given under any regulation made under paragraph (a); and |
b) prévoir les cas où la société membre nest pas tenue de donner le préavis visé au paragraphe (1) et les cas où le commissaire peut lexempter de le donner, ainsi que ceux où le commissaire peut modifier les modalités notamment de temps, lieu et forme de la communication de lavis prévues par règlement pris en vertu de lalinéa a); | |||
(c) circumstances in which a meeting may be convened under subsection (2). |
c) prévoir, pour lapplication du paragraphe (2), les cas où une réunion peut être convoquée. | |||
2001, c. 9, s. 548; 2007, c. 6, s. 367; 2012, c. 5, s. 176. |
2001, ch. 9, art. 548; 2007, ch. 6, art. 367; 2012, ch. 5, art. 176. | |||
Public accountability statements |
Déclaration annuelle | |||
444.2 (1) A company with equity of $1 billion or more shall, in accordance with regulations made under subsection (4), annually publish a statement describing the contribution of the company and its prescribed affiliates to the Canadian economy and society. |
444.2 (1) La société dont les capitaux propres sont égaux ou supérieurs à un milliard de dollars publie annuellement une déclaration, établie en conformité avec les règlements pris en vertu du paragraphe (4), faisant état de sa contribution et de celle des entités de son groupe précisées par règlement à léconomie et à la société canadiennes. | |||
Filing |
Dépôt | |||
(2) A company shall, at the prescribed time and place and in the prescribed form and manner, file a copy of the statement with the Commissioner. |
(2) La société dépose auprès du commissaire, selon les modalités notamment de temps, lieu et forme réglementaires, une copie de la déclaration. | |||
Provision of statement to public |
Communication de la déclaration | |||
(3) A company shall, at the prescribed time and place and in the prescribed form and manner, disclose the statement to its customers and to the public. |
(3) La société communique la déclaration à ses clients et au public, selon les modalités notamment de temps, lieu et forme réglementaires. | |||
Regulations |
Règlements | |||
(4) The Governor in Council may make regulations prescribing |
(4) Le gouverneur en conseil peut, par règlement : | |||
(a) the name, contents and form of a statement referred to in subsection (1) and the time within which, the place at which and the manner in which it must be prepared; |
a) établir la désignation de la déclaration visée au paragraphe (1), son contenu et sa forme, ainsi que les modalités notamment de temps, lieu et forme relatives à son élaboration; | |||
(b) affiliates of a company referred to in subsection (1); |
b) préciser les entités visées au paragraphe (1); | |||
(c) the time and place at which and the form and manner in which a statement must be filed under subsection (2); and |
c) fixer les modalités notamment de temps, lieu et forme du dépôt visé au paragraphe (2); | |||
d) fixer les modalités notamment de temps, lieu et forme de la communication de la déclaration visée |
Current to February 11, 2020 |
256 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 444.2-446 |
Articles 444.2-446 |
(d) the time and place at which and the form and manner in which a statement mentioned in subsection (3) is to be disclosed, respectively, to a companys customers and to the public.
2001, c. 9, s. 548; 2012, c. 5, s. 177. |
au paragraphe (3), faite respectivement aux clients et au public.
2001, ch. 9, art. 548; 2012, ch. 5, art. 177. | |||
Regulations re disclosure |
Communication de renseignements | |||
444.3 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by companies or any prescribed class of companies, including regulations respecting |
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444.3 Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi ayant trait à la communication de renseignements, prendre des règlements portant sur la communication de renseignements par les sociétés ou par des catégories réglementaires de celles-ci, notamment des règlements concernant : | ||
(a) the information that must be disclosed, including information relating to |
a) les renseignements à communiquer, ayant trait notamment : | |||
(i) any product or service or prescribed class of products or services offered by them, |
(i) à leurs produits ou services, ou catégories réglementaires de ceux-ci, | |||
(ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, |
(ii) à leurs règles de conduite, procédures et pratiques ayant trait à la fourniture de ces produits ou services, ou catégories réglementaires de ceux-ci, | |||
(iii) anything they are required to do or to refrain from doing under a consumer provision, and |
(iii) aux interdictions ou obligations qui leur sont imposées aux termes dune disposition visant les consommateurs, | |||
(iv) any other matter that may affect their dealings, or their employees or representatives dealings, with customers or the public; |
(iv) à toute autre question en ce qui touche leurs relations ou celles de leurs employés ou représentants avec leurs clients ou le public; | |||
(b) the time and place at which, the form and manner in which and the persons to whom information is to be disclosed; and |
b) les modalités notamment de temps, lieu et forme de la communication, ainsi que le destinataire de celle-ci; | |||
(c) the content and form of any advertisement by companies or any prescribed class of companies relating to any matter referred to in paragraph (a). |
c) le contenu et la forme de la publicité relative aux questions visées à lalinéa a). | |||
2001, c. 9, s. 548; 2007, c. 6, s. 368; 2012, c. 5, s. 178. |
2001, ch. 9, art. 548; 2007, ch. 6, art. 368; 2012, ch. 5, art. 178. | |||
Bank Act security |
Sûreté au titre de la Loi sur les banques | |||
445 A bank that is continued as a company under this Act that, immediately before that continuance, held any outstanding security pursuant to section 426 or 427 of the Bank Act may continue to hold the security for the life of the loan to which the security relates and all the provisions of the Bank Act relating to the security and its enforcement continue to apply to the company as though it were a bank. |
445 La banque prorogée comme société en vertu de la présente loi et qui, avant la prorogation, détenait une sûreté au titre des articles 426 ou 427 de la Loi sur les banques peut continuer de la détenir pendant toute la durée du prêt, et les dispositions de cette loi concernant la sûreté et sa réalisation continuent de sappliquer à la société comme sil sagissait dune banque. | |||
1991, c. 45, ss. 445, 559. |
1991, ch. 45, art. 445 et 559. | |||
Transmission in case of death |
Cession pour cause de décès | |||
446 (1) Where the transmission of a debt owing by a company by reason of a deposit, of property held by a |
446 (1) En cas de transmission pour cause de décès soit dune somme que la société a reçue à titre de dépôt, soit |
Current to February 11, 2020 |
257 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 446-447 |
Articles 446-447 |
company as security or for safe-keeping or of rights with respect to a safety deposit box and property deposited therein takes place because of the death of a person, the delivery to the company of |
de biens quelle détient à titre de garantie ou pour en assurer la garde, soit de droits afférents à un coffre et aux biens qui y sont déposés, la remise à la société : | |||
(a) an affidavit or declaration in writing in form satisfactory to the company signed by or on behalf of a person claiming by virtue of the transmission stating the nature and effect of the transmission, and |
a) dune part, dun affidavit ou dune déclaration écrite, en une forme satisfaisante pour la société, signée par un bénéficiaire de la transmission ou en son nom, et indiquant la nature et leffet de celle-ci; | |||
(b) one of the following documents, namely, |
b) dautre part, dun des documents suivants : | |||
(i) when the claim is based on a will or other testamentary instrument or on a grant of probate thereof or on such a grant and letters testamentary or other document of like import or on a grant of letters of administration or other document of like import, purporting to be issued by any court of authority in Canada or elsewhere, an authenticated copy or certificate thereof under the seal of the court or authority without proof of the authenticity of the seal or other proof, or |
(i) si la réclamation est fondée sur un testament ou autre instrument testamentaire ou sur un acte dhomologation de ceux-ci ou sur un acte et lordonnance de nomination dun exécuteur testamentaire ou autre document de portée semblable ou sur une ordonnance de nomination dun administrateur ou autre document de portée semblable, présentés comme émanant dun tribunal ou dune autorité canadiens ou étrangers, une copie authentique ou un certificat authentique des documents en question sous le sceau du tribunal ou de lautorité, sans autre preuve, notamment de lauthenticité du sceau, | |||
(ii) when the claim is based on a notarial will, an authenticated copy thereof, |
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(ii) si la réclamation est fondée sur un testament notarié, une copie authentique de ce testament, | ||
is sufficient justification and authority for giving effect to the transmission in accordance with the claim. |
constitue une justification et une autorisation suffisantes pour donner effet à la transmission conformément à la réclamation. | |||
Idem |
Idem | |||
(2) Nothing in subsection (1) shall be construed to prevent a company from refusing to give effect to a transmission until there has been delivered to the company such documentary or other evidence of or in connection with the transmission as it may deem requisite. |
(2) Le paragraphe (1) na pas pour effet dinterdire à une société de refuser de donner effet à la transmission tant quelle na pas reçu les preuves écrites ou autres quelle juge nécessaires. | |||
Branch of account with respect to deposits |
Bureau de tenue de compte | |||
447 (1) For the purposes of this Act, the branch of account with respect to a deposit account is |
447 (1) Pour lapplication de la présente loi, le bureau de tenue du compte en matière de compte de dépôt est : | |||
(a) the branch the address or name of which appears on the specimen signature card or other signing authority signed by a depositor with respect to the deposit account or that is designated by agreement between the company and the depositor at the time of opening of the deposit account; or |
a) celui dont le nom et ladresse apparaissent sur un exemplaire de la fiche spécimen de signature ou dune délégation de signature, portant la signature du titulaire du compte ou celui convenu dun commun accord entre la société et le déposant lors de louverture du compte; | |||
(b) if no branch has been identified or agreed on as provided in paragraph (a), the branch that is designated as the branch of account with respect thereto by the company by notice in writing to the depositor. |
b) à défaut dindication du bureau ou de laccord prévus à lalinéa a), celui désigné dans lavis écrit envoyé par la société au déposant. |
Current to February 11, 2020 |
258 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 447-448 |
Articles 447-448 |
Where debt payable |
Lieu du paiement de la dette | |||
(2) The amount of any debt owing by a company by reason of a deposit in a deposit account in the company is payable to the person entitled thereto only at the branch of account and the person entitled thereto is not entitled to demand payment or to be paid at any other branch of the company. |
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(2) La dette de la société résultant du dépôt effectué à un compte de dépôt est payable à la personne qui y a droit, uniquement au bureau de tenue du compte; la personne na le droit ni dexiger ni de recevoir le paiement à un autre bureau. | ||
Idem |
Idem | |||
(3) Notwithstanding subsection (2), a company may permit, either occasionally or as a regular practice, the person to whom the company is indebted by reason of a deposit in a deposit account in the company to withdraw moneys owing by reason of that deposit at a branch of the company other than the branch of account or to draw cheques or other orders for the payment of such moneys at a branch other than the branch of account. |
(3) Nonobstant le paragraphe (2), la société peut autoriser, dune manière occasionnelle ou régulière, le déposant à effectuer des retraits ou à tirer des chèques et autres ordres de paiement à un bureau autre que celui de tenue du compte. | |||
Situs of indebtedness |
Lieu où la dette est contractée | |||
(4) The indebtedness of a company by reason of a deposit in a deposit account in the company shall be deemed for all purposes to be situated at the place where the branch of account is situated. |
(4) La dette de la société résultant du dépôt effectué à un compte de dépôt est réputée avoir été contractée au lieu où est situé le bureau de tenue du compte. | |||
Effect of writ, etc. |
Effet dun bref | |||
448 (1) Subject to subsections (3) and (4), the following documents are binding on property belonging to a person and in the possession of a company, or on money owing to a person by reason of a deposit account in a company, only if the document or a notice of it is served at the branch of the company that has possession of the property or that is the branch of account in respect of the deposit account, as the case may be: |
448 (1) Sous réserve des paragraphes (3) et (4), les documents ci-après ne produisent leurs effets sur les biens appartenant à une personne ou sur les sommes dues en raison dun compte de dépôt que si ceux-ci ou avis de ceux-ci sont signifiés, selon le cas, au bureau de la société ayant la possession des biens ou à celui de tenue du compte : | |||
(a) a writ or process originating a legal proceeding or issued in or pursuant to a legal proceeding; |
a) le bref ou lacte qui introduit une instance ou qui est délivré dans le cadre dune instance; | |||
(b) an order or injunction made by a court; |
b) lordonnance ou linjonction du tribunal; | |||
(c) an instrument purporting to assign, perfect or otherwise dispose of an interest in the property or the deposit account; or |
c) le document ayant pour effet de céder ou de régulariser un droit sur un bien ou sur un compte de dépôt ou den disposer autrement; | |||
(d) an enforcement notice in respect of a support order or support provision. |
d) lavis dexécution relatif à lordonnance alimentaire ou à la disposition alimentaire. | |||
Notices |
Avis | |||
(2) Any notification sent to a company with respect to a customer of the company, other than a document referred to in subsection (1) or (3), constitutes notice to the company and fixes the company with knowledge of its contents only if sent to and received at the branch of the company that is the branch of account of an account held in the name of that customer. |
(2) À lexception des documents visés aux paragraphes (1) ou (3), les avis envoyés à la société concernant un de ses clients ne constituent un avis valable dont le contenu est porté à la connaissance de la société que sils ont été envoyés au bureau où se trouve le compte du client et que si le bureau les a reçus. |
Current to February 11, 2020 |
259 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Section 448 |
Article 448 |
Notices: Minister of National Revenue |
Documents : ministre du Revenu national | |||
(2.1) Despite subsections (1) and (2), a notice, demand, order or other document issued with respect to a customer of a company constitutes notice to the company and fixes the company with knowledge of its contents and, where applicable, is binding on property belonging to the customer and in the possession of the company or on money owing to the customer by reason of an account in the company, if it is sent to the branch of the company referred to in subsection (1) or (2), an office of the company referred to in paragraph (3)(a) or any other office agreed to by the company and the Minister of National Revenue and it relates to |
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(2.1) Toutefois, le simple envoi au bureau visé aux paragraphes (1) ou (2) ou à lalinéa (3)a) ou à celui convenu entre la société et le ministre du Revenu national suffit, pour lapplication de ces paragraphes, dans le cas de tout document avis, demande formelle, ordonnance ou autre délivré à légard du client dans le cadre de lapplication : | ||
(a) the administration of an Act of Parliament by the Minister of National Revenue; or |
a) par ce ministre, dune loi fédérale; | |||
(b) the administration of an Act of the legislature of a province or legislation made by an aboriginal government, where the Minister or the Minister of National Revenue has entered into a tax collection agreement under an Act of Parliament with the government of the province or the aboriginal government. |
b) dune loi dune province ou dun texte législatif dun gouvernement autochtone avec qui ce ministre, ou le ministre, a conclu, sous le régime dune loi fédérale, un accord de perception fiscale. | |||
Exception |
Ordonnance alimentaire et disposition alimentaire | |||
(3) Subsections (1) and (2) do not apply in respect of an enforcement notice in respect of a support order or support provision if |
(3) Les paragraphes (1) et (2) ne sappliquent pas à lavis dexécution relatif à lordonnance alimentaire ou à la disposition alimentaire si les conditions suivantes sont réunies : | |||
(a) the enforcement notice, accompanied by a written statement containing the information required by the regulations, is served at an office of a company designated in accordance with the regulations in respect of a province; and |
a) lavis, accompagné dune déclaration écrite contenant les renseignements réglementaires, est signifié au bureau dune société désigné conformément aux règlements pour une province; | |||
(b) the order or provision can be enforced under the laws of that province. |
b) lordonnance ou la disposition est exécutoire sous le régime du droit de la province. | |||
Time of application |
Effet de la signification | |||
(4) Subsection (3) does not apply in respect of an enforcement notice in respect of a support order or support provision until the second business day following the day of service referred to in that subsection. |
(4) Le paragraphe (3) ne sapplique à lavis dexécution relatif à lordonnance alimentaire ou à la disposition alimentaire quà compter du deuxième jour ouvrable suivant celui de sa signification. | |||
Regulations |
Règlements | |||
(5) The Governor in Council may make regulations |
(5) Le gouverneur en conseil peut, par règlement : | |||
(a) respecting the designation by a company of a place, for the purpose of subsection (3), in any province for the service of enforcement notices in respect of support orders and support provisions; |
a) régir, pour lapplication du paragraphe (3), la désignation, par une société, du lieu de signification, dans la province en cause, des avis dexécution relatifs aux ordonnances alimentaires et aux dispositions alimentaires; | |||
(b) prescribing the manner in which a company shall publicize the locations of designated offices of the company; and |
Current to February 11, 2020 |
260 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 | |||
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART VIII Business and Powers |
PARTIE VIII Activité et pouvoirs | |
Miscellaneous |
Divers | |
Sections 448-449 |
Articles 448-449 |
(c) respecting the information that must accompany enforcement notices in respect of support orders and support provisions. |
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b) prévoir les modalités selon lesquelles la société doit faire connaître au public les lieux où sont situés ses bureaux désignés; | ||
c) régir les renseignements devant accompagner les avis dexécution relatifs aux ordonnances alimentaires et aux dispositions alimentaires. | ||||
Definitions |
Définitions | |||
(6) The following definitions apply in this section. |
(6) Les définitions qui suivent sappliquent au présent article. | |||
designated office means a place designated in accordance with regulations made for the purpose of subsection (3). (bureau désigné) |
avis dexcution Bref de saisie-arrêt ou autre document délivré sous le régime des lois dune province pour lexécution dune ordonnance alimentaire ou dune disposition alimentaire. (enforcement notice) | |||
enforcement notice, in respect of a support order or support provision, means a garnishee summons or other instrument issued under the laws of a province for the enforcement of the support order or support provision. (avis dexécution) |
bureau désigné Bureau désigné conformément aux règlements dapplication du paragraphe (3). (designated office) | |||
support order means an order or judgment or interim order or judgment for family financial support. (ordonnance alimentaire) |
disposition alimentaire Disposition dune entente relative aux aliments. (support provision) | |||
support provision means a provision of an agreement relating to the payment of maintenance or family financial support. (disposition alimentaire) |
ordonnance alimentaire Ordonnance ou autre décision, définitive ou provisoire, en matière alimentaire. (support order) | |||
1991, c. 45, s. 448; 2001, c. 9, s. 549; 2005, c. 19, s. 64. |
1991, ch. 45, art. 448; 2001, ch. 9, art. 549; 2005, ch. 19, art. 64. | |||
PART IX |
PARTIE IX | |||
Investments |
Placements | |||
Definitions and Application |
Définitions et champ dapplication | |||
Definitions |
Définitions | |||
449 (1) The following definitions apply in this Part. |
449 (1) Les définitions qui suivent sappliquent à la présente partie. | |||
business growth fund means Canadian Business Growth Fund (GP) Inc., a corporation incorporated under the Canada Business Corporations Act. (fonds de croissance des entreprises) |
action participante Action dune personne morale qui donne le droit de participer sans limite à ses bénéfices et à la répartition du reliquat de ses biens en cas de dissolution. (participating share) | |||
closed-end fund means an entity whose activities are limited to investing the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities, and whose securities are |
courtier de fonds mutuels Entité dont la principale activité est celle dun agent intermédiaire dans la vente de parts, dactions ou dautres intérêts dun fonds mutuel et dans la perception des paiements y afférents, à condition que : | |||
(a) fixed in number and distributed to the public in an offering under a preliminary prospectus, prospectus, |
a) le produit de la vente soit versé au fonds, déduction faite de la commission de vente et des frais de service; |
Current to February 11, 2020 |
261 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Section 449 |
Article 449 |
short-form prospectus or similar document in accor-dance with the laws of a province or a foreign jurisdiction;
(b) traded on an exchange or an over-the-counter market; and
(c) liquidated on a fixed future termination date, the proceeds of which are allocated to the holders of the securities on a proportional basis. (fonds dinvestissement à capital fixe)
commercial loan means
(a) any loan made or acquired by a company, other than
(i) a loan to a natural person in an amount of two hundred and fifty thousand dollars or less,
(ii) a loan to the Government of Canada, the gov ernment of a province, a municipality, or to any agency thereof, or to the government of a foreign country or any political subdivision thereof, or any agency thereof, or to a prescribed international agency,
(iii) a loan that is guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii),
(iv) a loan that is secured by a mortgage on real property, if
(A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, or
(B) the mortgage is on real property other than residential property and
(I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, and
(II) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, |
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b) le fait que la vente comporte une commission et des frais de service soit porté à la connaissance de lacquéreur avant lachat. (mutual fund distribution entity)
entité admissible Entité dans laquelle la société est autorisée à acquérir un intérêt de groupe financier dans le cadre de larticle 453. (permitted entity)
entité soccupant daffacturage Sentend au sens des règlements. (factoring entity)
entité soccupant de crédit-bail Entité dont lactivité est limitée au crédit-bail de biens meubles et aux activités connexes prévues aux règlements et est conforme à ceux-ci et qui, dans lexercice de son activité au Canada, sabstient :
a) de diriger ses clients, présents ou potentiels, vers des marchands donnés de tels biens;
b) de conclure des contrats de location portant sur des véhicules à moteur dont le poids brut, au sens des règlements, est inférieur à vingt et une tonnes;
c) de conclure avec des personnes physiques des contrats de location portant sur des meubles meublants, au sens des règlements. (financial leasing entity)
entité soccupant de financement Sentend au sens des règlements. (finance entity)
entité soccupant de financement spécial Sentend au sens des règlements. (specialized financing entity)
entité soccupant de fonds mutuels Entité qui réunit les conditions suivantes :
a) son activité se limite au placement de ses fonds de façon à offrir des services de diversification de placements et de gestion professionnelle aux détenteurs de ses titres;
b) ses titres autorisent leurs détenteurs à recevoir, sur demande ou dans le délai spécifié après la demande, un montant calculé sur la base dun droit proportionnel à tout ou partie des capitaux propres de lémetteur, y compris tout fonds distinct ou compte en fiducie. (mutual fund entity)
filiale réglementaire La filiale qui fait partie dune catégorie de filiales prévue par règlement. (prescribed subsidiary) |
Current to February 11, 2020 |
262 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Section 449 |
Article 449 |
(v) a loan that is secured by a mortgage on real property, if
(A) the mortgage is on residential property and
(I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, and
(II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent,
(B) the mortgage is on real property other than residential property and
(I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired,
(II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and
(III) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, or
(C) the loan is one referred to in paragraph 418(2)(d),
(vi) a loan that
(A) consists of a deposit made by the company with another financial institution,
(B) is fully secured by a deposit with any financial institution, including the company,
(C) is fully secured by debt obligations guaranteed by any financial institution other than the company, or |
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fonds de croissance des entreprises Canadian Business Growth Fund (GP) Inc., société constituée en personne morale sous le régime de la Loi canadienne sur les sociétés par actions. (business growth fund)
fonds dinvestissement à capital fixe Entité dont lactivité se limite au placement de ses fonds de façon à offrir des services de diversification de placements et de gestion professionnelle aux détenteurs de ses titres et dont les titres :
a) sont diffusés au public en nombre fixe dans le cadre dune émission faite en vertu dun prospectus provisoire, dun prospectus, dun prospectus simplifié ou dun document de même nature, conformément aux lois dune province ou dun pays étranger;
b) sont négociés en bourse ou sur les marchés hors cote;
c) font lobjet, à une date déchéance fixe, dune liquidation dont le produit est réparti proportionnellement entre les détenteurs de titres. (closed-end fund)
prêt ou emprunt Tout arrangement pour obtenir des fonds ou du crédit, à lexception des placements dans les valeurs mobilières; y sont assimilés notamment lacceptation et lendossement ou autre garantie ainsi que le dépôt, le crédit-bail, le contrat de vente conditionnelle et la convention de rachat. (loan)
prêt commercial Selon le cas :
a) prêt consenti ou acquis par une société, à lexception du prêt :
(i) de deux cent cinquante mille dollars ou moins à une personne physique,
(ii) fait soit au gouvernement du Canada ou dune province ou à une municipalité ou à un de leurs organismes , soit au gouvernement dun pays étranger ou dune de ses subdivisions politiques ou à un de leurs organismes , soit à un organisme international prévu par règlement,
(iii) soit garanti par un gouvernement, une municipalité ou un organisme visé au sous-alinéa (ii), soit pleinement garanti par des titres émis par eux,
(iv) garanti par une hypothèque immobilière :
(A) si la garantie consiste en une hypothèque sur un immeuble résidentiel et que la somme du montant du prêt et du solde à payer de tout autre |
Current to February 11, 2020 |
263 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Section 449 | Article 449 |
(D) is fully secured by a guarantee of a financial institution other than the company, or
(vii) a loan to an entity controlled by the company;
(b) an investment in debt obligations, other than
(i) debt obligations that are
(A) guaranteed by any financial institution other than the company,
(B) fully secured by deposits with any financial institution, including the company, or
(C) fully secured by debt obligations that are guaranteed by any financial institution other than the company,
(ii) debt obligations issued by the Government of Canada, the government of a province, a municipality, or by any agency thereof, or by the government of a foreign country or any political subdivision thereof, or by any agency thereof, or by a prescribed international agency,
(iii) debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subpara-graph (ii),
(iv) debt obligations that are widely distributed, as that expression is defined by the regulations, or
(v) debt obligations of an entity controlled by the company; and
(c) an investment in shares of a body corporate or ownership interests in an unincorporated entity, other than
(i) shares or ownership interests that are widely distributed, as that expression is defined by the regulations,
(ii) shares or ownership interests of an entity controlled by the company, or
(iii) participating shares. (prêt commercial)
factoring entity means a factoring entity as defined in the regulations. (entité soccupant daffacturage)
finance entity means a finance entity as defined in the regulations. (entité soccupant de financement)
financial leasing entity means an entity
|
|
prêt garanti par hypothèque de rang égal ou supérieur sur limmeuble ne dépasse pas quatre-vingts pour cent de la valeur de limmeuble à la date de loctroi ou de lacquisition du prêt,
(B) si la garantie consiste en une hypothèque sur un immeuble autre que résidentiel et que :
(I) dune part, la somme du montant du prêt et du solde à payer de tout autre prêt garanti par hypothèque de rang égal ou supérieur sur limmeuble ne dépasse pas quatre-vingts pour cent de la valeur de limmeuble à la date de loctroi ou de lacquisition du prêt,
(II) dautre part, à la date de loctroi ou de lacquisition du prêt, limmeuble rapporte des revenus suffisants pour couvrir les dépenses annuelles y afférentes, notamment les paiements relatifs à lhypothèque ou à toute autre hypothèque de rang égal ou supérieur,
(v) garanti par une hypothèque immobilière :
(A) si la garantie consiste en une hypothèque sur un immeuble résidentiel et que, dune part, la somme du montant du prêt et du solde à payer de tout autre prêt garanti par hypothèque de rang égal ou supérieur sur limmeuble dépasse quatre-vingts pour cent de la valeur de limmeuble à la date de loctroi ou de lacquisition du prêt et, dautre part, le remboursement de la portion qui excède quatre-vingts pour cent est garanti ou assuré par un organisme gouvernemental ou un assureur privé agréés par le surintendant,
(B) si la garantie consiste en une hypothèque sur un immeuble autre que résidentiel et si les conditions suivantes sont réunies :
(I) la somme du montant du prêt et du solde à payer de tout autre prêt garanti par hypothèque de rang égal ou supérieur sur limmeuble dépasse quatre-vingts pour cent de la valeur de limmeuble à la date de loctroi ou de lacquisition du prêt,
(II) le remboursement de la portion qui excède quatre-vingts pour cent est garanti ou assuré par un organisme gouvernemental ou un assureur privé agréés par le surintendant,
(III) limmeuble rapporte, à la date de loctroi ou de lacquisition du prêt, des revenus suffisants pour couvrir les dépenses annuelles y afférentes, notamment les paiements relatifs
|
Current to February 11, 2020 |
264 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Section 449 | Article 449 |
Current to February 11, 2020 |
265 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Section 449 | Article 449 |
(a) whose activities are limited to the investing of the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities; and |
a) autobus, ambulances, camions utilitaires ou voitures de pompiers; | |||
(b) whose securities entitle their holders to receive, on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of its net assets, including a separate fund or trust account of the entity. (entité soccupant de fonds mutuels) |
b) véhicules motorisés destinés à un usage particulier, qui comportent dimportants éléments spéciaux de nature à les rendre propres à un usage spécifique. (motor vehicle) | |||
participating share means a share of a body corporate that carries the right to participate in the earnings of the body corporate to an unlimited degree and to participate in a distribution of the remaining property of the body corporate on dissolution. (action participante) |
|
|||
permitted entity means an entity in which a company is permitted to acquire a substantial investment under section 453. (entité admissible) |
||||
prescribed subsidiary means a subsidiary that is one of a prescribed class of subsidiaries. (filiale réglementaire) |
||||
specialized financing entity means a specialized financing entity as defined in the regulations. (entité soccupant de financement spécial) |
||||
Members of a companys group |
Membre du groupe dune société | |||
(2) For the purpose of this Part, a member of a companys group is any of the following: |
(2) Pour lapplication de la présente partie, est membre du groupe dune société : | |||
(a) an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company; |
a) toute entité visée aux alinéas 453(1)a) à f) qui contrôle la société; | |||
(b) a subsidiary of the company or of an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company; |
b) une filiale de la société ou de toute entité visée à lun ou lautre des alinéas 453(1)a) à f) qui contrôle la société; | |||
(c) an entity in which the company, or an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company, has a substantial investment; or |
c) une entité dans laquelle la société ou toute entité visée à lun ou lautre des alinéas 453(1)a) à f) qui contrôle la société ont un intérêt de groupe financier; | |||
(d) a prescribed entity in relation to the company. |
d) une entité visée par règlement. | |||
Non-application of Part |
Non-application | |||
(3) This Part does not apply in respect of |
(3) La présente partie ne sapplique pas : | |||
(a) money or other assets held in trust by a company, other than guaranteed trust money and assets held in respect thereof; |
a) à largent ou aux autres éléments dactif détenus par la société à titre de fiduciaire, à lexception des fonds en fiducie garantie et des éléments dactif détenus à leur égard; |
Current to February 11, 2020 |
266 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Definitions and Application |
Définitions et champ dapplication | |
Sections 449-451 | Articles 449-451 |
(b) the holding of a security interest in real property, unless the security interest is prescribed pursuant to paragraph 467(a) to be an interest in real property; or |
b) à la détention dune sûreté sur un bien immeuble, sauf si celle-ci est considérée comme un intérêt immobilier au titre de lalinéa 467a); | |||
(c) the holding of a security interest in securities of an entity. |
c) à la détention dune sûreté sur les titres dune entité. | |||
1991, c. 45, ss. 449, 560; 1993, c. 34, s. 128(F); 1997, c. 15, s. 386; 2001, c. 9, s. 550; 2007, c. 6, s. 369; 2008, c. 28, s. 163; 2018, c. 27, s. 135. |
|
1991, ch. 45, art. 449 et 560; 1993, ch. 34, art. 128(F); 1997, ch. 15, art. 386; 2001, ch. 9, art. 550; 2007, ch. 6, art. 369; 2008, ch. 28, art. 163; 2018, ch. 27, art. 135. | ||
General Constraints on Investments |
Restrictions générales relatives aux placements | |||
Investment standards |
Normes en matière de placements | |||
450 The directors of a company shall establish and the company shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments and loans to avoid undue risk of loss and obtain a reasonable return. |
450 La société est tenue de se conformer aux principes, normes et procédures que son conseil dadministration a le devoir détablir sur le modèle de ceux quune personne prudente mettrait en uvre dans la gestion dun portefeuille de placements et de prêts afin, dune part, déviter des risques de perte indus et, dautre part, dassurer un juste rendement. | |||
1991, c. 45, s. 450; 2001, c. 9, s. 550. |
1991, ch. 45, art. 450; 2001, ch. 9, art. 550. | |||
Limit business growth fund |
Limite : fonds de croissance des entreprises | |||
450.1 (1) The aggregate value of all ownership interests in the business growth fund and the entities that the business growth fund controls that a company and its subsidiaries hold must not exceed $200,000,000. |
450.1 (1) La valeur totale des titres de participation dans le fonds de croissance des entreprises et dans les entités que ce fonds contrôle détenus par la société et ses filiales ne peut excéder deux cents millions de dollars. | |||
Application |
Application | |||
(2) For the purposes of subsection (1), the value of an ownership interest is determined by the amount paid for it at the time of its issuance. |
(2) Pour lapplication du paragraphe (1), la valeur dun titre de participation correspond à la somme payée pour ce titre au moment de son émission. | |||
2018, c. 27, s. 136. |
2018, ch. 27, art. 136. | |||
Restriction on control and substantial investments |
Intérêt de groupe financier et contrôle | |||
451 (1) Subject to subsections (2) to (4.4), no company shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity. |
451 (1) Sous réserve des paragraphes (2) à (4.4), il est interdit à la société dacquérir le contrôle dune entité autre quune entité admissible ou de détenir, dacquérir ou daugmenter un intérêt de groupe financier dans une telle entité. | |||
Exception: indirect investments |
Exception : placements indirects | |||
(2) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of |
(2) La société peut, sous réserve de la partie XI, acquérir le contrôle dune entité autre quune entité admissible, ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité, par lacquisition : | |||
(a) an acquisition of control of an entity referred to in any of paragraphs 453(1)(a) to (j), or of a prescribed entity, that controls or has a substantial investment in the entity; or |
a) soit du contrôle dune entité visée à lun ou lautre des alinéas 453(1)a) à j), ou dune entité visée par règlement, qui contrôle lentité ou a un intérêt de groupe financier dans celle-ci; | |||
(b) an acquisition of shares or ownership interests in the entity by |
b) soit dactions ou de titres de participation de lentité par : |
Current to February 11, 2020 |
267 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
General Constraints on Investments |
Restrictions générales relatives aux placements | |
Section 451 | Article 451 |
(i) an entity referred to in any of paragraphs 453(1)(a) to (j), or a prescribed entity, that is controlled by the company, or |
(i) soit une entité visée à lun ou lautre des alinéas 453(1)a) à j), ou une entité visée par règlement, que contrôle la société, | |||
(ii) an entity controlled by an entity referred to in any of paragraphs 453(1)(a) to (j), or a prescribed entity, that is controlled by the company. |
(ii) soit une entité que contrôle une entité visée à lun ou lautre des alinéas 453(1)a) à j), ou une entité visée par règlement, que contrôle la société. | |||
Exception: temporary investments, realizations and loan workouts |
Exception : placements temporaires | |||
(3) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity by way of |
(3) La société peut, sous réserve de la partie XI, acquérir le contrôle dune entité ou acquérir ou augmenter un intérêt de groupe financier dans une entité : | |||
(a) a temporary investment permitted by section 456; |
|
a) soit en raison dun placement temporaire prévu à larticle 456; | ||
(b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 457; or |
b) soit par lacquisition dactions dune personne morale, ou de titres de participation dune entité non constituée en personne morale, aux termes de larticle 457; | |||
(c) a realization of security permitted by section 458. |
c) soit par la réalisation dune sûreté aux termes de larticle 458. | |||
Exception: specialized financing regulations |
Exception : règlements | |||
(4) A company may, subject to Part XI, acquire control of, or hold, acquire or increase a substantial investment in, an entity other than a permitted entity if it does so in accordance with regulations made under paragraph 452(d) concerning specialized financing. |
(4) La société peut, sous réserve de la partie XI, acquérir le contrôle dune entité autre quune entité admissible ou détenir, acquérir ou augmenter un intérêt de groupe financier dans une telle entité à condition de le faire conformément aux règlements, pris en vertu de lalinéa 452d), relatifs au financement spécial. | |||
Business growth fund |
Fonds de croissance des entreprises | |||
(4.1) Subject to section 450.1, subsections (4.2) to (4.4) and Part XI, a company may hold, acquire or increase a substantial investment in the business growth fund or any entity that the business growth fund controls. |
(4.1) La société peut, sous réserve de larticle 450.1, des paragraphes (4.2) à (4.4) et de la partie XI, détenir, acquérir ou augmenter un intérêt de groupe financier dans le fonds de croissance des entreprises ou dans toute entité que ce fonds contrôle. | |||
For greater certainty |
Précision | |||
(4.2) For greater certainty, a company is prohibited from acquiring control of the business growth fund or any entity that the business growth fund controls. |
(4.2) Il est entendu que la société ne peut acquérir le contrôle du fonds de croissance des entreprises ou de toute entité que ce fonds contrôle. | |||
Prohibition entity |
Interdiction : entités | |||
(4.3) A company is prohibited from holding or acquiring a substantial investment in the business growth fund or any entity that the business growth fund controls if the business growth fund or any entity that the business growth fund controls holds or acquires shares of, or other ownership interests in, any of the following entities, or in any entity that controls any of the following entities: |
(4.3) Il est interdit à la société de détenir ou dacquérir un intérêt de groupe financier dans le fonds de croissance des entreprises ou dans toute entité que ce fonds contrôle si le fonds ou toute entité que ce fonds contrôle détient ou acquière des actions ou dautres titres de participation dans une des entités ci-après ou dans toute entité qui contrôle une des entités suivantes : |
Current to February 11, 2020 |
268 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
General Constraints on Investments |
Restrictions générales relatives aux placements | |
Section 451 | Article 451 |
(a) an entity referred to in any of paragraphs 453(1)(a) to (j); |
a) une entité qui est visée à lun ou lautre des alinéas 453(1)a) à j); | |||
(b) an entity that is primarily engaged in the leasing of motor vehicles in Canada for the purpose of extending credit to a customer or financing a customers acquisition of a motor vehicle; |
b) une entité dont lactivité principale est le crédit-bail de véhicules à moteur au Canada dans le but de faire crédit à un client ou de financer lacquisition dun véhicule à moteur par un client; | |||
(c) an entity that is primarily engaged in providing temporary possession of personal property, including motor vehicles, to customers in Canada for a purpose other than to finance the customers acquisition of the property; |
|
c) une entité dont lactivité principale consiste à accorder provisoirement la possession de biens meubles, notamment des véhicules à moteur, à des clients au Canada dans un but autre que celui de financer lacquisition par ceux-ci de ces biens; | ||
(d) an entity that acts as an insurance broker or agent in Canada; or |
d) une entité qui agit à titre de courtier ou dagent dassurances au Canada; | |||
(e) an entity that is engaged in any prescribed activity. |
e) une entité qui exerce les activités prévues par règlement. | |||
Prohibition capital and loans |
Interdiction : capitaux et prêts | |||
(4.4) A company is prohibited from holding or acquiring a substantial investment in the business growth fund or any entity that the business growth fund controls if the business growth fund or any entity that the business growth fund controls holds shares of, or other ownership interests in, an entity or holds a loan made to an entity and, in respect of that entity and its affiliates, the aggregate value of the following exceeds $100,000,000: |
(4.4) Il est interdit à la société de détenir ou dacquérir un intérêt de groupe financier dans le fonds de croissance des entreprises ou dans toute entité que ce fonds contrôle si ce fonds ou toute entité que ce fonds contrôle détient des actions ou dautres titres de participation dans une entité, ou détient un prêt fait à une entité, et, quà légard de cette entité et des entités de son groupe, le total des éléments ci-après excède cent millions de dollars : | |||
(a) all ownership interests that are held by the company, the companys subsidiaries, the business growth fund or the entities that the business growth fund controls, the value of those ownership interests as determined by the amount paid for them at the time each was first acquired by any of those entities; and |
a) les sommes payées pour lacquisition des titres de participation détenus par la société, par ses affiliés, par le fonds de croissance des entreprises ou par toute entité que ce fonds contrôle au moment où chacun de ces titres a été acquis pour la première fois par lun de ceux-ci; | |||
(b) the outstanding principal of all loans held by the business growth fund or the entities that the business growth fund controls. |
b) le principal impayé de tous les prêts détenus par le fonds de croissance ou par toute entité que ce fonds contrôle. | |||
Exception: uncontrolled event |
Exception : fait involontaire | |||
(5) A company is deemed not to contravene subsection (1) if the company acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the company. |
(5) La société est réputée ne pas contrevenir au paragraphe (1) quand elle acquiert le contrôle dune entité ou acquiert ou augmente un intérêt de groupe financier dans une entité en raison uniquement dun événement dont elle nest pas maître. | |||
Non-application of subsection (2) |
Non-application du paragraphe (2) | |||
(5.1) No company shall, under subsection (2), acquire control of, or acquire or increase a substantial investment in, an entity referred to in paragraph 453(1)(j). |
(5.1) Il est interdit à la société de se prévaloir du paragraphe (2) pour acquérir le contrôle dune entité visée à lalinéa 453(1)j) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité. |
Current to February 11, 2020 |
269 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
General Constraints on Investments |
Restrictions générales relatives aux placements | |
Sections 451-453 |
Articles 451-453 |
Holding |
Détention | |||
(5.2) If a company holds a substantial investment in an entity referred to in paragraph 453(1)(j) that it acquired or increased under subsection (2) before the coming into force of subsection (5.1), the company may continue to hold that substantial investment. |
(5.2) La société qui détient un intérêt de groupe financier dans une entité visée à lalinéa 453(1)j) et qui sest prévalue du paragraphe (2) pour acquérir ou augmenter cet intérêt avant lentrée en vigueur du paragraphe (5.1) peut continuer à le détenir. | |||
Application of other provision |
|
Application dune autre disposition | ||
(6) Despite having acquired control of, or a substantial investment in, an entity under a particular provision of this Part, a company may continue to control the entity or hold the substantial investment in the entity as though it had made the acquisition under another provision of this Part so long as the conditions of that other provision are met. |
(6) Malgré lacquisition par elle du contrôle dune entité ou dun intérêt de groupe financier dans une entité au titre dune disposition de la présente partie, la société peut continuer à contrôler lentité ou à détenir lintérêt de groupe financier comme si elle avait procédé à lacquisition au titre dune autre disposition de la présente partie, pourvu que les conditions prévues par cette autre disposition soient respectées. | |||
Timing of deemed acquisition |
Assimilation | |||
(7) If a company decides to exercise its right under subsection (6), the company is deemed to be acquiring the control or the substantial investment under the other provision. |
(7) Si elle décide dexercer le pouvoir prévu au paragraphe (6), la société est réputée acquérir le contrôle ou lintérêt de groupe financier au titre de lautre disposition. | |||
1991, c. 45, s. 451; 1997, c. 15, s. 387; 2001, c. 9, s. 550; 2007, c. 6, s. 370; 2013, c. 40, s. 167; 2018, c. 27, s. 137. |
1991, ch. 45, art. 451; 1997, ch. 15, art. 387; 2001, ch. 9, art. 550; 2007, ch. 6, art. 370; 2013, ch. 40, art. 167; 2018, ch. 27, art. 137. | |||
Regulations |
Règlements | |||
452 The Governor in Council may make regulations |
452 Le gouverneur en conseil peut, par règlement : | |||
(a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Part; |
a) régir la détermination du montant ou de la valeur des prêts, placements ou intérêts pour lapplication de la présente partie; | |||
(b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a company and its prescribed subsidiaries to or in a person and any persons connected with that person; |
b) régir les prêts et placements, ainsi que le montant total maximal de tous les prêts à une personne et aux autres personnes qui y sont liées que la société et ses filiales réglementaires peuvent consentir ou acquérir et tous les placements quelles peuvent y effectuer; | |||
(c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and |
c) préciser les catégories de personnes qui sont liées à une personne pour lapplication de lalinéa b); | |||
(d) concerning specialized financing for the purposes of subsection 451(4). |
d) régir le financement spécial pour lapplication du paragraphe 451(4). | |||
1991, c. 45, s. 452; 2001, c. 9, s. 550. |
1991, ch. 45, art. 452; 2001, ch. 9, art. 550. | |||
Subsidiaries and Equity Investments |
Filiales et placements | |||
Permitted investments |
Placements autorisés | |||
453 (1) Subject to subsections (4) to (6) and Part XI, a company may acquire control of, or acquire or increase a substantial investment in |
453 (1) Sous réserve des paragraphes (4) à (6) et de la partie XI, la société peut acquérir le contrôle des entités ci-après ou acquérir ou augmenter un intérêt de groupe financier dans ces entités : | |||
(a) a company; |
Current to February 11, 2020 |
270 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
a) une société; | ||||
(b) a bank; |
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b) une banque; | ||
(c) a bank holding company; |
c) une société de portefeuille bancaire; | |||
(d) an association to which the Cooperative Credit Associations Act applies; |
d) une association régie par la Loi sur les associations coopératives de crédit; | |||
(e) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act; |
e) une société dassurances ou une société de secours mutuel constituée ou formée sous le régime de la Loi sur les sociétés dassurances; | |||
(f) an insurance holding company; |
f) une société de portefeuille dassurances; | |||
(g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; |
g) une société de fiducie, de prêt ou dassurances constituée en personne morale ou formée sous le régime dune loi provinciale; | |||
(h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; |
h) une société coopérative de crédit constituée en personne morale ou formée et réglementée sous le régime dune loi provinciale; | |||
(i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or |
i) une entité constituée en personne morale ou formée sous le régime dune loi fédérale ou provinciale et dont lactivité principale est le commerce des valeurs mobilières; | |||
(j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities. |
j) une entité qui est constituée en personne morale ou formée et réglementée autrement que sous le régime dune loi fédérale ou provinciale et qui exerce principalement, à létranger, des activités commerciales qui, au Canada, seraient des opérations bancaires, lactivité dune société coopérative de crédit, des opérations dassurance, la prestation de services fiduciaires ou le commerce de valeurs mobilières. | |||
Permitted investments |
Placements autorisés | |||
(2) Subject to subsections (3) to (6) and Part XI, a company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: |
(2) Sous réserve des paragraphes (3) à (6) et de la partie XI, la société peut acquérir le contrôle dune entité, autre quune entité visée aux alinéas (1)a) à j), dont lactivité commerciale se limite à une ou plusieurs des activités suivantes ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité : | |||
(a) engaging in any financial service activity or in any other activity that a company is permitted to engage in under any of paragraphs 409(2)(b) to (d) or section 410 or 411; |
a) la prestation de services financiers ou toute autre activité quune société est autorisée à exercer dans le cadre de lun ou lautre des alinéas 409(2)b) à d) ou des articles 410 ou 411; | |||
(b) acquiring or holding shares of, or ownership interests in, entities in which a company is permitted under this Part to hold or acquire; |
b) la détention et lacquisition dactions ou dautres titres de participation dans des entités dans lesquelles une société est autorisée, dans le cadre de la présente partie, à acquérir ou détenir de tels actions ou titres; |
Current to February 11, 2020 |
271 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
(c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the company or any member of the companys group: |
c) la prestation de services aux seules entités suivantes à la condition quils soient aussi fournis à la société elle-même ou à un membre de son groupe : | |||
(i) the company, |
(i) la société elle-même, | |||
(ii) any member of the companys group, |
|
(ii) un membre de son groupe, | ||
(iii) any entity that is primarily engaged in the business of providing financial services, |
(iii) une entité dont lactivité commerciale principale consiste en la prestation de services financiers, | |||
(iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or |
(iv) une entité admissible dans laquelle une entité visée au sous-alinéa (iii) a un intérêt de groupe financier, | |||
(v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; |
(v) une personne visée par règlement pourvu que la prestation se fasse selon les modalités éventuellement fixées par règlement; | |||
(d) engaging in any activity that a company is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to |
d) toute activité quune société peut exercer, autre quune activité visée aux alinéas a) ou e), se rapportant : | |||
(i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the company or any member of the companys group, or |
(i) soit à la vente, la promotion, la livraison ou la distribution dun service ou dun produit financiers fournis par la société ou un membre de son groupe, | |||
(ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; |
(ii) soit, si lactivité commerciale de lentité consiste, en grande partie, en une activité visée au sous-alinéa (i), à la vente, la promotion, la livraison ou la distribution dun service ou dun produit financiers dune entité dont lactivité commerciale principale consiste en la prestation de services financiers; | |||
(e) engaging in the activities referred to in the definition closed-end fund, mutual fund distribution entity or mutual fund entity in subsection 449(1); and |
e) les activités visées aux définitions de courtier de fonds mutuels, entité soccupant de fonds mutuels ou fonds dinvestissement à capital fixe au paragraphe 449(1); | |||
(f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed. |
f) les activités prévues par règlement, pourvu quelles sexercent selon les modalités éventuellement fixées par règlement. | |||
Restriction |
Restriction | |||
(3) A company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include |
(3) La société ne peut acquérir le contrôle dune entité dont lactivité commerciale comporte une activité visée aux alinéas (2)a) à e), ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité, si lentité accepte des dépôts dans le cadre de son activité commerciale ou si les activités de lentité comportent : | |||
(a) activities that a company is not permitted to engage in under any of sections 417 and 418; |
a) des activités quune société est empêchée dexercer par les articles 417 et 418; |
Current to February 11, 2020 |
272 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
(b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 409(2)(c); |
|
b) le commerce des valeurs mobilières, sauf dans la mesure où elle peut le faire dans le cadre de lalinéa (2)e) ou une société peut le faire dans le cadre de lalinéa 409(2)c); | ||
(c) acting as an executor, administrator or official guardian or as a guardian, tutor, curator, judicial adviser or committee of a mentally incompetent person; |
c) le fait dagir comme exécuteur testamentaire, administrateur, gardien officiel, gardien, tuteur, curateur ou conseil judiciaire dun incapable; | |||
(d) being a trustee for a trust; |
d) le fait dagir comme fiduciaire; | |||
(e) activities that a company is not permitted to engage in under any regulation made under section 416 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; |
e) dans les cas où lentité exerce les activités dune entité soccupant de financement ou dune autre entité visée par règlement, des activités quune société est empêchée dexercer par tout règlement pris en vertu de larticle 416; | |||
(f) acquiring control of or acquiring or holding a substantial investment in another entity unless |
f) lacquisition du contrôle dune autre entité, ou lacquisition ou la détention dun intérêt de groupe financier dans celle-ci, sauf si : | |||
(i) in the case of an entity that is controlled by the company, the company itself would be permitted under this Part to acquire a substantial investment in the other entity, or |
(i) dans le cas où lentité est contrôlée par la société, lacquisition par la société elle-même dun intérêt de groupe financier dans lautre entité serait permise aux termes de la présente partie, | |||
(ii) in the case of an entity that is not controlled by the company, the company itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (2) or 451(2), paragraph 451(3)(b) or (c) or subsection 451(4); or |
(ii) dans le cas où lentité nest pas contrôlée par la société, lacquisition par la société elle-même dun intérêt de groupe financier dans lautre entité serait permise aux termes des paragraphes (1) ou (2) ou 451(2), des alinéas 451(3)b) ou c) ou du paragraphe 451(4); | |||
(g) any prescribed activity. |
g) des activités prévues par règlement. | |||
Exception |
Exception | |||
(3.1) Despite paragraph (3)(d), a company may acquire control of, or acquire or increase a substantial investment in, any entity that acts as a trustee for a trust if the entity has been permitted under the laws of a province to act as a trustee for a trust and the following conditions are satisfied: |
(3.1) Malgré lalinéa (3)d), la société peut acquérir le contrôle dune entité qui exerce des activités de fiduciaire ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité, si les lois provinciales applicables permettent à lentité dexercer de telles activités et que les conditions suivantes sont réunies : | |||
(a) the entity acts as a trustee only with respect to a closed-end fund or mutual fund entity; and |
a) lentité exerce les activités de fiduciaire uniquement pour un fonds dinvestissement à capital fixe ou pour une entité soccupant de fonds mutuels; | |||
(b) if the entity engages in other business, that business is limited to engaging in one or more of the following: |
b) dans le cas où elle exerce dautres activités commerciales, celles-ci sont limitées aux activités suivantes : | |||
(i) the activities of a mutual fund distribution entity, |
(i) les activités dun courtier de fonds mutuels, | |||
(ii) any activity that a company is permitted to engage in under paragraph 410(1)(d.1), and |
(ii) les services quune société est autorisée à fournir dans le cadre de lalinéa 410(1)d.1), |
Current to February 11, 2020 |
273 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
(iii) the provision of investment counselling services and portfolio management services. |
(iii) la prestation de services de conseil en placement et de gestion de portefeuille. | |||
Control |
Contrôle | |||
(4) Subject to subsection (8) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, |
|
(4) Sous réserve du paragraphe (8) et des règlements, les règles suivantes sappliquent à lacquisition par la société du contrôle des entités suivantes et à lacquisition ou à laugmentation par elle dun intérêt de groupe financier dans ces entités : | ||
(a) an entity referred to in any of paragraphs (1)(a) to (j), unless |
a) sagissant dune entité visée aux alinéas (1)a) à j), elle ne peut le faire que si : | |||
(i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or |
(i) soit elle la contrôle ou en acquiert de la sorte le contrôle, au sens de lalinéa 3(1)d), | |||
(ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment; |
(ii) soit elle est autorisée par règlement pris en vertu de lalinéa 459a) à acquérir ou augmenter lintérêt; | |||
(b) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless |
b) sagissant dune entité dont lactivité commerciale comporte une activité visée à lalinéa (2)a) et qui exerce, dans le cadre de son activité commerciale, des activités dintermédiaire financier comportant des risques importants de crédit ou de marché, notamment une entité soccupant daffacturage, une entité soccupant de crédit-bail ou une entité soccupant de financement, elle ne peut le faire que si : | |||
(i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or |
(i) soit elle la contrôle ou en acquiert de la sorte le contrôle, au sens de lalinéa 3(1)d), | |||
(ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment; or |
(ii) soit elle est autorisée par règlement pris en vertu de lalinéa 459a) à acquérir ou à augmenter lintérêt; | |||
(c) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless |
c) sagissant dune entité dont lactivité commerciale comporte une activité visée à lalinéa (2)b), y compris une entité soccupant de financement spécial, elle ne peut le faire que si : | |||
(i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, |
(i) soit elle la contrôle ou en acquiert de la sorte le contrôle, au sens de lalinéa 3(1)d), | |||
(ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment, or |
(ii) soit elle est autorisée par règlement pris en vertu de lalinéa 459a) à acquérir ou à augmenter lintérêt, | |||
(iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or (b) or an entity that is not a permitted entity. |
(iii) soit, sous réserve des modalités éventuellement fixées par règlement, les activités de lentité ne comportent pas lacquisition ou la détention du contrôle dune entité visée aux alinéas a) ou b) ou dune entité qui nest pas une entité admissible, ni dactions ou de titres de participation dans celle-ci. |
Current to February 11, 2020 |
274 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
Ministers approval |
|
Agrément du ministre | ||
(5) Subject to the regulations, a company may not, without the prior written approval of the Minister, |
(5) Sous réserve des règlements, la société ne peut, sans avoir obtenu au préalable lagrément écrit du ministre : | |||
(a) acquire control of an entity referred to in paragraphs (1)(g) to (i) from a person who is not a member of the companys group; |
a) acquérir auprès dune personne qui nest pas un membre de son groupe le contrôle dune entité visée aux alinéas (1)g) à i); | |||
(b) acquire control of an entity referred to in paragraph (1)(j) or (4)(b), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the companys group: |
b) acquérir, auprès dune entité visée aux alinéas (1)a) à f) qui nest pas un membre de son groupe, le contrôle dune entité visée à lalinéa (1)j) ou (4)b), autre quune entité dont les activités se limitent aux activités quexercent les entités suivantes : | |||
(i) a factoring entity, or |
(i) une entité soccupant daffacturage, | |||
(ii) a financial leasing entity; |
(ii) une entité soccupant de crédit-bail; | |||
(b.1) acquire control of an entity referred to in paragraph (1)(j) if the company is a company with equity of two billion dollars or more and |
b.1) acquérir le contrôle dune entité visée à lalinéa (1)j), si, dune part, la société est dotée de capitaux propres égaux ou supérieurs à deux milliards de dollars et, dautre part : | |||
A + B > C | A + B > C | |||
where |
où : | |||
A is the value of the entitys consolidated assets, as it would have been reported in the entitys annual financial statements if those statements had been prepared immediately before the acquisition, |
A représente la valeur de lactif consolidé de lentité qui aurait été déclarée dans ses états financiers annuels sils avaient été établis à la date précédant lacquisition, | |||
B is the aggregate of the values of the consolidated assets of all other entities referred to in paragraph (1)(j) that the company has acquired control of within the preceding 12 months, as the value for each entity would have been reported in its annual financial statements if those statements had been prepared immediately before the acquisition of control of that entity, and |
B la valeur totale de lactif consolidé des autres entités visées à lalinéa (1)j) dont la société a acquis le contrôle au cours des douze mois précédents qui aurait été déclarée dans leurs états financiers sils avaient été établis à la date précédant lacquisition du contrôle de chacune delles, | |||
C is 10% of the value of the companys consolidated assets, as shown in the companys last annual statement that was prepared before its first acquisition of control of an entity referred to in paragraph (1)(j) within the preceding 12 months; |
C dix pour cent de la valeur de lactif consolidé de la société figurant dans le dernier rapport annuel établi avant la première date où elle a acquis le contrôle dune des entités visées à lalinéa (1)j) au cours des douze mois précédents; | |||
(c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); |
c) acquérir le contrôle dune entité dont lactivité commerciale comporte des activités visées à lalinéa (2)d) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité; | |||
(d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in Cana-da in an activity described in paragraph 410(1)(c); |
d) acquérir le contrôle dune entité qui exerce au Canada des activités visées à lalinéa 410(1)c) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité; | |||
(d.1) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 410(1)(c.1); or |
d.1) acquérir le contrôle dune entité qui exerce des activités visées à lalinéa 410(1)c.1) ou acquérir ou |
Current to February 11, 2020 |
275 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
|
augmenter un intérêt de groupe financier dans une telle entité; | |||
(e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f). |
e) acquérir le contrôle dune entité qui exerce des activités prévues par règlement dapplication de lalinéa (2)f) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité. |
Matters for consideration |
Facteurs à prendre en compte | |||
(5.1) In addition to any matters or conditions provided for in this Act that are relevant to the granting of an approval, the Minister may, in considering whether to grant the approval under paragraph (5)(b.1), take into account all matters that he or she considers relevant in the circumstances, including |
|
(5.1) Outre les facteurs et conditions prévus par la présente loi qui sont liés à loctroi dun agrément, le ministre peut prendre en compte tous les facteurs quil estime pertinents dans les circonstances avant doctroyer son agrément en vertu de lalinéa (5)b.1), notamment : | ||
(a) the stability of the financial system in Canada; and |
a) la stabilité du système financier canadien; | |||
(b) the best interests of the financial system in Cana-da. |
b) lintérêt du système financier canadien. |
Superintendents approval |
Agrément du surintendant | |||
(6) Subject to subsection (7) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (4)(b) and (c) unless the company obtains the approval of the Superintendent. |
|
(6) Sous réserve du paragraphe (7) et des règlements, la société ne peut acquérir le contrôle dune entité visée à lun ou lautre des alinéas (1)g) à j) et (4)b) et c) ni acquérir ou augmenter un intérêt de groupe financier dans une telle entité sans avoir obtenu lagrément du surintendant. |
Exception |
Exception | |||
(7) Subsection (6) does not apply in respect of a particular transaction if |
|
(7) Le paragraphe (6) ne sapplique pas à une opération dans lun ou lautre des cas suivants : | ||
(a) the company is acquiring control of an entity, other than a specialized financing entity, and the only reason for which the company would, but for this subsection, require approval for the acquisition is that the entity carries on activities referred to in paragraph (2)(b); |
a) lentité dont le contrôle est acquis nest pas une entité soccupant de financement spécial et le seul motif pour lequel lagrément serait exigé, neût été le présent paragraphe, est lexercice par elle dune activité visée à lalinéa (2)b); | |||
(b) the company is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; |
b) les activités de lentité dont le contrôle est acquis se limitent aux activités quexercent une entité soccupant daffacturage ou une entité soccupant de crédit-bail; | |||
(c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 454(1); |
c) le ministre a agréé lopération dans le cadre du paragraphe (5) ou il est réputé lavoir agréée dans le cadre du paragraphe 454(1); | |||
(d) subject to subsection (7.1), the company is acquiring control of an entity (referred to in this paragraph as the target entity) referred to in paragraph (4)(b) or (c) and |
d) sous réserve du paragraphe (7.1), lentité dont le contrôle est acquis (appelée « entité cible » au présent alinéa) est une entité visée à lun ou lautre des alinéas (4)b) et c) et : | |||
A/B < C |
A/B < C | |||
where |
où : |
Current to February 11, 2020 |
276 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
A is the aggregate of the values, as they would have been reported in the companys annual financial statements if those statements were prepared on the day of the acquisition of control of the target entity, of |
A représente la somme de la valeur des éléments ci-après qui aurait été déclarée dans les états financiers annuels de la société sils avaient été établis à la date dacquisition du contrôle de lentité cible : | |||
(i) the target entitys consolidated assets,
(ii) the assets of the company and of any subsidiary of the company that were acquired, at any time within the 12 months preceding the acquisition of control of the target entity, from any entity that, at that time, held any of the assets referred to in subparagraph (i), and |
|
(i) lactif consolidé de lentité cible,
(ii) les actifs de la société et de toute filiale de celle-ci qui ont été acquis, au cours des douze mois précédant lacquisition du contrôle de lentité cible, auprès dune entité qui, au même moment, détenait des actifs visés au sous-alinéa (i), | ||
(iii) the consolidated assets of any entity referred to in paragraph (4)(b) or (c) the control of which is acquired by the company at the same time as the acquisition of control of the target entity or within the 12 months preceding the acquisition of control of the target entity if, at any time within those 12 months, that entity and the target entity were affiliates excluding any assets referred to in subparagraph (i) or (ii) and the consolidated assets of an entity in respect of which no approval of the Superintendent is required under any of paragraphs (a) to (c), |
|
(iii) lactif consolidé de toute entité visée à lun ou lautre des alinéas (4)b) et c) dont le contrôle est acquis par la société en même temps quest acquis le contrôle de lentité cible, ou au cours des douze mois précédant lacquisition du contrôle de lentité cible, si, au cours de cette période, lentité était du même groupe que lentité cible, à lexception des actifs visés aux sous-alinéas (i) ou (ii) et de lactif consolidé dune entité à légard de laquelle la société na pas à obtenir lagrément du surintendant aux termes de lun ou lautre des alinéas a) à c), | ||
B is the value of the companys consolidated assets, as shown in its last annual statement prepared before the acquisition of control of the target entity, and |
B la valeur de lactif consolidé de la société figurant dans le dernier rapport annuel établi avant la date dacquisition du contrôle de lentité cible, | |||
C is |
C est égal : | |||
(i) 0.01, in the case of a company with equity of 12 billion dollars or more, or |
(i) à 0,01, dans le cas où la société est dotée de capitaux propres égaux ou supérieurs à douze milliards de dollars, | |||
(ii) 0.02, in the case of any other company; or |
(ii) à 0,02, dans les autres cas; | |||
(e) the company is acquiring or increasing a substantial investment in an entity (referred to in this paragraph as the target entity) without acquiring control of it, and |
e) lacquisition ou laugmentation dun intérêt de groupe financier dans lentité (appelée « entité cible » au présent alinéa), sans acquérir le contrôle de celle-ci, et : | |||
A/B < C | A/B < C | |||
where |
où : | |||
A is the aggregate of the values, as they would have been reported in the companys annual financial statements if those statements were prepared on the day of the acquisition or increase of the substantial investment in the target entity, of |
A représente la somme de la valeur des éléments ci-après qui aurait été déclarée dans les états financiers annuels de la société sils avaient été établis à la date dacquisition ou daugmentation de lintérêt de groupe financier dans lentité cible : | |||
(i) the shares of, or other ownership interests in, the target entity that the company or a subsidiary of the company is acquiring in the transaction that results in the acquisition or increase of a substantial investment in the target entity, and the shares of, or other ownership |
(i) les actions ou les autres titres de participation de lentité cible acquis par la société ou sa filiale, et les actions ou les autres titres de participation de lentité cible détenus par une entité dont le contrôle est acquis par la société, dans le cadre de lopération qui résulte |
Current to February 11, 2020 |
277 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Section 453 |
Article 453 |
interests in, the target entity that are held by an entity the control of which the company is acquiring in the transaction that results in the acquisition or increase of a substantial investment in the target entity, |
en lacquisition ou laugmentation de lintérêt de groupe financier dans lentité cible, | |||
(ii) the shares of, or other ownership interests in, the target entity that are held by the company or a subsidiary of the company and that were acquired by the company or the subsidiary within the 12 months preceding the transaction referred to in subparagraph (i), and |
|
(ii) les actions ou les autres titres de participation de lentité cible détenus par la société ou sa filiale et acquis par la société ou sa filiale au cours des douze mois précédant lopération visée au sous-alinéa (i), | ||
(iii) the shares of, or other ownership interests in, the target entity that are held by a subsidiary of the company the control of which was acquired by the company within the 12 months preceding the transaction referred to in sub-paragraph (i), excluding any shares or other ownership interests referred to in subpara-graph (ii), |
(iii) les actions ou les autres titres de participation de lentité cible détenus par une filiale de la société dont le contrôle a été acquis par celle-ci au cours des douze mois précédant lopération visée au sous-alinéa (i), à lexception des actions ou des autres titres de participation visés au sous-alinéa (ii), | |||
B is the value of the companys consolidated assets, as shown in its last annual statement prepared before the transaction that results in the acquisition or increase of the substantial investment in the target entity, and |
B la valeur de lactif consolidé de la société figurant dans le dernier rapport annuel établi avant la date de lopération qui résulte en lacquisition ou laugmentation de lintérêt de groupe financier dans lentité cible, | |||
C is |
|
C est égal : | ||
(i) 0.005, in the case of a company with equity of 12 billion dollars or more, or |
(i) à 0,005, dans le cas où la société est dotée de capitaux propres égaux ou supérieurs à douze milliards de dollars, | |||
(ii) 0.01, in the case of any other company. |
(ii) à 0,01, dans les autres cas. | |||
No exception for deemed acquisition |
Aucune exception pour les acquisitions réputées | |||
(7.1) The exception in paragraph (7)(d) does not apply with respect to a deemed acquisition of control under subsection 451(7). |
(7.1) Lexception prévue à lalinéa (7)d) ne sapplique pas à légard de lacquisition du contrôle réputée qui est visée au paragraphe 451(7). | |||
Control not required |
Contrôle non requis | |||
(8) A company need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the company to control the entity. |
(8) Il nest pas nécessaire que la société contrôle lentité visée à lalinéa (1)j) ou toute autre entité constituée à létranger si les lois ou les pratiques commerciales du pays sous le régime des lois duquel lentité a été constituée lui interdisent den détenir le contrôle. | |||
Prohibition on giving up control in fact |
Abandon du contrôle de fait | |||
(9) A company that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity. |
(9) La société qui contrôle une entité en vertu du paragraphe (4) ne peut, sans lagrément écrit du ministre, se départir du contrôle au sens de lalinéa 3(1)d) tout en continuant de la contrôler dune autre façon. |
Current to February 11, 2020 |
278 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Sections 453-455 |
Articles 453-455 |
Giving up control |
Aliénation dactions | |||
(10) A company that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if |
(10) La société qui contrôle une entité en vertu du paragraphe (4) peut, avec lagrément préalable du surintendant donné par écrit, se départir du contrôle tout en maintenant dans celle-ci un intérêt de groupe financier si : | |||
(a) the company is permitted to do so by regulations made under paragraph 459(c); or |
|
a) soit elle-même y est autorisée par règlement pris en vertu de lalinéa 459c); | ||
(b) the entity meets the conditions referred to in sub-paragraph (4)(c)(iii). |
b) soit lentité remplit les conditions visées au sous-alinéa (4)c)(iii). | |||
Subsections do not apply |
Présomption dagrément | |||
(11) If a company controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the company of its substantial investment in the entity so long as the company continues to control the entity. |
(11) Si la société contrôle, au sens des alinéas 3(1)a), b) ou c), une entité, les paragraphes (5) et (6) ne sappliquent pas aux augmentations postérieures par la société de son intérêt de groupe financier dans lentité tant quelle continue de la contrôler. | |||
1991, c. 45, s. 453; 1997, c. 15, s. 388; 1999, c. 28, s. 141; 2001, c. 9, s. 550; 2007, c. 6, s. 371; 2012, c. 5, s. 179; 2018, c. 27, s. 130. |
1991, ch. 45, art. 453; 1997, ch. 15, art. 388; 1999, ch. 28, art. 141; 2001, ch. 9, art. 550; 2007, ch. 6, art. 371; 2012, ch. 5, art. 179; 2018, ch. 27, art. 130. | |||
Approval for indirect investments |
Agrément des intérêts indirects | |||
454 (1) If a company obtains the approval of the Minister under subsection 453(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 453(5) or the Superintendent under subsection 453(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the company is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase. |
454 (1) La société qui reçoit lagrément du ministre dans le cadre du paragraphe 453(5) pour lacquisition du contrôle dune entité ou pour lacquisition ou laugmentation dun intérêt de groupe financier dans une entité est réputée avoir reçu cet agrément pour lacquisition du contrôle ou lacquisition ou laugmentation dun intérêt de groupe financier quelle se trouve de ce fait à faire indirectement dans une autre entité pour laquelle lagrément du ministre ou du surintendant serait requis dans le cadre des paragraphes 453(5) ou (6), à la condition davoir informé le ministre par écrit de cette acquisition ou augmentation indirecte avant dobtenir lagrément. | |||
Approval for indirect investments |
Agrément des intérêts indirects | |||
(2) If a company obtains the approval of the Superintendent under subsection 453(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the company is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase. |
(2) La société qui reçoit lagrément du surintendant dans le cadre du paragraphe 453(6) pour lacquisition du contrôle dune entité ou lacquisition ou laugmentation dun intérêt de groupe financier dans une entité est réputée avoir reçu cet agrément pour lacquisition du contrôle ou lacquisition ou laugmentation dun intérêt de groupe financier quelle se trouve de ce fait à faire indirectement dans une autre entité pour laquelle lagrément du surintendant serait requis dans le cadre du paragraphe 453(6), à la condition davoir informé le surintendant par écrit de cette acquisition ou augmentation indirecte avant dobtenir lagrément. | |||
1991, c. 45, s. 454; 2001, c. 9, s. 550. |
1991, ch. 45, art. 454; 2001, ch. 9, art. 550. | |||
Undertakings |
Engagement | |||
455 (1) If a company controls a permitted entity, other than an entity referred to in any of paragraphs 453(1)(a) |
455 (1) La société qui contrôle une entité admissible, autre quune entité visée aux alinéas 453(1)a) à f), prend |
Current to February 11, 2020 |
279 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Subsidiaries and Equity Investments |
Filiales et placements | |
Sections 455-456 |
Articles 455-456 |
to (f), the company shall provide the Superintendent with any undertakings that the Superintendent may require regarding |
auprès du surintendant les engagements que celui-ci peut exiger relativement : | |||
(a) the activities of the entity; and |
a) à lactivité de lentité; | |||
(b) access to information about the entity. |
b) à laccès à linformation la concernant. | |||
Undertakings |
|
Engagement | ||
(2) If a company acquires control of an entity referred to in any of paragraphs 453(1)(g) to (j), the company shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require. |
(2) La société qui acquiert le contrôle dune entité visée à lun ou lautre des alinéas 453(1)g) à j) prend auprès du surintendant les engagements relatifs à lentité quil peut exiger. | |||
Agreements with other jurisdictions |
Entente | |||
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of an entity referred to in any of paragraphs 453(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate. |
(3) Le surintendant peut conclure une entente avec la personne ou lorganisme chargé de la supervision des entités visées aux alinéas 453(1)g) à j) dans chaque province ou autre territoire concernant toute question visée aux alinéas (1)a) et b) ou toute autre question quil juge utile. | |||
Access to records |
Droit daccès | |||
(4) Despite any other provision of this Part, a company shall not control a permitted entity, other than an entity referred to in any of paragraphs 453(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the company obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. |
(4) Par dérogation à toute autre disposition de la présente partie, la société ne peut contrôler une entité admissible, autre quune entité visée aux alinéas 453(1)a) à f), que si elle obtient de celle-ci, durant lacquisition même ou dans un délai acceptable après celle-ci, lengagement de donner au surintendant un accès suffisant à ses livres. | |||
1991, c. 45, s. 455; 2001, c. 9, s. 550. |
1991, ch. 45, art. 455; 2001, ch. 9, art. 550. | |||
Exceptions and Exclusions | Exceptions et exclusions | |||
Temporary investments in entity |
Placements provisoires dans des entités | |||
456 (1) Subject to subsection (4), a company may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity. |
456 (1) Sous réserve du paragraphe (4), la société peut, au moyen dun placement provisoire, acquérir le contrôle dune entité ou acquérir ou augmenter un intérêt de groupe financier dans une entité; elle doit toutefois prendre les mesures nécessaires pour assurer lélimination du contrôle ou de cet intérêt dans les deux ans qui suivent lacquisition du contrôle ou lacquisition ou laugmentation de lintérêt, selon le cas, ou tout autre délai agréé ou spécifié par le surintendant. | |||
Transitional |
Disposition transitoire | |||
(2) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company subsequently increases that substantial investment by way of a temporary investment, the company |
(2) Par dérogation au paragraphe (1), la société qui existait le 1er juin 1992 et détenait le 27 septembre 1990 un intérêt dans une entité constituant un intérêt de groupe financier au sens de larticle 10 et qui augmente par la suite cet intérêt au moyen dun placement provisoire doit prendre les mesures nécessaires pour |
Current to February 11, 2020 |
280 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Exceptions and Exclusions |
Exceptions et exclusions | |
Sections 456-457 | Articles 456-457 |
shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990. |
annuler laugmentation dans les deux ans qui suivent cette date ou tout autre délai agréé ou spécifié par le surintendant. | |||
Extension |
Prolongation | |||
(3) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary. |
|
(3) Le surintendant peut, sur demande, accorder à une société une ou plusieurs prolongations des délais prévus aux paragraphes (1) ou (2) de la durée et aux conditions quil estime indiquées. | ||
Temporary investment |
Placement provisoire | |||
(4) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister would have been required under subsection 453(5) if the company had acquired the control, or acquired or increased the substantial investment, under section 453, the company must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, |
(4) La société qui, au moyen dun placement provisoire, acquiert le contrôle ou acquiert ou augmente un intérêt de groupe financier dans un cas où lagrément du ministre aurait été requis dans le cadre du paragraphe 453(5) si le contrôle avait été acquis ou lintérêt de groupe financier acquis ou augmenté au titre de larticle 453 doit, dans les quatre-vingt-dix jours qui suivent lacquisition : | |||
(a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or |
a) soit demander lagrément du ministre pour continuer à détenir le contrôle ou lintérêt pour la période précisée par le ministre ou pour une période indéterminée, aux conditions que celui-ci estime appropriées; | |||
(b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity. |
b) soit prendre les mesures nécessaires pour éliminer le contrôle ou ne plus détenir un intérêt de groupe financier à lexpiration des quatre-vingt-dix jours. | |||
Indeterminate extension |
Placement provisoire | |||
(5) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent would have been required under subsection 453(6) if the company had acquired the control, or acquired or increased the substantial investment, under section 453, the Superintendent may, on application, permit the company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers appropriate. |
(5) Si la société, au moyen dun placement provisoire, acquiert le contrôle ou acquiert ou augmente un intérêt de groupe financier dans un cas où lagrément du surintendant aurait été requis dans le cadre du paragraphe 453(6) si le contrôle avait été acquis ou lintérêt de groupe financier acquis ou augmenté au titre de larticle 453, le surintendant peut, sur demande, autoriser la société à conserver le contrôle de lentité ou lintérêt de groupe financier pour une période indéterminée, aux conditions quil estime appropriées. | |||
1991, c. 45, s. 456; 2001, c. 9, s. 550; 2007, c. 6, s. 372. |
1991, ch. 45, art. 456; 2001, ch. 9, art. 550; 2007, ch. 6, art. 372. | |||
Loan workouts |
Défaut | |||
457 (1) Despite anything in this Part, if a company or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the company, |
457 (1) Par dérogation aux autres dispositions de la présente partie, lorsquelle ou une de ses filiales ont consenti un prêt à une entité et que sest produit un |
Current to February 11, 2020 |
281 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Exceptions and Exclusions |
Exceptions et exclusions | |
Section 457 | Article 457 |
or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the company may acquire |
défaut prévu dans laccord conclu entre la société ou sa filiale et lentité relativement au prêt et aux autres documents en fixant les modalités, la société peut acquérir, selon le cas : | |||
(a) if the entity is a body corporate, all or any of the shares of the body corporate; |
|
a) si lentité est une personne morale, tout ou partie de ses actions; | ||
(b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; |
b) si elle est une entité non constituée en personne morale, tout ou partie de ses titres de participation; | |||
(c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; |
c) tout ou partie des actions ou des titres de participation des entités qui sont du même groupe au sens de larticle 2 que lentité en question; | |||
(d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates; or |
d) tout ou partie des actions de la personne morale dont lactivité principale est de détenir des actions ou des titres de participation de lentité ou des entités de son groupe au sens de larticle 2 , ou des éléments dactif acquis de ces dernières; | |||
(e) all or any of the ownership interests in any entity that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates. |
e) tout ou partie des titres de participation dune entité dont lactivité principale consiste à détenir des actions ou des titres de participation de lentité ou des entités de son groupe ou des éléments dactif acquis de ces dernières. | |||
Obligation of company |
Obligation déliminer lintérêt | |||
(2) If a company acquires shares or ownership interests in an entity under subsection (1), the company shall, within five years after acquiring them do all things necessary to ensure that the company does not control the entity or have a substantial investment in the entity. |
(2) La société doit cependant prendre les mesures nécessaires pour assurer lélimination du contrôle ou de tout intérêt de groupe financier dans les entités visées au paragraphe (1) dans les cinq ans suivant lacquisition des actions ou des titres de participation. | |||
Transitional |
Disposition transitoire | |||
(3) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of an investment made under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990. |
(3) Par dérogation au paragraphe (1), la société qui existait le 1er juin 1992 et détenait le 27 septembre 1990 un intérêt dans une entité constituant un intérêt de groupe financier au sens de larticle 10 et qui augmente par la suite cet intérêt au moyen dun placement visé au paragraphe (1) doit prendre les mesures nécessaires pour annuler laugmentation dans les cinq ans suivant cette date. | |||
Extension |
Prolongation | |||
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary. |
(4) Le surintendant peut, sur demande, accorder à une société une ou plusieurs prolongations du délai prévu aux paragraphes (2) ou (3) de la durée et aux conditions quil estime indiquées. |
Current to February 11, 2020 |
282 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Exceptions and Exclusions |
Exceptions et exclusions | |
Sections 457-458 | Articles 457-458 |
Exception entities controlled by foreign governments |
Exception : entités contrôlées par un gouvernement étranger | |||
(5) Despite anything in this Part, if a company has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the company and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the company may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government. |
|
(5) Par dérogation aux autres dispositions de la présente partie, lorsquelle a consenti un prêt à un gouvernement dun pays étranger ou à une entité contrôlée par celui-ci, ou quelle détient un titre de créance dun tel gouvernement ou dune telle entité, et que sest produit un défaut prévu dans laccord conclu entre eux relativement au prêt ou au titre de créance et aux autres documents en fixant les modalités, la société peut acquérir tout ou partie des actions ou titres de participation de lentité ou de toute autre entité désignée par ce gouvernement si lacquisition fait partie dun programme de réaménagement de la dette publique du même gouvernement. | ||
Time for holding shares |
Période de détention | |||
(6) If a company acquires any shares or ownership interests under subsection (5), the company may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify. |
(6) La société peut, conformément aux modalités que le surintendant estime indiquées, détenir les actions ou titres de participation acquis en vertu du paragraphe (5) pendant une période indéterminée ou la période précisée par le surintendant. | |||
Exception |
Exception | |||
(7) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 453, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4). |
(7) La société qui, dans le cadre du paragraphe (1), acquiert le contrôle dune entité quelle serait par ailleurs autorisée à acquérir en vertu de larticle 453 ou acquiert ou augmente un intérêt de groupe financier quelle serait par ailleurs autorisée à acquérir ou augmenter en vertu de cet article peut continuer à détenir le contrôle ou lintérêt pour une période indéterminée si elle obtient lagrément écrit du ministre avant lexpiration du délai prévu aux paragraphes (2) ou (3) et prolongé, le cas échéant, aux termes du paragraphe (4). | |||
1991, c. 45, s. 457; 1997, c. 15, s. 389; 2001, c. 9, s. 550; 2007, c. 6, s. 373. |
1991, ch. 45, art. 457; 1997, ch. 15, art. 389; 2001, ch. 9, art. 550; 2007, ch. 6, art. 373. | |||
Realizations |
Réalisation dune sûreté | |||
458 (1) Despite anything in this Act, a company may acquire |
458 (1) Par dérogation aux autres dispositions de la présente loi, la société peut, sils découlent de la réalisation dune sûreté détenue par elle ou une de ses filiales : | |||
(a) an investment in a body corporate, |
a) effectuer un placement dans une personne morale; | |||
(b) an interest in an unincorporated entity, or |
b) acquérir un intérêt dans une entité non constituée en personne morale; | |||
(c) an interest in real property, if the investment or interest is acquired through the realization of a security interest held by the company or any of its subsidiaries. |
c) acquérir un intérêt immobilier. | |||
Disposition |
Aliénation | |||
(2) Subject to subsection 76(2), if a company acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by |
(2) Sous réserve du paragraphe 76(2), la société qui acquiert, du fait de la réalisation dune sûreté quelle ou une de ses filiales détient, le contrôle dune entité ou un |
Current to February 11, 2020 |
283 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Exceptions and Exclusions |
Exceptions et exclusions | |
Sections 458-459 | Articles 458-459 |
the company or any of its subsidiaries, the company shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the case may be, to ensure that the company no longer controls the entity or has a substantial investment in the entity. |
|
intérêt de groupe financier dans une entité doit prendre, ou faire prendre par sa filiale, selon le cas, les mesures nécessaires pour assurer lélimination du contrôle ou de lintérêt dans les cinq ans suivant son acquisition. | ||
Transitional |
Disposition transitoire | |||
(3) Despite subsection (2), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of a realization of a security interest under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990. |
(3) Par dérogation au paragraphe (2), la société qui existait le 1er juin 1992 et détenait le 27 septembre 1990 un intérêt dans une entité constituant un intérêt de groupe financier au sens de larticle 10 et qui augmente par la suite cet intérêt du fait de la réalisation dune sûreté doit prendre les mesures nécessaires pour annuler laugmentation dans les cinq ans suivant cette date. | |||
Extension |
Prolongation | |||
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary. |
(4) Le surintendant peut, sur demande, accorder à une société une ou plusieurs prolongations du délai de cinq ans visé aux paragraphes (2) ou (3) de la durée et aux conditions quil estime indiquées. | |||
Exception |
Exception | |||
(5) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 453, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4). |
(5) La société qui, dans le cadre du paragraphe (1), acquiert le contrôle dune entité quelle serait par ailleurs autorisée à acquérir en vertu de larticle 453 ou acquiert ou augmente un intérêt de groupe financier quelle serait par ailleurs autorisée à acquérir ou augmenter en vertu de cet article peut continuer à détenir le contrôle ou lintérêt pour une période indéterminée si elle obtient lagrément écrit du ministre avant lexpiration du délai prévu aux paragraphes (2) ou (3) et prolongé, le cas échéant, aux termes du paragraphe (4). | |||
1991, c. 45, s. 458; 1997, c. 15, s. 390; 2001, c. 9, s. 550. |
1991, ch. 45, art. 458; 1997, ch. 15, art. 390; 2001, ch. 9, art. 550. | |||
Regulations restricting ownership |
Règlements limitant le droit de détenir des actions | |||
459 The Governor in Council may make regulations | 459 Le gouverneur en conseil peut, par règlement : | |||
(a) for the purposes of subsection 453(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the companies or other entities in respect of which that subsection does not apply, including prescribing companies or other entities on the basis of the activities they engage in; |
a) pour lapplication du paragraphe 453(4), autoriser lacquisition du contrôle ou lacquisition ou laugmentation des intérêts de groupe financier, ou préciser les circonstances dans lesquelles ce paragraphe ne sapplique pas ou préciser les sociétés ou autres entités, notamment selon les activités quelles exercent, auxquelles ce paragraphe ne sapplique pas; | |||
(b) for the purposes of subsection 453(5) or (6), permitting the acquisition of control or the acquisition or |
b) pour lapplication des paragraphes 453(5) ou (6), autoriser lacquisition du contrôle ou lacquisition ou |
Current to February 11, 2020 |
284 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Exceptions and Exclusions |
Exceptions et exclusions | |
Sections 459-460 | Articles 459-460 |
increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the companies or other entities in respect of which either of those subsections does not apply, including prescribing companies or other entities on the basis of the activities they engage in; |
laugmentation des intérêts de groupe financier, ou préciser les circonstances dans lesquelles lun ou lautre de ces paragraphes ne sapplique pas ou préciser les sociétés ou autres entités, notamment selon les activités quelles exercent, auxquelles lun ou lautre de ces paragraphes ne sapplique pas; | |||
(c) for the purposes of subsection 453(10), permitting a company to give up control of an entity; and |
c) autoriser une société à renoncer au contrôle pour lapplication du paragraphe 453(10); | |||
(d) restricting the ownership by a company of shares of a body corporate or of ownership interests in an unincorporated entity under sections 453 to 458 and imposing terms and conditions applicable to companies that own such shares or interests. |
|
d) limiter, en application des articles 453 à 458, le droit de la société de posséder des actions dune personne morale ou des titres de participation dentités non constituées en personne morale et imposer des conditions à la société qui en possède. | ||
1991, c. 45, s. 459; 1997, c. 15, s. 391; 2001, c. 9, s. 550. |
1991, ch. 45, art. 459; 1997, ch. 15, art. 391; 2001, ch. 9, art. 550. | |||
Portfolio Limits | Limites relatives aux placements | |||
Exclusion from portfolio limits |
Restriction | |||
460 (1) Subject to subsection (3), the value of all loans, investments and interests acquired by a company and any of its prescribed subsidiaries under section 457 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the company and its prescribed subsidiaries under sections 461 to 466 |
460 (1) Sous réserve du paragraphe (3), la valeur de lensemble des prêts et placements faits et des intérêts acquis par la société et ses filiales réglementaires soit par la réalisation dune sûreté, soit en vertu de larticle 457, nest pas prise en compte dans le calcul de la valeur des prêts, placements et intérêts de la société et de ses filiales réglementaires visés aux articles 461 à 466 : | |||
(a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and |
a) dans le cas dun intérêt immobilier, pendant douze ans suivant la date de son acquisition; | |||
(b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property. |
b) dans le cas dun prêt, dun placement ou dun autre intérêt, pendant cinq ans suivant la date où il a été fait ou acquis. | |||
Extension |
Prolongation | |||
(2) The Superintendent may, in the case of any particular company, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary. |
(2) Le surintendant peut accorder à une société une ou plusieurs prolongations du délai visé au paragraphe (1) de la durée et aux conditions quil estime indiquées. | |||
Exception |
Exceptions | |||
(3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 467 to be an interest in real property and |
(3) Le paragraphe (1) ne sapplique pas aux placements et intérêts qui, aux termes des règlements pris en vertu de larticle 467, sont considérés comme des intérêts immobiliers et que la société ou filiale : | |||
(a) the company or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 467 to be an interest in real property; or |
a) soit a acquis du fait de la réalisation dune sûreté garantissant des prêts qui, aux termes des règlements pris en vertu de larticle 467, sont considérés comme des intérêts immobiliers; |
Current to February 11, 2020 |
285 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Portfolio Limits |
Limites relatives aux placements | |
Sections 460-464 |
Articles 460-464 |
(b) the company or the subsidiary acquired the investment or interest under section 457 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 467 to be an interest in real property. |
b) soit a acquis, dans le cadre de larticle 457, du fait de défauts visés à cet article à légard de prêts qui, aux termes des règlements pris en vertu de larticle 467, sont considérés comme des intérêts immobiliers. | |||
1991, c. 45, s. 460; 1997, c. 15, s. 392; 2001, c. 9, s. 550. |
|
1991, ch. 45, art. 460; 1997, ch. 15, art. 392; 2001, ch. 9, art. 550. | ||
Commercial Loans |
Prêts commerciaux | |||
Lending limit: companies with regulatory capital of $25 million or less | Capital réglementaire de vingt-cinq millions ou moins | |||
461 Subject to section 462, a company that has twenty-five million dollars or less of regulatory capital shall not, and shall not permit its prescribed subsidiaries to, make or acquire a commercial loan or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries exceeds, or the making or acquisition of the commercial loan or acquisition of control of the entity would cause the aggregate value of all commercial loans held by the company and its prescribed subsidiaries to exceed, 5 per cent of the total assets of the company. |
461 Sous réserve de larticle 462, il est interdit à la société dont le capital réglementaire est de vingt-cinq millions de dollars ou moins et celle-ci doit linterdire à ses filiales réglementaires de consentir ou dacquérir des prêts commerciaux ou dacquérir le contrôle dune entité admissible qui détient de tels prêts lorsque le total de la valeur des prêts commerciaux détenus par elle et ses filiales réglementaires excède ou excéderait de ce fait cinq pour cent de son actif total. | |||
1991, c. 45, s. 461; 1999, c. 28, s. 142; 2001, c. 9, s. 550. |
1991, ch. 45, art. 461; 1999, ch. 28, art. 142; 2001, ch. 9, art. 550. | |||
Lending limit: regulatory capital over $25 million |
Capital réglementaire supérieur à vingt-cinq millions | |||
462 A company that has twenty-five million dollars or less of regulatory capital that is controlled by a financial institution that has the equivalent of more than twenty-five million dollars of regulatory capital or a company that has more than twenty-five million dollars of regulatory capital may make or acquire commercial loans or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries would thereby exceed the limit set out in section 461 only with the prior approval in writing of the Superintendent and in accordance with any terms and conditions that the Superintendent may specify. |
462 La société dont le capital réglementaire est de vingt-cinq millions de dollars ou moins et qui est contrôlée par une institution financière dont le capital réglementaire est équivalent à plus de vingt-cinq millions de dollars ou la société dont le capital réglementaire est supérieur à vingt-cinq millions de dollars peut consentir ou acquérir des prêts commerciaux ou acquérir le contrôle dune entité admissible qui détient de tels prêts lorsque le total de la valeur des prêts commerciaux détenus par elle et ses filiales réglementaires excéderait de ce fait cinq pour cent de son actif total pourvu quelle obtienne lautorisation préalable écrite du surintendant et se conforme aux conditions que celui-ci peut fixer. | |||
1991, c. 45, s. 462; 1999, c. 28, s. 143; 2001, c. 9, s. 550. |
1991, ch. 45, art. 462; 1999, ch. 28, art. 143; 2001, ch. 9, art. 550. | |||
Meaning of total assets |
Sens de actif total | |||
463 For the purposes of sections 461 and 462, total assets, in respect of a company, has the meaning given to that expression by the regulations. |
463 Pour lapplication des articles 461 et 462, actif total sentend, en ce qui a trait à une société, au sens prévu par les règlements. | |||
1991, c. 45, s. 463; 2001, c. 9, s. 550. |
1991, ch. 45, art. 463; 2001, ch. 9, art. 550. | |||
Real Property |
Placements immobiliers | |||
Limit on total property interest |
Limite relative aux intérêts immobiliers | |||
464 A company shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any |
464 Il est interdit à la société et celle-ci doit linterdire à ses filiales réglementaires soit dacquérir un intérêt immobilier, soit de faire des améliorations à un bien |
Current to February 11, 2020 |
286 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Real Property |
Placements immobiliers | |
Sections 464-466 |
Articles 464-466 |
real property in which the company or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the company in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed the prescribed percentage of the regulatory capital of the company. |
|
immeuble dans lequel elle-même ou lune de ses filiales réglementaires a un intérêt, si la valeur globale de lensemble des intérêts immobiliers quelle détient excède ou excéderait de ce fait le pourcentage réglementaire du capital réglementaire de la société. | ||
1991, c. 45, s. 464; 2001, c. 9, s. 550. | 1991, ch. 45, art. 464; 2001, ch. 9, art. 550. | |||
Equities | Capitaux propres | |||
Limits on equity acquisitions |
Limites relatives à lacquisition dactions | |||
465 A company shall not, and shall not permit its prescribed subsidiaries to,
(a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or
(b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a),
if the aggregate value of
(c) all participating shares, excluding participating shares of permitted entities in which the company has a substantial investment, and
(d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the company has a substantial investment,
beneficially owned by the company and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the company. |
465 Il est interdit à la société et celle-ci doit linterdire à ses filiales réglementaires de procéder aux opérations suivantes si la valeur globale des actions participantes, à lexception des actions participantes des entités admissibles dans lesquelles elle détient un intérêt de groupe financier, et des titres de participation dans des entités non constituées en personne morale, à lexception des titres de participation dans des entités admissibles dans lesquelles la société détient un intérêt de groupe financier, détenus par celle-ci et ses filiales réglementaires à titre de véritable propriétaire excède ou excéderait de ce fait le pourcentage réglementaire du capital réglementaire de la société :
a) acquisition des actions participantes dune personne morale ou des titres de participation dune entité non constituée en personne morale, à lexception de lentité admissible dans laquelle elle détient ou détiendrait de ce fait un intérêt de groupe financier;
b) prise de contrôle dune entité qui détient des actions ou des titres de participation visés à lalinéa a). | |||
1991, c. 45, s. 465; 2001, c. 9, s. 550. |
1991, ch. 45, art. 465; 2001, ch. 9, art. 550. | |||
Aggregate Limit | Limite globale | |||
Aggregate limit |
Limite globale | |||
466 A company shall not, and shall not permit its prescribed subsidiaries to,
(a) purchase or otherwise acquire
(i) participating shares of a body corporate, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, |
466 Il est interdit à la société et celle-ci doit linterdire à ses filiales réglementaires de procéder aux opérations suivantes si la valeur globale de lensemble des actions participantes et des titres de participation visés aux sous-alinéas a)(i) et (ii) que détiennent à titre de véritable propriétaire la société et ses filiales réglementaires ainsi que des intérêts immobiliers de la société visés au sous-alinéa a)(iii) excède ou excéderait de ce fait le pourcentage réglementaire du capital réglementaire de la société : |
Current to February 11, 2020 |
287 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Aggregate Limit |
Limite globale | |
Sections 466-468 |
Articles 466-468 |
(ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or
(iii) interests in real property, or
(b) make an improvement to real property in which the company or any of its prescribed subsidiaries has an interest
if the aggregate value of
(c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the company and its prescribed subsidiaries,
and
(d) all interests of the company in real property referred to in subparagraph (a)(iii)
exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the company. |
|
a) acquisition :
(i) des actions participantes dune personne morale, à lexception de lentité admissible dans laquelle elle détient ou détiendrait de ce fait un intérêt de groupe financier,
(ii) des titres de participation dans une entité non constituée en personne morale, à lexception des titres de participation dans une entité admissible dans laquelle elle détient ou détiendrait de ce fait un intérêt de groupe financier,
(iii) des intérêts immobiliers;
b) améliorations dun immeuble dans lequel elle-même ou lune de ses filiales réglementaires a un intérêt.
| ||
1991, c. 45, s. 466; 1997, c. 15, s. 393; 2001, c. 9, s. 550. | 1991, ch. 45, art. 466; 1997, ch. 15, art. 393; 2001, ch. 9, art. 550. | |||
Miscellaneous | Divers | |||
Regulations |
Règlements | |||
467 For the purposes of this Part, the Governor in Council may make regulations |
467 Pour lapplication de la présente partie, le gouverneur en conseil peut, par règlement : | |||
(a) defining the interests of a company in real property; |
a) définir les intérêts immobiliers de la société; | |||
(b) determining the method of valuing those interests; or |
b) déterminer le mode de calcul de la valeur de ces intérêts; | |||
(c) exempting classes of companies from the application of sections 464, 465 and 466. |
c) exempter certaines catégories de sociétés de lapplication des articles 464, 465 et 466. | |||
1991, c. 45, s. 467; 1997, c. 15, s. 394; 2001, c. 9, s. 550. | 1991, ch. 45, art. 467; 1997, ch. 15, art. 394; 2001, ch. 9, art. 550. | |||
Divestment order |
Ordonnance de dessaisissement | |||
468 (1) The Superintendent may, by order, direct a company to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Part. |
468 (1) Le surintendant peut, par ordonnance, exiger que la société se départisse, dans le délai quil estime convenable, de tout prêt ou placement effectué, ou intérêt acquis, en contravention avec la présente partie. | |||
Divestment order |
Ordonnance de dessaisissement | |||
(2) If, in the opinion of the Superintendent,
(a) an investment by a company or any entity it controls in shares of a body corporate or in ownership |
(2) Le surintendant peut, par ordonnance, obliger la société à prendre, dans le délai quil juge acceptable, les mesures nécessaires pour quelle se départisse du contrôle dune personne morale ou dune entité non |
Current to February 11, 2020 |
288 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Miscellaneous |
Divers | |
Section 468 |
Article 468 |
interests in an unincorporated entity enables the company to control the body corporate or the unincorporated entity, or
(b) the company or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before
(i) the board of directors of a body corporate, or
(ii) a similar group or committee of an unincorporated entity,
or whereby no proposal may be approved except with the consent of the company, the entity it controls or the nominee,
the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b). |
|
constituée en personne morale ou du droit de veto ou dobstruction selon quil estime que, selon le cas :
a) le placement effectué par la société, ou une entité quelle contrôle, dans les actions dune personne morale ou dans les titres de participation dune entité non constituée en personne morale lui en confère le contrôle;
b) la société ou une entité quelle contrôle est partie à une entente permettant à elle ou à son délégué soit dopposer son veto à toute proposition soumise au conseil dadministration dune personne morale ou à un groupe similaire ou comité dune entité non constituée en personne morale, soit den subordonner lapprobation à son propre consentement ou à celui de lentité ou du délégué. | ||
Divestment order
(3) If
(a) a company
(i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 455(1), (2) or (4), or
(ii) is in default of an undertaking referred to in subsection 455(1) or (2) and the default is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default, or
(b) a permitted entity referred to in subsection 455(4) is in default of an undertaking referred to in that subsection and the default is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default,
the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer has a substantial investment in the entity to which the undertaking relates. |
Ordonnance de dessaisissement
(3) Le surintendant peut, par ordonnance, obliger la société à prendre, dans le délai quil juge acceptable, les mesures nécessaires pour quelle se départisse de lintérêt de groupe financier quelle détient dans une entité dans les cas suivants :
a) elle omet de donner ou dobtenir dans un délai acceptable les engagements visés aux paragraphes 455(1), (2) ou (4);
b) elle ne se conforme pas aux engagements visés aux paragraphes 455(1) ou (2) et ne remédie pas à linobservation dans les quatre-vingt-dix jours de la date de réception de lavis du surintendant relatif à linobservation;
c) une entité admissible visée au paragraphe 455(4) ne se conforme pas à lengagement visé à ce paragraphe et ne remédie pas à linobservation dans les quatre-vingt-dix jours de la date de réception de lavis du surintendant relatif à linobservation. | |||
Exception |
Exception | |||
(4) Subsection (2) does not apply in respect of an entity in which a company has a substantial investment permitted by this Part. |
(4) Le paragraphe (2) ne sapplique pas à lentité dans laquelle la société détient un intérêt de groupe financier autorisé au titre de la présente partie. | |||
1991, c. 45, s. 468; 2001, c. 9, s. 550. |
1991, ch. 45, art. 468; 2001, ch. 9, art. 550. |
Current to February 11, 2020 |
289 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Miscellaneous |
Divers | |
Sections 469-470 |
Articles 469-470 |
Deemed temporary investment |
|
Placements réputés provisoires | ||
469 If a company controls or has a substantial investment in an entity as permitted by this Part and the company becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 453(5) or (6), the company is deemed to have acquired, on the day the company becomes aware of the change, a temporary investment in respect of which section 456 applies. |
469 Dans le cas où elle contrôle une entité ou détient un intérêt de groupe financier dans celle-ci en conformité avec la présente partie et quelle constate dans lactivité commerciale ou les affaires internes de lentité un changement qui, sil était survenu antérieurement à lacquisition du contrôle ou de lintérêt, aurait fait en sorte quun agrément aurait été nécessaire pour lacquisition du contrôle ou de lintérêt en vertu des paragraphes 453(5) ou (6) ou que lentité aurait cessé dêtre admissible, la société est réputée avoir effectué le placement provisoire auquel larticle 456 sapplique le jour même où elle apprend le changement. | |||
1991, c. 45, s. 469; 1997, c. 15, s. 395; 2001, c. 9, s. 550. |
1991, ch. 45, art. 469; 1997, ch. 15, art. 395; 2001, ch. 9, art. 550. | |||
Asset transactions |
Opérations sur lactif | |||
470 (1) A company shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if |
470 (1) Il est interdit à la société et celle-ci doit linterdire à ses filiales sans lagrément du surintendant, dacquérir des éléments dactif auprès dune personne ou de céder des éléments dactif à une personne si : | |||
A + B > C | A + B > C | |||
where |
où : | |||
A is the value of the assets; |
A représente la valeur des éléments dactif; | |||
B is the total value of all assets that the company and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and |
B la valeur de tous les éléments dactif que la société et ses filiales ont acquis auprès de cette personne ou cédés à celle-ci pendant la période de douze mois précédant la date dacquisition ou de cession; | |||
C is ten per cent of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer. |
C dix pour cent de la valeur totale de lactif de la société figurant dans le dernier rapport annuel établi avant la date dacquisition ou de cession. | |||
Approval of series of transactions |
Agrément dans le cadre dune ou de plusieurs opérations | |||
(1.1) The Superintendent may, for the purposes of subsection (1), approve a transaction or series of transactions relating to the acquisition or transfer of assets that may be entered into with a person, or with persons of any class of persons, regardless of whether those persons are known at the time of the granting of the approval or not. |
(1.1) Le surintendant peut, pour lapplication du paragraphe (1), agréer une opération ou une série dopérations liée à lacquisition ou à la cession déléments dactif pouvant être conclue avec une personne ou avec plusieurs personnes faisant partie dune catégorie déterminée, quelles soient connues ou non au moment de loctroi de lagrément. | |||
Exceptions |
Exceptions | |||
(2) Subsection (1) does not apply in respect of | (2) Le paragraphe (1) ne sapplique pas : | |||
(a) an asset that is a debt obligation referred to in sub-paragraphs (b)(i) to (v) of the definition commercial loan in subsection 449(1); |
a) aux éléments dactif qui consistent en titres de créance visés aux sous-alinéas b)(i) à (v) de la définition de prêt commercial au paragraphe 449(1); | |||
(b) assets acquired or transferred under a transaction or series of transactions by the company with another financial institution as a result of the companys |
b) aux éléments dactif acquis ou cédés dans le cadre dune opération ou dune série dopérations intervenue entre la société et une autre institution financière à la |
Current to February 11, 2020 |
290 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Miscellaneous |
Divers | |
Section 470 |
Article 470 |
participation in one or more syndicated loans with that financial institution;
(c) assets purchased or sold under a sale agreement that is approved by the Minister under section 241;
(d) shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 453(5) is required or the approval of the Superintendent under subsection 453(6) is required;
(e) assets that are acquired or transferred under a transaction that has been approved by the Minister under subsection 678(1) of the Bank Act or subsection 715(1) of the Insurance Companies Act;
(f) assets, other than real property, acquired or disposed of under an arrangement that has been approved by the Superintendent under subsection 482(3); or
(g) assets acquired or disposed of with the approval of the Superintendent under subsection 482(4). |
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suite de la participation de la société et de linstitution à la syndication de prêts;
c) aux éléments dactif achetés ou vendus dans le cadre dune convention de vente approuvée par le ministre en vertu de larticle 241;
d) aux actions ou aux titres de participation dune entité dans un cas où lagrément du ministre est requis dans le cadre de la partie VII ou du paragraphe 453(5) ou dans un cas où lagrément du surintendant est requis dans le cadre du paragraphe 453(6);
e) aux éléments dactif acquis ou cédés dans le cadre dune opération approuvée par le ministre en vertu du paragraphe 678(1) de la Loi sur les banques ou du paragraphe 715(1) de la Loi sur les sociétés dassurances;
f) aux éléments dactif, autres que des biens immeubles, acquis ou aliénés conformément à des arrangements approuvés par le surintendant dans le cadre du paragraphe 482(3);
g) aux éléments dactif acquis ou aliénés avec lagrément du surintendant dans le cadre du paragraphe 482(4). | ||
(3) [Repealed, 2007, c. 6, s. 374]
Value of assets
(4) For the purposes of A in subsection (1), the value of the assets is
(a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and
(b) in the case of assets that are transferred, the value of the assets as reported in the last annual statement of the company prepared before the transfer or, if the value of the assets is not reported in that annual statement, the value of the assets as it would be reported in the annual statement of the company if the annual statement had been prepared, in accordance with the accounting principles referred to in subsection 313(4), immediately before the transfer. |
(3) [Abrogé, 2007, ch. 6, art. 374]
Calcul de la valeur des éléments dactif
(4) Pour le calcul de lélément A de la formule figurant au paragraphe (1), la valeur des éléments dactif est :
a) dans le cas où les éléments sont acquis, leur prix dachat ou, sil sagit dactions ou de titres de participation dune entité dont les éléments dactif figureront au rapport annuel de la société après lacquisition, la juste valeur marchande de ces éléments dactif;
b) dans le cas où les éléments sont cédés, la valeur des éléments qui est visée au dernier rapport annuel de la société établi avant la cession ou, si la valeur nest pas visée à ce rapport, la valeur qui serait visée au dernier rapport si celui-ci avait été établi avant la cession selon les principes comptables visés au paragraphe 313(4). | |||
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if |
Sens de valeur de tous les éléments dactif
(5) Pour lapplication du paragraphe (1), la valeur de tous les éléments dactif acquis par une société et ses filiales au cours de la période de douze mois visée au paragraphe (1) est leur prix dachat ou, sil sagit dactions |
Current to February 11, 2020 |
291 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART IX Investments |
PARTIE IX Placements | |
Miscellaneous |
Divers | |
Sections 470-472 |
Articles 470-472 |
the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition. |
|
ou de titres de participation dune entité dont les éléments dactif figureront au rapport annuel de la société après lacquisition, la juste valeur marchande de ces éléments dactif à la date dacquisition. | ||
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the 12-month period referred to in subsection (1) is the total of the value of each of those assets as reported in the last annual statement of the company prepared before the transfer of the asset or, if the value of any of those assets is not reported in that annual statement, as it would be reported in the annual statement of the company if the annual statement had been prepared, in accordance with the accounting principles referred to in subsection 313(4), immediately before the transfer of the asset.
1991, c. 45, s. 470; 1997, c. 15, s. 396; 2001, c. 9, s. 550; 2007, c. 6, s. 374. |
Valeur de tous les éléments dactif
(6) Pour lapplication du paragraphe (1), la
valeur de tous les éléments dactif cédés par une société et ses filiales au cours de la période de douze mois visée au paragraphe (1) est le total de la valeur de chacun de ces
éléments qui est visée au dernier rapport annuel de la société établi avant la cession de lélément ou, si elle nest pas visée à ce rapport, qui serait visée au
dernier rapport si celui-ci avait été établi avant la cession selon les principes comptables visés au paragraphe
1991, ch. 45, art. 470; 1997, ch. 15, art. 396; 2001, ch. 9, art. 550; 2007, ch. 6, art. 374. | |||
Transitional
471 Nothing in this Part requires
(a) the termination of a loan made before February 7, 2001;
(b) the termination of a loan made after that date as a result of a commitment made before that date;
(c) the disposal of an investment made before that date; or
(d) the disposal of an investment made after that date as a result of a commitment made before that date.
But if the loan or investment would be precluded or limited by this Part, the amount of the loan or investment may not, except as provided in subsections 456(2), 457(3) and 458(3), be increased after that date.
1991, c. 45, s. 471; 2001, c. 9, s. 550. |
Dispositions transitoires
471 La présente partie na pas pour effet dentraîner :
a) lannulation dun prêt consenti avant le 7 février 2001;
b) lannulation dun prêt consenti après cette date mais résultant dun engagement de prêt pris avant cette date;
c) lobligation de disposer dun placement fait avant cette date;
d) lobligation de disposer dun placement fait après cette date mais résultant dun engagement pris avant cette date;
cependant, après cette date, le montant du prêt ou du placement qui se trouve être interdit ou limité par la présente partie ne peut être augmenté, sauf disposition contraire des paragraphes 456(2), 457(3) et 458(3).
1991, ch. 45, art. 471; 2001, ch. 9, art. 550. | |||
Saving
472 A loan or investment referred to in section 471 is deemed not to be prohibited by the provisions of this Part. |
Non-interdiction
472 Le prêt ou placement visé à larticle 471 est réputé ne pas être interdit par la présente partie. |
Current to February 11, 2020 |
292 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART X Adequacy of Capital and Liquidity |
PARTIE X Capital et liquidités | |
Section 473 |
Article 473 |
PART X
Adequacy of Capital and Liquidity |
|
PARTIE X
Capital et liquidités | ||
Adequacy of capital and liquidity
473 (1) A company shall, in relation to its operations, maintain
(a) adequate capital, and
(b) adequate and appropriate forms of liquidity,
and shall comply with any regulations in relation thereto. |
Capital et liquidités suffisants
473 (1) La société est tenue de maintenir, pour son fonctionnement, un capital suffisant ainsi que des formes de liquidité suffisantes et appropriées, et de se conformer à tous les règlements relatifs à cette exigence. | |||
Regulations and guidelines
(2) The Governor in Council may make regulations and the Superintendent may make guidelines respecting the maintenance by companies of adequate capital and adequate and appropriate forms of liquidity. |
Règlements et lignes directrices
(2) Le gouverneur en conseil peut prendre des règlements et le surintendant donner des lignes directrices concernant lexigence formulée au paragraphe (1). | |||
Directives
(3) Notwithstanding that a company is complying with regulations or guidelines made under subsection (2), the Superintendent may, by order, direct the company
(a) to increase its capital; or
(b) to provide additional liquidity in such forms and amounts as the Superintendent may require. |
Ordonnance du surintendant
(3) Même si la société se conforme aux règlements et aux lignes directrices visés au paragraphe (2), le surintendant peut, par ordonnance, lui enjoindre daugmenter son capital ou de prévoir les formes et montants supplémentaires de liquidité quil estime indiqués. | |||
Compliance
(4) A company shall comply with an order made under subsection (3) within such time as the Superintendent specifies therein. |
Idem
(4) La société est tenue de se conformer à lordonnance visée au paragraphe (3) dans le délai que lui fixe le surintendant. | |||
Notice of value
(5) Where an appraisal of any asset held by a company or any of its subsidiaries has been made by the Superintendent and the value determined by the Superintendent to be the appropriate value of the asset varies materially from the value placed by the company or subsidiary on the asset, the Superintendent shall send to the company, the auditor of the company and the audit committee of the company a written notice of the appropriate value of the asset as determined by the Superintendent.
1991, c. 45, s. 473; 1996, c. 6, s. 120. |
Avis de la juste valeur
(5) Lorsque la valeur quil a déterminée pour un élément de lactif de la société ou de lune de ses filiales comme étant sa juste valeur diffère de façon marquée de celle attribuée par la société ou la filiale, le surintendant la notifie par écrit à la société, à son vérificateur et à son comité de vérification.
1991, ch. 45, art. 473; 1996, ch. 6, art. 120. |
Current to February 11, 2020 |
293 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Sections 473.1-474 |
Articles 473.1-474 |
PART XI
Self-dealing
Interpretation and Application |
|
PARTIE XI
Opérations avec apparentés
Interprétation et application | ||
Definition of senior officer
473.1 For the purposes of this Part, a senior officer of a body corporate is a person who is
(a) a director of the body corporate who is a full-time employee of the body corporate;
(b) the chief executive officer, chief operating officer, president, secretary, treasurer, controller, chief financial officer, chief accountant, chief auditor or chief actuary of the body corporate;
(c) a natural person who performs functions for the body corporate similar to those performed by a person referred to in paragraph (b);
(d) the head of the strategic planning unit of the body corporate;
(e) the head of the unit of the body corporate that provides legal services or human resources services to the body corporate; or
(f) any other officer reporting directly to the body corporates board of directors, chief executive officer or chief operating officer.
1997, c. 15, s. 397. |
Définition de cadre dirigeant
473.1 Pour lapplication de la présente partie, cadre dirigeant dune personne morale sentend :
a) de ladministrateur de la personne morale qui est un employé de celle-ci;
b) de la personne exerçant les fonctions de premier dirigeant, de directeur de lexploitation, de président, de secrétaire, de trésorier, de contrôleur, de directeur financier, de comptable en chef, de vérificateur en chef ou dactuaire en chef de la personne morale;
c) de toute personne physique exerçant pour la personne morale des fonctions semblables à celles qui sont visées à lalinéa b);
d) du chef du groupe de planification stratégique de la personne morale;
e) du chef du service juridique ou du service des ressources humaines de la personne morale;
f) de tout autre dirigeant relevant directement du conseil dadministration, du premier dirigeant ou du directeur de lexploitation de la personne morale.
1997, ch. 15, art. 397. | |||
Related party of company
474 (1) For the purposes of this Part, a person is a related party of a company where the person
(a) is a person who has a significant interest in a class of shares of the company;
(b) is a director or senior officer of the company or of a body corporate that controls the company or is acting in a similar capacity in respect of an unincorporated entity that controls the company;
(c) is the spouse or common-law partner, or a child who is less than eighteen years of age, of a person described in paragraph (a) or (b);
(d) is an entity that is controlled by a person referred to in any of paragraphs (a) to (c);
(e) is an entity in which a person who controls the company has a substantial investment; |
Apparentés
474 (1) Pour lapplication de la présente partie, est apparentée à la société la personne qui, selon le cas :
a) a un intérêt substantiel dans une catégorie dactions de celle-ci;
b) est un administrateur ou un cadre dirigeant de la société, ou dune personne morale qui la contrôle, ou exerce des fonctions similaires à légard dune entité non constituée en personne morale qui contrôle la société;
c) est lépoux ou conjoint de fait ou un enfant de moins de dix-huit ans dune des personnes visées aux alinéas a) et b);
d) est une entité contrôlée par une personne visée à lun des alinéas a) à c); |
Current to February 11, 2020 |
294 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Interpretation and Application |
Interprétation et application | |
Section 474 |
Article 474 |
(f) is an entity in which the spouse or common-law partner, or a child who is less than eighteen years of age, of a person who controls the company has a substantial investment; or
(g) is a person, or a member of a class of persons, designated under subsection (3) or (4) as, or deemed under subsection (5) to be, a related party of the company.
(h) [Repealed, 1997, c. 15, s. 398] |
|
e) est une entité dans laquelle une personne qui contrôle la société a un intérêt de groupe financier;
f) est une entité dans laquelle lépoux ou conjoint de fait ou un enfant de moins de dix-huit ans dune personne qui contrôle la société a un intérêt de groupe financier;
g) est une personne, ou appartient à une catégorie de personnes, désignée au titre des paragraphes (3) ou (4) ou considérée au titre du paragraphe (5) comme telle.
h) [Abrogé, 1997, ch. 15, art. 398] | ||
Exception subsidiaries and substantial investments of companies
(2) If an entity in which a company has a substantial investment would, but for this subsection, be a related party of the company only because a person who controls the company controls the entity or has a substantial investment in the entity, and the person does not control the entity or have a substantial investment in the entity otherwise than through the persons controlling interest in the company, the entity is not a related party of the company. |
Exception filiales et sociétés avec intérêt de groupe financier
(2) Lentité dans laquelle une société a un intérêt de groupe financier nest toutefois pas apparentée à la société du seul fait quune personne qui contrôle la société contrôle également lentité ou a dans lentité un intérêt de groupe financier, pourvu que cette personne nexerce de contrôle ou nait un intérêt de groupe financier que parce quelle contrôle la société. | |||
Designated related party
(3) For the purposes of this Part, the Superintendent may, with respect to a particular company, designate as a related party of the company
(a) any person or class of persons whose direct or indirect interest in or relationship with the company or a related party of the company might reasonably be expected to affect the exercise of the best judgment of the company in respect of a transaction; or
(b) any person who is a party to any agreement, commitment or understanding referred to in section 9 if the company referred to in that section is the particular company. |
Désignation dapparentés
(3) Pour lapplication de la présente partie, le surintendant peut, à légard dune société donnée, désigner comme apparentée :
a) toute personne ou catégorie de personnes dont lintérêt direct ou indirect dans la société ou une partie qui lui est apparentée, ou la relation avec elles, est vraisemblablement de nature à influencer lexercice du jugement de la société concernant une opération;
b) toute personne partie à lentente, laccord ou lengagement prévu à larticle 9 si la société mentionnée à cet article est la société en question. | |||
Idem
(4) Where a person is designated as a related party of a company pursuant to subsection (3), the Superintendent may also designate any entity in which the person has a substantial investment and any entity controlled by such an entity to be a related party of the company. |
Idem
(4) Le surintendant peut aussi désigner comme apparentées toutes les entités dans lesquelles la personne quil a désignée comme apparentée a un intérêt de groupe financier, ainsi que toutes les entités quelles contrôlent. | |||
Deemed related party
(5) Where, in contemplation of a person becoming a related party of a company, the company enters into a transaction with the person, the person is deemed for the |
Présomption
(5) La personne avec laquelle la société effectue une opération par laquelle elle lui deviendra apparentée est réputée, pour lapplication de la présente partie, lui être apparentée en ce qui touche lopération. |
Current to February 11, 2020 |
295 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Interpretation and Application |
Interprétation et application | |
Sections 474-475 |
Articles 474-475 |
purposes of this Part to be a related party of the company in respect of that transaction. |
|
|||
Holders of exempted shares
(6) The Superintendent may, by order, designate a class of non-voting shares of a company for the purpose of this subsection. If a class of non-voting shares of a company is so designated, a person is deemed, notwithstanding paragraph (1)(a), not to be a related party of the company if the person would otherwise be a related party of the company only because the person has a significant interest in that class. |
Exemption
(6) Le surintendant peut, par ordonnance, désigner une catégorie dactions sans droit de vote pour lapplication du présent paragraphe. Le cas échéant, une personne est réputée, par dérogation à lalinéa (1)a), ne pas être apparentée à la société si elle lui est par ailleurs apparentée en raison uniquement du fait quelle détient un intérêt substantiel dans cette catégorie dactions. | |||
Determination of substantial investment
(7) For the purpose of determining whether an entity or a person has a substantial investment for the purposes of paragraph (1)(e) or (f), the references to control and controlled in section 10 shall be construed as references to control, within the meaning of section 3, determined without regard to paragraph 3(1)(d) and controlled, within the meaning of section 3, determined without regard to paragraph 3(1)(d), respectively. |
Intérêt de groupe financier
(7) Lorsquil sagit de déterminer si une personne ou une entité détient un intérêt de groupe financier pour lapplication des alinéas (1)e) ou f), la mention de « contrôle » à larticle 10 vaut mention de « contrôle », au sens de larticle 3, abstraction faite de lalinéa 3(1)d). | |||
Determination of control
(8) For the purposes of paragraph (1)(d), controlled means controlled, within the meaning of section 3, determined without regard to paragraph 3(1)(d). |
Contrôle
(8) Pour lapplication de lalinéa (1)d), « contrôlée » sentend au sens de larticle 3, abstraction faite de lalinéa 3(1)d). | |||
1991, c. 45, s. 474; 1997, c. 15, s. 398; 2000, c. 12, s. 302. |
1991, ch. 45, art. 474; 1997, ch. 15, art. 398; 2000, ch. 12, art. 302. | |||
Non-application of Part
475 (1) This Part does not apply in respect of any transaction entered into prior to the coming into force of this Part but, after the coming into force of this Part, any modification of, addition to, or renewal or extension of a prior transaction is subject to this Part. |
Cas de non-application
475 (1) La présente partie ne vise pas les opérations antérieures à son entrée en vigueur; elle sapplique toutefois à leurs modifications, adjonctions, renouvellements ou prorogations postérieures à celle-ci. | |||
Idem
(2) This Part does not apply in respect of |
Idem
(2) La présente partie ne sapplique pas : | |||
(a) money or other assets held in trust, other than guaranteed trust money and assets held in respect thereof; |
a) aux fonds ou autres éléments dactif détenus en fiducie, à lexception des fonds en fiducie garantie ou éléments dactif détenus à leur égard; | |||
(b) the issue of shares of any class of shares of a company when fully paid for in money or when issued |
b) à lémission par la société dactions de toute catégorie si celles-ci ont été totalement libérées en numéraire ou si lémission a été effectuée, selon le cas : | |||
(i) in accordance with any provisions for the conversion of other issued and outstanding securities of the company into shares of that class of shares, |
(i) conformément aux dispositions prévoyant la conversion dautres valeurs mobilières émises et en circulation en actions de cette catégorie, | |||
(ii) as a share dividend, |
(ii) à titre de dividende, | |||
(iii) in exchange for shares of a body corporate that has been continued as a company under Part III, |
Current to February 11, 2020 |
296 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Interpretation and Application |
Interprétation et application | |
Section 475 | Article 475 |
(iii) en échange dactions dune personne morale prorogée comme société sous le régime de la partie III, | ||||
(iv) in accordance with the terms of an amalgamation under Part VI, |
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(iv) conformément aux modalités dune fusion réalisée dans le cadre de la partie VI, | ||
(v) by way of consideration in accordance with the terms of a sale agreement under Part VI, or |
(v) à titre de contrepartie, conformément aux conditions énoncées dans un contrat de vente conclu aux termes de la partie VI, | |||
(vi) with the approval in writing of the Superintendent, in exchange for shares of another body corporate; |
(vi) avec lagrément écrit du surintendant, en échange dactions dune autre personne morale; | |||
(c) the payment of dividends by a company; |
c) au paiement de dividendes par la société; | |||
(d) transactions that consist of the payment or provision by a company to persons who are related parties of the company of salaries, fees, stock options, pension benefits, incentive benefits or other benefits or remuneration in their capacity as directors, officers or employees of the company; |
d) aux opérations consistant en le paiement ou la remise par la société à des apparentés de salaires, dhonoraires, de prestations de retraite, doptions de souscription à des actions, de primes dencouragement ou de tout autre avantage ou rémunération à titre dadministrateurs, de dirigeants ou demployés de la société; | |||
(e) transactions approved by the Minister under subsection 678(1) of the Bank Act or subsection 715(1) of the Insurance Companies Act; or |
e) aux opérations approuvées par le ministre dans le cadre du paragraphe 678(1) de la Loi sur les banques ou du paragraphe 715(1) de la Loi sur les sociétés dassurances; | |||
(f) if a company is controlled by a widely held bank holding company or a widely held insurance holding company, transactions approved by the Superintendent that are entered as part of, or in the course of, a restructuring of the holding company or of any entity controlled by it. |
f) si la société est contrôlée par une société de portefeuille bancaire ou une société de portefeuille dassurances à participation multiple, aux opérations approuvées par le surintendant qui sont conclues dans le cadre dune restructuration de la société de portefeuille ou dune entité quelle contrôle. | |||
Exception
(3) Nothing in paragraph (2)(d) exempts from the application of this Part the payment by a company of fees or other remuneration to a person for |
Exception
(3) Lalinéa (2)d) na pas pour effet de soustraire à lapplication de la présente partie la rémunération : | |||
(a) the provision of services referred to in paragraph 483(1)(a); or |
a) pour la prestation de services dans le cas visé à lalinéa 483(1)a); | |||
(b) duties outside the ordinary course of business of the company. |
b) pour les fonctions accomplies en dehors du cadre normal de lactivité commerciale de la société. | |||
Exception for holding body corporate
(4) A holding body corporate of a company is not a related party of a company if the holding body corporate is a Canadian financial institution that is referred to in any of paragraphs (a) to (d) of the definition financial institution in section 2. |
Société mère exception
(4) La société mère de la société nest pas apparentée à celle-ci si la société mère est une institution financière canadienne visée aux alinéas a) à d) de la définition de « institution financière » à larticle 2. |
Current to February 11, 2020 |
297 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Interpretation and Application |
Interprétation et application | |
Sections 475-477 | Articles 475-477 |
Substantial investment related party exception
(5) Where a holding body corporate of a company is, because of subsection (4), not a related party of the company, any entity in which the holding body corporate has a substantial investment is not a related party of the company if no related party of the company has a substantial investment in the entity otherwise than through the control of the holding body corporate. |
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Exception
(5) Dans les cas où, en raison du paragraphe (4), une société mère nest pas apparentée à la société, lentité dans laquelle une société mère a un intérêt de groupe financier nest pas apparentée à la société si aucun apparenté de la société na un intérêt de groupe financier dans lentité autrement que par leffet du contrôle de la société mère. | ||
1991, c. 45, s. 475, c. 48, s. 493; 1997, c. 15, s. 399; 2001, c. 9, s. 551. |
1991, ch. 45, art. 475, ch. 48, art. 493; 1997, ch. 15, art. 399; 2001, ch. 9, art. 551. | |||
Meaning of transaction
476 (1) For the purposes of this Part, entering into a transaction with a related party of a company includes |
Sens de opération
476 (1) Pour lapplication de la présente partie, sont assimilés à une opération avec un apparenté : | |||
(a) making a guarantee on behalf of the related party; |
a) la garantie consentie en son nom; | |||
(b) making an investment in any securities of the related party; |
b) le placement effectué dans ses valeurs mobilières; | |||
(c) taking an assignment of or otherwise acquiring a loan made by a third party to the related party; and |
c) lacquisition, notamment par cession, dun prêt consenti à celui-ci par un tiers; | |||
(d) taking a security interest in the securities of the related party. |
d) la constitution dune sûreté sur ses valeurs mobilières. | |||
Interpretation
(2) For the purposes of this Part, the fulfilment of an obligation under the terms of any transaction, including the payment of interest on a loan or deposit, is part of the transaction, and not a separate transaction. |
Interprétation
(2) Pour lapplication de la présente partie, lexécution dune obligation liée à une opération, y compris le paiement dintérêts sur un prêt ou un dépôt, fait partie de celle-ci et ne constitue pas une opération distincte. | |||
Meaning of loan
(3) For the purposes of this Part, loan includes a deposit, a financial lease, a conditional sales contract, a repurchase agreement and any other similar arrangement for obtaining funds or credit, but does not include investments in securities or the making of an acceptance, endorsement or other guarantee. |
Sens de prêt
(3) Pour lapplication de la présente partie, sont assimilés à un prêt, le dépôt, le crédit-bail, le contrat de vente conditionnelle, la convention de rachat et toute autre entente similaire en vue dobtenir des fonds ou du crédit, à lexception du placement dans des valeurs mobilières et de la signature dune acceptation, dun endossement ou dune autre garantie. | |||
Security of a related party
(4) For the purposes of this Part, security of a related party includes an option, transferable by delivery, to demand delivery of a specified number or amount of shares of the related party at a fixed price within a specified time. |
Titre ou valeur mobilière dun apparenté
(4) Pour lapplication de la présente partie, est assimilée à un titre ou à une valeur mobilière dun apparenté une option négociable par tradition ou transfert qui permet dexiger la livraison dun nombre précis dactions à un prix et dans un délai déterminés. | |||
1991, c. 45, s. 476; 2007, c. 6, s. 375. |
1991, ch. 45, art. 476; 2007, ch. 6, art. 375. | |||
Prohibited Related Party Transactions | Opérations interdites | |||
Prohibited transactions
477 (1) Except as provided in this Part, a company shall not, directly or indirectly, enter into any transaction with a related party of the company. |
Opérations interdites
477 (1) Sauf disposition contraire de la présente partie, il est interdit à la société deffectuer une opération avec un apparenté, que ce soit directement ou indirectement. |
Current to February 11, 2020 |
298 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Prohibited Related Party Transactions |
Opérations interdites | |
Sections 477-480 | Articles 477-480 |
Transaction of entity
(2) Without limiting the generality of subsection (1), a company is deemed to have indirectly entered into a transaction in respect of which this Part applies where the transaction is entered into by an entity that is controlled by the company. |
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Présomption
(2) Il est entendu que la société est réputée avoir indirectement effectué une opération régie par la présente partie si lopération a été effectuée par une entité contrôlée par elle. | ||
Exception
(3) Subsection (2) does not apply where an entity that is controlled by a company is a financial institution incorporated or formed under the laws of a province and is subject to regulation and supervision, satisfactory to the Minister, regarding transactions with related parties of the company. |
Exception
(3) Le paragraphe (2) ne sapplique pas à lentité, contrôlée par la société, qui est une institution financière constituée en personne morale ou formée sous le régime dune loi provinciale et qui est assujettie à une réglementation et à une supervision, en matière dopérations avec les apparentés, que le ministre juge satisfaisantes. | |||
Idem
(4) Subsection (2) does not apply in respect of transactions entered into by an entity that is controlled by a company if the transaction is a prescribed transaction or is one of a class of prescribed transactions. |
Idem
(4) Le paragraphe (2) ne sapplique pas aux opérations qui sont prévues par règlement ou appartiennent à une catégorie réglementaire. | |||
Permitted Related Party Transactions | Opérations permises | |||
Nominal value transactions
478 Notwithstanding anything in this Part, a company may enter into a transaction with a related party of the company if the value of the transaction is nominal or immaterial to the company when measured by criteria that have been established by the conduct review committee of the company and approved in writing by the Superintendent. |
Opérations à valeur peu importante
478 Par dérogation aux autres dispositions de la présente partie, est permise toute opération ayant une valeur peu importante selon les critères dévaluation établis par le comité de révision de la société et agréés par écrit par le surintendant. | |||
Secured loans
479 A company may make a loan to or a guarantee on behalf of a related party of the company or take an assignment of or otherwise acquire a loan to a related party of the company if |
Prêts garantis
479 La société peut consentir un prêt à un apparenté ou acquérir un prêt, notamment par cession, consenti à ce dernier ou consentir une garantie en son nom, si : | |||
(a) the loan or guarantee is fully secured by securities of or guaranteed by the Government of Canada or the government of a province; or |
a) le prêt ou la garantie est entièrement garanti par soit des titres du gouvernement du Canada ou dune province, soit des titres garantis par lui; | |||
(b) the loan is a loan permitted by section 418 made to a related party who is a natural person on the security of a mortgage of the principal residence of that related party. |
b) le prêt est autorisé au titre de larticle 418 et est consenti à un apparenté qui est une personne physique contre la garantie dune hypothèque sur sa résidence principale. | |||
Deposits
480 A company may enter into a transaction with a related party of the company if the transaction consists of a deposit by the company with a financial institution that is a direct clearer or a member of a clearing group under |
Dépôts
480 Est également permise lopération consistant en un dépôt effectué, pour compensation, par la société auprès dune institution financière qui est un adhérent ou un membre dun groupe de compensation aux termes des |
Current to February 11, 2020 |
299 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 480-482 | Articles 480-482 |
the by-laws of the Canadian Payments Association and the deposit is made for clearing purposes. |
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règlements administratifs de lAssociation canadienne des paiements. | ||
Borrowing, etc., from related party
481 A company may borrow money from, take deposits from, or issue debt obligations to, a related party of the company. |
Emprunt auprès dun apparenté
481 La société peut emprunter de largent à un apparenté, en recevoir des dépôts ou lui émettre des titres de créance. | |||
Acquisition of assets
482 (1) A company may purchase or otherwise acquire from a related party of the company |
Acquisition déléments dactif
482 (1) La société peut acquérir dun apparenté des titres du gouvernement du Canada ou dune province ou des titres garantis par lui, ou des éléments dactif entièrement garantis par de tels titres, ou encore des produits utilisés dans le cadre normal de son activité commerciale. | |||
(a) securities of, or securities guaranteed by, the Government of Canada or the government of a province; |
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(b) assets fully secured by securities of, or securities guaranteed by, the Government of Canada or the government of a province; or |
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(c) goods for use in the ordinary course of business. |
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Sale of assets
(2) Subject to section 470, a company may sell any assets of the company to a related party of the company if |
Vente déléments dactif
(2) Sous réserve de larticle 470, la société peut vendre des éléments dactif à un apparenté dans les cas suivants : | |||
(a) the consideration for the assets is fully paid in money; and |
a) la contrepartie est entièrement payée en argent; | |||
(b) there is an active market for those assets. |
b) il existe pour ces éléments dactif un marché actif. | |||
Asset transactions with financial institutions
(3) Notwithstanding any of the provisions of subsections (1) and (2), a company may, in the normal course of business and pursuant to arrangements that have been approved by the Superintendent in writing, acquire or dispose of any assets, other than real property, from or to a related party of the company that is a financial institution. |
Opérations effectuées avec des institutions financières
(3) La société peut, par dérogation aux paragraphes (1) et (2), dans le cadre normal de son activité commerciale et conformément à des arrangements approuvés par écrit par le surintendant, acquérir des éléments dactif, autres que des biens immeubles, dun apparenté qui est une institution financière ou les aliéner en sa faveur. | |||
Asset transactions in restructuring
(4) Notwithstanding any of the provisions of subsections (1) and (2), a company may acquire any assets from, or dispose of any assets to, a related party of the company as part of, or in the course of, a restructuring, if the acquisition or disposition has been approved in writing by the Superintendent. |
Opérations dans le cadre dune restructuration
(4) Par dérogation aux paragraphes (1) et (2), dans le cadre dune restructuration, la société peut, avec lagrément écrit du surintendant, acquérir des éléments dactif dun apparenté ou les aliéner en sa faveur. | |||
Goods or space for use in business
(5) A company may lease assets |
Location de produits ou locaux
(5) Si la contrepartie est payée en argent, la société peut : | |||
(a) from a related party of the company for use in the ordinary course of business of the company, or |
a) soit prendre à bail dun apparenté des éléments dactif quelle utilise dans le cadre normal de son activité commerciale; | |||
(b) to a related party of the company, |
Current to February 11, 2020 |
300 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 482-483 | Articles 482-483 |
if the lease payments are made in money. |
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b) soit lui donner à bail des éléments dactif. | ||
Approval under section 241
(6) A company may acquire any assets from, or dispose of any assets to, a related party of the company under a sale agreement that is approved by the Minister under section 241. |
Approbation : article 241
(6) Une société peut acquérir des éléments dactif dun apparenté ou les aliéner en sa faveur dans le cadre dune convention de vente approuvée par le ministre en vertu de larticle 241. | |||
1991, c. 45, s. 482; 2007, c. 6, s. 376. |
1991, ch. 45, art. 482; 2007, ch. 6, art. 376. | |||
Services
483 (1) A company may enter into a transaction with a related party of the company if the transaction |
Services
483 (1) Est également permise toute opération entre la société et un apparenté qui consiste en : | |||
(a) subject to subsection (2), consists of a written contract for the purchase by the company of services used in the ordinary course of business; |
a) un contrat écrit pour lachat par elle de services utilisés dans le cadre normal de son activité commerciale, sous réserve du paragraphe (2); | |||
(b) subject to subsection (4), involves the provision by the company of services, other than loans or guarantees, normally offered to the public by the company in the ordinary course of business; |
b) sous réserve du paragraphe (4), la prestation par elle de services, à lexception des prêts ou garanties, habituellement offerts au public par la société dans le cadre normal de son activité commerciale; | |||
(c) consists of a written contract with a financial institution or an entity in which the company is permitted to have a substantial investment pursuant to section 453 that is a related party of the company |
c) un contrat écrit avec une institution financière ou une entité dans laquelle elle est autorisée à détenir un intérêt de groupe financier en vertu de larticle 453 en vue : | |||
(i) for the networking of any services provided by the company or the financial institution or entity, or |
(i) doffrir le réseau des services fournis par la société ou linstitution financière ou lentité, | |||
(ii) for the referral of any person by the company to the financial institution or entity, or for the referral of any person by the financial institution or entity to the company; |
(ii) du renvoi dune personne soit par la société à linstitution financière ou à lentité, soit par linstitution financière ou lentité à la société; | |||
(d) consists of a written contract for such pension or benefit plans or their management or administration as are incidental to directorships or to the employment of officers or employees of the company or its subsidiaries; or |
d) un contrat écrit en vue de régimes de retraite ou dautres avantages liés aux fonctions dadministrateur ou à lemploi des dirigeants et employés de la société et de ses filiales, ainsi que leur gestion ou mise en uvre; | |||
(e) involves the provision by the company of management, advisory, accounting, information processing or other services in relation to any business of the related party. |
e) la prestation de services par la société à légard de lactivité de lapparenté, notamment de services de gestion, de conseil, de comptabilité ou de traitement des données. | |||
Order concerning management by employees
(2) Where a company has entered into a contract pursuant to paragraph (1)(a) and the contract, when taken together with all other such contracts entered into by the company, results in all or substantially all of the management functions of the company being exercised by persons who are not employees of the company, the Superintendent may, by order, if the Superintendent considers |
Ordonnance du surintendant concernant la gestion par les employés
(2) Si la société a conclu un contrat conformément à lalinéa (1)a) et que le contrat a pour effet, compte tenu de tous les autres contrats conclus par elle, de confier la totalité ou quasi-totalité des responsabilités de gestion de la société à des personnes qui nen sont pas des employés, le surintendant peut, par ordonnance, sil juge la situation inacceptable, enjoindre à la société de |
Current to February 11, 2020 |
301 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 483-483.2 | Articles 483-483.2 |
that result to be inappropriate, require the company, within such time as may be specified in the order, to take all steps necessary to ensure that management functions that are integral to the carrying on of business by the company are exercised by employees of the company to the extent specified in the order. |
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prendre, dans le délai et selon les modalités qui y sont prévus, toutes les mesures nécessaires pour que les responsabilités de gestion essentielles au fonctionnement de la société soient assumées par des employés de celle-ci. | ||
Exception
(3) Despite subsection 477(2), a company is deemed not to have indirectly entered into a transaction in respect of which this Part applies if the transaction is entered into by an entity that is controlled by the company and the business of which is limited to the activity referred to in 453(2)(c) and the transaction is on terms and conditions at least as favourable to the company as market terms and conditions, as defined in subsection 489(2). |
Exception
(3) Par dérogation au paragraphe 477(2), la société est réputée ne pas avoir effectué indirectement une opération visée par la présente partie si lopération est effectuée par une entité qui est contrôlée par la société et dont lactivité commerciale se limite à lactivité visée à lalinéa 453(2)c), et que lopération a été effectuée à des conditions au moins aussi favorables pour la société que les conditions du marché, au sens du paragraphe 489(2). | |||
Loans or guarantees not included
(4) The provision of services, for the purposes of paragraph (1)(b), does not include the making of loans or guarantees. |
Exceptions
(4) Pour lapplication de lalinéa (1)b), sont exclues de la prestation de services les opérations de prêt ou de garantie. | |||
1991, c. 45, s. 483; 1997, c. 15, s. 400; 2007, c. 6, s. 377. |
1991, ch. 45, art. 483; 1997, ch. 15, art. 400; 2007, ch. 6, art. 377. | |||
Transactions with holding companies
483.1 (1) Subject to subsection (2) and sections 483.2 and 483.3, if a widely held insurance holding company or a widely held bank holding company has a significant interest in any class of shares of a company, the company may enter into any transaction with the holding company or with any other related party of the company that is an entity in which the holding company has a substantial investment. |
Opérations avec société de portefeuille
483.1 (1) Sous réserve du paragraphe (2) et des articles 483.2 et 483.3, la société dans les actions de laquelle une société de portefeuille dassurances ou une société de portefeuille bancaire à participation multiple a un intérêt substantiel peut effectuer toute opération avec la société de portefeuille ou toute autre entité avec laquelle elle est apparentée et dans laquelle la société de portefeuille a un intérêt de groupe financier. | |||
Policies and procedures
(2) The company shall adhere to policies and procedures established under subsection 199(3) when entering into the transaction. |
Principes et mécanismes
(2) La société est tenue de se conformer aux principes et mécanismes établis conformément au paragraphe 199(3) en effectuant lopération. | |||
2001, c. 9, s. 552. |
2001, ch. 9, art. 552. | |||
Restriction
483.2 (1) If a company enters into a transaction with a related party of the company with whom the company may enter into transactions under subsection 483.1(1) and that is not a federal financial institution, the company shall not directly or indirectly make, take an assignment of or otherwise acquire a loan to the related party, make an acceptance, endorsement or other guarantee on behalf of the related party or make an investment in the securities of the related party if, immediately following the transaction, the aggregate financial exposure, as that expression is defined by the regulations, of the company would exceed |
Restrictions
483.2 (1) Si lapparenté avec lequel le paragraphe 483.1(1) lautorise à effectuer une opération nest pas une institution financière fédérale, la société ne peut, que ce soit directement ou indirectement, lui consentir ou en acquérir un prêt, notamment par cession, consentir une garantie en son nom, notamment une acceptation ou un endossement, ni effectuer un placement dans ses titres si lopération a pour effet de porter le total des risques financiers, au sens des règlements, en ce qui la concerne : | |||
a) pour ce qui est de toutes les opérations avec cet apparenté, à plus du pourcentage réglementaire, ou si aucun pourcentage nest fixé par règlement, à plus de cinq pour cent, de son capital réglementaire; |
Current to February 11, 2020 |
302 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 483.2-483.3 | Articles 483.2-483.3 |
(a) in respect of all transactions of the company with the related party, the prescribed percentage of the companys regulatory capital or, if no percentage is prescribed, five per cent of the companys regulatory capital; or |
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(b) in respect of all transactions of the company with such related parties of the company, the prescribed percentage of the companys regulatory capital or, if no percentage is prescribed, ten per cent of the companys regulatory capital. |
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b) pour ce qui est de toutes les opérations avec de tels apparentés, à plus du pourcentage réglementaire, ou si aucun pourcentage nest fixé par règlement, à plus de dix pour cent, de son capital réglementaire. | ||
Order
(2) If the Superintendent is of the opinion that it is necessary for the protection of the interests of the depositors and creditors of a company, the Superintendent may, by order, |
Ordonnance du surintendant
(2) Sil lestime nécessaire à la protection des intérêts des déposants et créanciers de la société, le surintendant peut, par ordonnance : | |||
(a) reduce the limit in paragraph (1)(a) or (b) that would otherwise apply to the company; and |
a) réduire les limites qui sappliqueraient par ailleurs à la société dans le cadre des alinéas (1)a) et b); | |||
(b) impose limits on transactions by the company with related parties with whom the company may enter into transactions under subsection 483.1(1) that are federal financial institutions. |
b) imposer des limites pour les opérations effectuées par la société avec des apparentés avec lesquels le paragraphe 483.1(1) lautorise à effectuer des opérations et qui sont des institutions financières fédérales. | |||
Order
(3) The Superintendent may, by order, increase the limit in paragraph (1)(a) or (b) that would otherwise apply to a company on transactions by the company with related parties that are financial institutions that are regulated in a manner acceptable to the Superintendent. |
Ordonnance du surintendant
(3) Le surintendant peut, par ordonnance, augmenter les limites par ailleurs applicables dans le cadre des alinéas (1)a) et b) en ce qui concerne les opérations effectuées avec des apparentés qui sont des institutions financières réglementées dune façon quil juge acceptable. | |||
2001, c. 9, s. 552. |
2001, ch. 9, art. 552. | |||
Assets transactions
483.3 (1) Despite subsection 482(3), a company shall not, without the approval of the Superintendent and its conduct review committee, directly or indirectly acquire assets from a related party of the company with whom the company may enter into transactions under subsection 483.1(1) that is not a federal financial institution, or directly or indirectly transfer assets to such a related party if |
Opérations sur lactif
483.3 (1) Malgré le paragraphe 482(3), il est interdit à la société, sans lautorisation du surintendant et de son comité de révision, dacquérir directement ou indirectement des éléments dactif auprès dun apparenté avec lequel le paragraphe 483.1(1) lautorise à effectuer une opération mais qui nest pas une institution financière fédérale ou de céder directement ou indirectement des éléments dactif à cet apparenté si : | |||
A + B > C | A + B > C | |||
where | où : | |||
A is the value of the assets; |
A représente la valeur des éléments dactif; | |||
B is the total value of all assets that the company directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the 12 months ending immediately before the acquisition or transfer, other than assets acquired by or transferred to the company under transactions permitted by section 478; and |
B la valeur de tous les éléments dactif que la société a acquis auprès de cet apparenté ou cédés à celui-ci pendant la période de douze mois précédant la date dacquisition ou de cession, sauf ceux quelle a acquis ou qui lui ont été transférés dans le cadre de toute opération visée à larticle 478; |
Current to February 11, 2020 |
303 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Section 483.3 | Article 483.3 |
C is five per cent, or the percentage that may be prescribed, of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer. |
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C cinq pour cent ou si un autre pourcentage est fixé par règlement, le pourcentage fixé par règlement de la valeur totale de lactif de la société figurant dans le dernier rapport annuel établi avant la date dacquisition ou de cession. | ||
Exception
(2) The prohibition in subsection (1) does not apply in respect of assets purchased or otherwise acquired under subsection 482(1), assets sold under subsection 482(2) or any other assets as may be prescribed. |
Exception
(2) Cette interdiction ne sapplique toutefois pas aux éléments dactif acquis dans le cadre du paragraphe 482(1) ou vendus dans le cadre du paragraphe 482(2) ou tous autres éléments dactif prévus par règlement. | |||
Exception
(3) The approval of the Superintendent is not required if |
Exception
(3) Lagrément du surintendant nest pas nécessaire dans lun ou lautre des cas suivants : | |||
(a) the company purchases or sells assets under a sale agreement that is approved by the Minister under section 241; or |
a) lachat ou la vente des éléments dactif se fait dans le cadre dune convention de vente approuvée par le ministre en vertu de larticle 241; | |||
(b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 453(5) is required or the approval of the Superintendent under subsection 453(6) is required. |
b) la société ou lune de ses filiales acquiert les actions ou des titres de participation dune entité dans un cas où lagrément du ministre est requis dans le cadre de la partie VII ou du paragraphe 453(5) ou dans un cas où lagrément du surintendant est requis dans le cadre du paragraphe 453(6). | |||
Value of assets
(4) For the purposes of A in subsection (1), the value of the assets is |
Calcul de la valeur des éléments dactif
(4) Pour le calcul de lélément A de la formule figurant au paragraphe (1), la valeur des éléments dactif est : | |||
(a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and |
a) dans le cas où les éléments sont acquis, leur prix dachat ou, sil sagit dactions ou de titres de participation dune entité dont les éléments dactif figureront au rapport annuel de la société après lacquisition, la juste valeur marchande de ces éléments dactif; | |||
(b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement. |
b) dans le cas où les éléments sont cédés, la valeur comptable des éléments figurant au dernier rapport annuel de la société établi avant la date de cession ou, sil sagit dactions ou de titres de participation dune entité dont les éléments dactif figuraient au dernier rapport annuel établi avant la date de cession, la valeur des éléments figurant dans le rapport annuel. | |||
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, |
Sens de valeur de tous les éléments dactif
(5) Pour lapplication du paragraphe (1), la valeur de tous les éléments dactif acquis par une société et ses filiales au cours de la période de douze mois visée au paragraphe (1) est leur prix dachat ou, sil sagit dactions ou de titres de participation dune entité dont les éléments dactif figureront au rapport annuel de la société après lacquisition, la juste valeur marchande de ces éléments dactif à la date dacquisition. |
Current to February 11, 2020 |
304 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 483.3-484 | Articles 483.3-484 |
the fair market value of the assets of the entity at the date of the acquisition. |
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Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement. |
Sens de valeur de tous les éléments dactif
(6) Pour lapplication du paragraphe (1), la valeur de tous les éléments dactif cédés par une société et ses filiales au cours de la période de douze mois visée au paragraphe (1) est la valeur comptable des éléments figurant au dernier rapport annuel de la société établi avant la date de cession ou, sil sagit dactions ou de titres de participation dune entité dont les éléments dactif figuraient au dernier rapport annuel établi avant la date de cession, la valeur des éléments de lentité figurant dans le rapport annuel. | |||
2001, c. 9, s. 552; 2007, c. 6, s. 378. |
2001, ch. 9, art. 552; 2007, ch. 6, art. 378. | |||
Directors and officers and their interests
484 (1) Subject to subsection (2) and sections 485 and 486, a company may enter into any transaction with a related party of the company if the related party is |
Intérêts des administrateurs et des dirigeants
484 (1) Sous réserve du paragraphe (2) et des articles 485 et 486, est permise lopération entre la société et un apparenté dans le cas où lapparentement résulte uniquement du fait que : | |||
(a) a natural person who is a related party of the company only because the person is |
a) soit la personne physique en cause est : | |||
(i) a director or senior officer of the company or of an entity that controls the company, or |
(i) un administrateur ou un cadre dirigeant de la société ou dune entité qui la contrôle, | |||
(ii) the spouse or common-law partner, or a child who is less than eighteen years of age, of a director or senior officer of the company or of an entity that controls the company; or |
(ii) lépoux ou conjoint de fait, ou un enfant de moins de dix-huit ans, dun administrateur ou dun cadre dirigeant de la société ou dune entité qui la contrôle; | |||
(b) an entity that is a related party of the company only because the entity is controlled by |
b) soit lentité en cause est contrôlée par : | |||
(i) a director or senior officer of the company or of an entity that controls the company, or |
(i) un administrateur ou un cadre dirigeant de la société ou dune entité qui la contrôle, | |||
(ii) the spouse or common-law partner, or a child who is less than eighteen years of age, of a director or senior officer referred to in subparagraph (i). |
(ii) lépoux ou conjoint de fait, ou un enfant de moins de dix-huit ans, de cet administrateur ou de ce cadre dirigeant. | |||
Loans to full-time senior officers
(2) A company may, with respect to a related party of the company referred to in subsection (1) who is a full-time senior officer of the company, make, take an assignment of or otherwise acquire a loan to the related party only if the aggregate principal amount of all outstanding loans to the related party that are held by the company and its subsidiaries, together with the principal amount of the proposed loan, does not exceed the greater of twice the annual salary of the related party and $100,000. |
Prêt au cadre dirigeant
(2) Dans le cas où lapparenté visé au paragraphe (1) est un cadre dirigeant à temps plein de la société, celle-ci ne peut lui consentir ou en acquérir un prêt, notamment par cession, que si le total du principal de tous les prêts quelle-même et ses filiales lui ont déjà consentis et du principal du prêt envisagé nexcède pas cent mille dollars ou, sil est supérieur, le double du traitement annuel du cadre dirigeant. |
Current to February 11, 2020 |
305 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Section 484 | Article 484 |
Exception
|
|
Non-application
| ||
(3) Subsection (2) does not apply in respect of
(a) loans referred to in paragraph 479(b), and
(b) margin loans referred to in section 486, |
(3) Le paragraphe (2) ne sapplique pas aux prêts visés à lalinéa 479b) ni aux prêts sur marge visés à larticle 486 et le montant de ces prêts consentis par la société à des apparentés nest pas pris en compte dans le calcul prévu au paragraphe (2) du total du principal de tous les prêts dont bénéficie déjà le dirigeant. | |||
and the amount of any such loans to a related party of a company shall not be included in determining, for the purposes of subsection (2), the aggregate principal amount of all outstanding loans made by the company to the related party. |
||||
Preferred terms loan to senior officer |
Conditions plus favorables prêt à un cadre dirigeant | |||
(4) Notwithstanding section 489, a company may make a loan, other than a margin loan, to a senior officer of the company on terms and conditions more favourable to the officer than those offered to the public by the company if those terms and conditions have been approved by the conduct review committee of the company. |
(4) Par dérogation à larticle 489, la société peut consentir un prêt à lexception du prêt sur marge à un cadre dirigeant à des conditions plus favorables que celles du marché, pourvu quelles soient approuvées par son comité de révision. | |||
Preferred terms loan to spouse or common-law partner |
Conditions plus favorables prêt à lépoux ou conjoint de fait | |||
(5) Notwithstanding section 489, a company may make a loan referred to in paragraph 479(b) to the spouse or common-law partner of a senior officer of the company on terms and conditions more favourable than those offered to the public by the company if those terms and conditions have been approved by the conduct review committee of the company. |
(5) Par dérogation à larticle 489, la société peut consentir à lépoux ou conjoint de fait de lun de ses cadres dirigeants le prêt visé à lalinéa 479b) à des conditions plus favorables que celles du marché, pourvu quelles soient approuvées par son comité de révision. | |||
Preferred terms other financial services |
Conditions plus favorables autres services financiers | |||
(6) Notwithstanding section 489, a company may offer financial services, other than loans or guarantees, to a senior officer of the company, or to the spouse or common-law partner, or a child who is less than eighteen years of age, of a senior officer of the company, on terms and conditions more favourable than those offered to the public by the company if |
(6) Par dérogation à larticle 489, la société peut offrir des services financiers, à lexception de prêts ou de garanties, à lun de ses cadres dirigeants, ou à son époux ou conjoint de fait ou à son enfant de moins de dix-huit ans, à des conditions plus favorables que celles du marché si : | |||
(a) the financial services are offered by the company to employees of the company on those favourable terms and conditions; and |
a) dune part, elle offre ces services à ses employés aux mêmes conditions; | |||
(b) the conduct review committee of the company has approved the practice of making those financial services available on those favourable terms and conditions to senior officers of the company or to the spouses or common-law partners, or the children under eighteen years of age, of senior officers of the company. |
b) dautre part, son comité de révision a approuvé, de façon générale, la prestation de ces services à des cadres dirigeants, ou à leurs époux ou conjoints de fait ou à leurs enfants âgés de moins de dix-huit ans, à ces conditions. | |||
1991, c. 45, s. 484; 1997, c. 15, s. 401; 2000, c. 12, ss. 300, 302. |
1991, ch. 45, art. 484; 1997, ch. 15, art. 401; 2000, ch. 12, art. 300 et 302. |
Current to February 11, 2020 |
306 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Section 485 | Article 485 |
Board approval required
485 (1) Except with the concurrence of at least two thirds of the directors present at a meeting of the board of directors of the company, a company shall not, with respect to a related party of the company referred to in subsection 484(1), |
|
Approbation du conseil
485 (1) Dans le cas dun apparenté visé au paragraphe 484(1), la société ne peut, sauf approbation dau moins les deux tiers des administrateurs présents à la réunion du conseil : | ||
(a) make, take an assignment of or otherwise acquire a loan to the related party, including a margin loan referred to in section 486, |
a) lui consentir ou en acquérir un prêt, notamment par cession, y compris le prêt sur marge visé à larticle 486, | |||
(b) make a guarantee on behalf of the related party, or |
b) consentir une garantie en son nom, | |||
(c) make an investment in the securities of the related party |
c) effectuer un placement dans ses titres, | |||
if, immediately following the transaction, the aggregate of |
si lopération avait pour effet de porter à plus de deux pour cent de son capital réglementaire la somme des éléments suivants : | |||
(d) the principal amount of all outstanding loans to the related party that are held by the company and its subsidiaries, other than |
d) le principal de tous les prêts en cours quelle-même et ses filiales détiennent à légard de la personne concernée, à lexception des prêts visés à lalinéa 479b) et, dans le cas dun cadre dirigeant à temps plein, au paragraphe 484(2); | |||
(i) loans referred to in paragraph 479(b), and |
||||
(ii) if the related party is a full-time senior officer of the company, loans to the related party that are permitted by subsection 484(2), |
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(e) the sum of all outstanding amounts guaranteed by the company and its subsidiaries on behalf of the related party, and |
e) lensemble des montants dus garantis par elle-même et ses filiales pour le compte de la personne; | |||
(f) where the related party is an entity, the book value of all investments by the company and its subsidiaries in the securities of the entity |
f) dans le cas où la personne est une entité, la valeur comptable de tous les placements effectués par elle-même et ses filiales dans les titres de celle-ci. | |||
would exceed 2 per cent of the regulatory capital of the company. |
||||
Limit on transactions with directors, officers and their interests | Restrictions applicables aux opérations | |||
(2) A company shall not, with respect to a related party of the company referred to in subsection 484(1), |
(2) Dans le cas dun apparenté visé au paragraphe 484(1), la société ne peut : | |||
(a) make, take an assignment of or otherwise acquire a loan to the related party, including a margin loan referred to in section 486, |
a) lui consentir ou en acquérir un prêt, notamment par cession, y compris le prêt sur marge visé à larticle 486, | |||
(b) make a guarantee on behalf of the related party, or |
b) consentir une garantie en son nom, | |||
(c) make an investment in the securities of the related party |
c) effectuer un placement dans ses titres, | |||
if, immediately following the transaction, the aggregate of |
si lopération avait pour effet de porter à plus de cinquante pour cent de son capital réglementaire la somme des éléments suivants: |
Current to February 11, 2020 |
307 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 485-487 | Articles 485-487 |
(d) the principal amount of all outstanding loans to all related parties of the company referred to in subsection 484(1) that are held by the company and its subsidiaries, other than |
|
d) le principal de tous les prêts en cours quelle-même et ses filiales détiennent à légard de ces personnes, à lexception des prêts visés à larticle 479 et au paragraphe 484(2); | ||
(i) loans referred to in section 479, and |
||||
(ii) loans permitted by subsection 484(2), |
||||
(e) the sum of all outstanding amounts guaranteed by the company and its subsidiaries on behalf of all related parties of the company referred to in subsection 484(1), and |
e) lensemble des montants dus garantis par elle-même et ses filiales pour le compte de toutes les personnes visées au paragraphe 484(1); | |||
(f) the book value of all investments by the company and its subsidiaries in the securities of all entities that are related parties of the company referred to in subsection 484(1) |
f) la valeur comptable de tous les placements effectués par elle-même et ses filiales dans les titres dentités qui sont des apparentés mentionnés au paragraphe 484(1). | |||
would exceed 50 per cent of the regulatory capital of the company. |
||||
Exclusion of de minimis transactions |
Exclusion | |||
(3) Loans, guarantees and investments that are referred to in section 478 shall not be included in calculating the aggregate of loans, guarantees and investments referred to in subsections (1) and (2). |
(3) Les prêts, garanties et placements visés à larticle 478 sont exclus du calcul du total de ceux qui sont visés aux paragraphes (1) et (2). | |||
1991, c. 45, s. 485; 1997, c. 15, s. 402. |
1991, ch. 45, art. 485; 1997, ch. 15, art. 402. | |||
Margin loans
486 The Superintendent may establish terms and conditions with respect to the making by a company of margin loans to a director or senior officer of the company. |
Prêts sur marge
486 Le surintendant peut fixer des conditions relativement aux prêts sur marge consentis par la société à ses administrateurs ou cadres dirigeants. | |||
1991, c. 45, s. 486; 1997, c. 15, s. 403. |
1991, ch. 45, art. 486; 1997, ch. 15, art. 403. | |||
Exemption by order
487 (1) A company may enter into a transaction with a related party of the company if the Superintendent, by order, has exempted the transaction from the provisions of section 477. |
Ordonnance dexemption
487 (1) Est permise toute opération avec un apparenté si le surintendant a, par ordonnance, soustrait cette dernière à lapplication de larticle 477. | |||
Conditions for order
(2) The Superintendent shall not make an order referred to in subsection (1) unless the Superintendent is satisfied that the decision of the company to enter into the transaction has not been and is not likely to be influenced in any significant way by a related party of the company and does not involve in any significant way the interests of a related party of the company. |
Conditions
(2) Pour prendre lordonnance, le surintendant doit être convaincu que lopération naura pas deffet important sur les intérêts de lapparenté et que celui-ci na pas influé grandement sur la décision de la société dy procéder et ne le fera sans doute pas. | |||
1991, c. 45, s. 487; 1996, c. 6, s. 121. |
1991, ch. 45, art. 487; 1996, ch. 6, art. 121. |
Current to February 11, 2020 |
308 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Permitted Related Party Transactions |
Opérations permises | |
Sections 488-490 and 491 | Articles 488-490 et 491 |
Prescribed transactions
488 A company may enter into a transaction with a related party of the company if the transaction is a prescribed transaction or one of a class of prescribed transactions. |
|
Opérations réglementaires
488 Est permise lopération avec un apparenté si celle-ci est réglementaire ou appartient à une catégorie réglementaire. | ||
Restrictions on Permitted Transactions |
Restrictions applicables aux opérations permises | |||
Market terms and conditions
489 (1) Except as provided in subsections 484(4) to (6), any transaction entered into with a related party of the company shall be on terms and conditions that are at least as favourable to the company as market terms and conditions. |
Conditions du marché
489 (1) Sauf dans la mesure prévue aux paragraphes 484(4) à (6), les conditions des opérations permises doivent être au moins aussi favorables pour la société que celles du marché. | |||
Meaning of market terms and conditions
(2) For the purposes of subsection (1), market terms and conditions means |
Définition de conditions du marché
(2) Pour lapplication du paragraphe (1), conditions du marché sentend : | |||
(a) in respect of a service or a loan facility or a deposit facility offered to the public by the company in the ordinary course of business, terms and conditions that are no more or less favourable than those offered to the public by the company in the ordinary course of business; and |
a) concernant un service, un prêt ou un dépôt, de conditions aussi favorables que celles offertes au public par la société dans le cadre normal de son activité commerciale; | |||
(b) in respect of any other transaction, |
b) concernant toute autre opération : | |||
(i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arms length and who are acting prudently, knowledgeably and willingly, or |
(i) des conditions notamment en matière de prix, loyer ou taux dintérêt qui sont vraisemblablement de nature à sappliquer à une opération semblable sur un marché libre dans les conditions nécessaires à une opération équitable entre des parties indépendantes qui traitent librement, prudemment et en toute connaissance de cause, | |||
(ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arms length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the company with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly. |
(ii) si lopération nest vraisemblablement pas de nature à seffectuer sur un marché libre entre des parties indépendantes, des conditions notamment en matière de prix, loyer ou taux dintérêt qui permettraient vraisemblablement à la société den tirer une juste valeur, compte tenu des circonstances, et que des personnes qui traitent librement, prudemment et en toute connaissance de cause pourraient fixer. | |||
1991, c. 45, s. 489; 2001, c. 9, s. 553. |
1991, ch. 45, art. 489; 2001, ch. 9, art. 553. | |||
490 and 491 [Repealed, 1997, c. 15, s. 404] |
490 et 491 [Abrogés, 1997, ch. 15, art. 404] |
Current to February 11, 2020 |
309 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Disclosure |
Obligation dinformation | |
Sections 492-494 | Articles 492-494 |
Disclosure |
|
Obligation dinformation | ||
Company obligation
492 (1) Where, in respect of any proposed transaction permitted by this Part, other than those referred to in section 478, a company has reason to believe that the other party to the transaction is a related party of the company, the company shall take all reasonable steps to obtain from the other party full disclosure, in writing, of any interest or relationship, direct or indirect, that would make the other party a related party of the company. |
Divulgation par lapparenté
492 (1) Dans le cas où elle a des raisons de croire que lautre partie à un projet dopération permise autre que celle visée à larticle 478 est apparentée, la société prend toutes les mesures utiles pour obtenir delle la communication entière, par écrit, de tous intérêts ou relations, directs ou indirects, qui feraient delle un apparenté. | |||
Reliance on information
(2) A company and any person who is a director or an officer, employee or agent of the company may rely on any information contained in any disclosure received by the company pursuant to subsection (1) or any information otherwise acquired in respect of any matter that might be the subject of such a disclosure and no action lies against the company or any such person for anything done or omitted in good faith in reliance on any such information. |
Fiabilité de linformation
(2) La société ou lun de ses administrateurs, dirigeants, employés ou mandataires peut tenir pour avérés les renseignements contenus dans toute communication reçue en application du paragraphe (1) ou obtenus sur toute question pouvant en faire lobjet et nencourt aucune responsabilité pour tout acte ou omission accompli de bonne foi sur le fondement de ces renseignements. | |||
Notice to Superintendent
493 Where a company has entered into a transaction that the company is prohibited by this Part from entering into, or where a company has entered into a transaction for which approval is required under subsection 485(1) without having obtained the approval, the company shall, on becoming aware of that fact, notify the Superintendent without delay. |
Avis au surintendant
493 La société qui effectue une opération interdite aux termes de la présente partie, ou qui na pas obtenu lapprobation prévue au paragraphe 485(1), est tenue, dès quelle prend connaissance de linterdiction ou du défaut dapprobation, den aviser le surintendant. | |||
1991, c. 45, s. 493; 1997, c. 15, s. 405. |
1991, ch. 45, art. 493; 1997, ch. 15, art. 405. | |||
Remedial Actions | Recours | |||
Order to void contract or to grant other remedy
494 (1) If a company enters into a transaction that it is prohibited from entering into by this Part, the company or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate remedy, including an order directing that the related party of the company involved in the transaction account to the company for any profit or gain realized or that any director or senior officer of the company who authorized the transaction compensate the company for any loss or damage incurred by the company. |
Annulation de contrats ou autres mesures
494 (1) Si la société a effectué une opération interdite par la présente partie, elle-même ou le surintendant peuvent demander au tribunal de rendre une ordonnance annulant lopération ou prévoyant toute autre mesure indiquée, notamment lobligation pour lapparenté de rembourser à la société tout gain ou profit réalisé ou pour tout administrateur ou cadre dirigeant qui a autorisé lopération dindemniser la société des pertes ou dommages subis. | |||
Time limit
(2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in section 493 in respect of the transaction is given to |
Délai de présentation
(2) La demande visée au paragraphe (1) doit être présentée dans les trois mois suivant la date denvoi au surintendant de lavis prévu à larticle 493 à légard de lopération en cause ou, à défaut davis, suivant la date où le surintendant a pris connaissance de lopération. |
Current to February 11, 2020 |
310 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XI Self-dealing |
PARTIE XI Opérations avec apparentés | |
Remedial Actions |
Recours | |
Sections 494-499 | Articles 494-499 |
the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction. |
|
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Certificate
(3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof. |
Certificat
(3) Pour lapplication du paragraphe (2), le document apparemment délivré par le surintendant et attestant la date où il a pris connaissance de lopération fait foi de façon concluante, sauf preuve contraire, de ce fait, sans quil soit nécessaire de prouver lauthenticité de la signature qui y est apposée ou la qualité officielle du signataire. | |||
1991, c. 45, s. 494; 2001, c. 9, s. 554. |
1991, ch. 45, art. 494; 2001, ch. 9, art. 554. | |||
PART XII |
PARTIE XII | |||
Regulation of Companies Superintendent |
Réglementation des sociétés : surintendant | |||
Supervision | Surveillance | |||
Returns | Relevés | |||
Required information
495 A company shall provide the Superintendent with such information, at such times and in such form as the Superintendent may require. |
Demande de renseignements
495 La société fournit au surintendant, aux dates et en la forme précisées, les renseignements quil exige. | |||
496 [Repealed, 2007, c. 6, s. 379] | 496 [Abrogé, 2007, ch. 6, art. 379] | |||
497 [Repealed, 2007, c. 6, s. 379] | 497 [Abrogé, 2007, ch. 6, art. 379] | |||
498 [Repealed, 2007, c. 6, s. 379] |
498 [Abrogé, 2007, ch. 6, art. 379] | |||
Names of directors and auditors
499 (1) A company shall, within thirty days after each annual meeting of the company, provide the Superintendent with a return showing |
Relevé des noms des administrateurs
499 (1) Dans les trente jours suivant chaque assemblée annuelle, la société fournit au surintendant un relevé indiquant : | |||
(a) the name, residence and citizenship of each director holding office immediately following the meeting; |
a) les noms, domicile et citoyenneté de chaque administrateur en fonction à la clôture de lassemblée; | |||
(b) the mailing address of each director holding office immediately following the meeting; |
b) ladresse postale de chaque administrateur en fonction à la clôture de lassemblée; | |||
(c) the bodies corporate of which each director referred to in paragraph (a) is an officer or director and the firms of which each director is a member; |
c) les personnes morales dont chacun des administrateurs visés à lalinéa a) est un dirigeant ou administrateur et les entreprises dont chacun dentre eux est membre; | |||
(d) the affiliation, within the meaning of section 166, with the company of each director referred to in paragraph (a); |
d) lappartenance au même groupe quelle, au sens de larticle 166, de chaque administrateur visé à lalinéa a); |
Current to February 11, 2020 |
311 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 499-501 | Articles 499-501 |
(e) the names of the directors referred to in paragraph (a) who are officers or employees of the company or any affiliate of the company, and the positions they occupy; |
|
e) le nom des administrateurs visés à lalinéa a) qui sont des dirigeants ou employés de la société ou des entités de son groupe et le poste quils occupent; | ||
(f) the name of each committee of the company on which each director referred to in paragraph (a) serves; |
f) le nom de chaque comité de la société dont fait partie un administrateur visé à lalinéa a); | |||
(g) the date of expiration of the term of each director referred to in paragraph (a); and |
g) la date dexpiration du mandat de chaque administrateur visé à lalinéa a); | |||
(h) the name, address and date of appointment of the auditor of the company. |
h) les nom, adresse et date de nomination du vérificateur de la société. | |||
Changes |
Avis des changements | |||
(2) Where
(a) any information relating to a director or auditor of a company shown in the latest return made to the Superintendent under subsection (1), other than information referred to in paragraph (1)(c) or (d), becomes inaccurate or incomplete, |
(2) Au cas où les renseignements concernant un administrateur ou le vérificateur, sauf en ce qui a trait aux alinéas (1)c) ou d), deviennent inexacts ou incomplets ou en cas de vacance ou de nomination soit au poste de vérificateur soit au sein du conseil dadministration, la société fournit sans délai au surintendant les renseignements nécessaires pour compléter le relevé ou en rétablir lexactitude. | |||
(b) a vacancy in the position of auditor of the company occurs or is filled by another person, or |
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(c) a vacancy on the board of directors of the company occurs or is filled, |
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the company shall forthwith provide the Superintendent with such information as is required to maintain the return in a complete and accurate form. |
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Copy of by-laws |
Exemplaire des règlements administratifs | |||
500 A company shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment. |
500 La société transmet au surintendant, dans les trente jours de leur entrée en vigueur, un exemplaire de chaque règlement administratif ou de sa modification. | |||
1991, c. 45, s. 500; 2001, c. 9, s. 556. |
1991, ch. 45, art. 500; 2001, ch. 9, art. 556. | |||
Register of companies |
Registre des sociétés | |||
501 (1) The Superintendent shall, in respect of each company for which an order approving the commencement and carrying on of business has been made, cause a register to be maintained containing a copy of |
501 (1) Pour toute société à qui a été délivré un agrément de fonctionnement, le surintendant fait tenir un registre contenant : | |||
(a) the incorporating instrument of the company; and |
a) un exemplaire de lacte constitutif de la société; | |||
(b) the information referred to in paragraphs 499(1)(a), (c) and (e) to (h) contained in the latest return sent to the Superintendent under section 499. |
b) les renseignements visés aux alinéas 499(1)a), c) et e) à h) du dernier relevé reçu au titre de larticle 499. | |||
Form |
Forme du registre | |||
(2) The register may be maintained in | (2) Le registre peut être tenu : |
Current to February 11, 2020 |
312 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 501-502 | Articles 501-502 |
(a) a bound or loose-leaf form or in a photographic film form; or |
|
a) soit dans une reliure, en feuillets mobiles ou sous forme de film; | ||
(b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time. |
b) soit à laide de tout procédé mécanique ou électronique de traitement des données ou de mise en mémoire de linformation susceptible de donner, dans un délai raisonnable, les renseignements demandés sous une forme écrite compréhensible. | |||
Access |
Accès | |||
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it. |
(3) Toute personne a un droit daccès raisonnable au registre et peut le reproduire en tout ou en partie. | |||
Evidence |
Preuve | |||
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent. |
(4) Le document censé signé par le surintendant, où il est fait état de renseignements figurant dans le registre, est admissible en preuve devant les tribunaux sans quil soit nécessaire de prouver lauthenticité de la signature qui y est apposée ou la qualité officielle du signataire et, sauf preuve contraire, il fait foi de son contenu. | |||
1991, c. 45, s. 501; 2001, c. 9, s. 556. |
1991, ch. 45, art. 501; 2001, ch. 9, art. 556. | |||
Production of information and documents |
Fourniture de renseignements | |||
502 (1) The Superintendent may, by order, direct a person who controls a company or any entity that is affiliated with a company to provide the Superintendent with such information or documents as may be specified in the order where the Superintendent believes that the production of the information or documents is necessary in order to be satisfied that the provisions of this Act are being duly observed and that the company is in a sound financial condition. |
502 (1) Le surintendant peut, par ordonnance, enjoindre à une personne qui contrôle la société ou à une entité qui appartient au groupe de celle-ci de lui fournir certains renseignements ou documents sil croit en avoir besoin pour sassurer que la présente loi est effectivement respectée et que la situation financière de la société est bien saine. | |||
Time |
Délai | |||
(2) Any person to whom a direction has been issued under subsection (1) shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time. |
(2) La personne visée fournit les renseignements ou documents dans le délai prévu dans lordonnance ou, à défaut, dans un délai raisonnable. | |||
Exemption |
Exception | |||
(3) Subsection (1) does not apply in respect of an entity that controls a company or is affiliated with a company where that entity is a financial institution regulated |
(3) Le paragraphe (1) ne sapplique pas à lentité qui contrôle une société ou qui fait partie de son groupe sil sagit dune institution financière réglementée sous le régime : | |||
(a) by or under an Act of Parliament; or |
a) soit dune loi fédérale; | |||
(b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions |
b) soit dune loi provinciale, dans le cas où le surintendant a conclu une entente avec lautorité ou lorganisme public responsable de la supervision des |
Current to February 11, 2020 |
313 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 502-504 | Articles 502-504 |
in that province concerning the sharing of information on such financial institutions. |
|
institutions financières dans la province en ce qui a trait au partage de linformation les concernant. | ||
Confidential information |
Caractère confidentiel des renseignements | |||
503 (1) Subject to section 504.1, all information regarding the business or affairs of a company, or regarding a person dealing with a company, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly. |
503 (1) Sous réserve de larticle 504.1, sont confidentiels et doivent être traités comme tels les renseignements concernant lactivité commerciale et les affaires internes de la société ou concernant une personne faisant affaire avec elle et obtenus par le surintendant ou par toute autre personne agissant sous ses ordres, dans le cadre de lapplication dune loi fédérale, de même que ceux qui sont tirés de tels renseignements. | |||
Disclosure permitted |
Communication autorisée | |||
(2) Nothing in subsection (1) prevents the Superintendent from disclosing any information |
(2) Sil est convaincu que les renseignements seront considérés comme confidentiels par leur destinataire, le surintendant peut toutefois les communiquer : | |||
(a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, |
a) à une agence ou à un organisme gouvernemental qui réglemente ou supervise des institutions financières, à des fins liées à la réglementation ou à la supervision; | |||
(a.01) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, |
a.01) à une autre agence ou à un autre organisme qui réglemente ou supervise des institutions financières, à des fins liées à la réglementation ou à la supervision; | |||
(a.1) to the Canada Deposit Insurance Corporation for purposes related to its operation; and |
a.1) à la Société dassurance-dépôts du Canada pour laccomplissement de ses fonctions; | |||
(b) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Cana-da authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions, |
b) au sous-ministre des Finances, ou à tout fonctionnaire du ministère des Finances que celui-ci a délégué par écrit pour lanalyse de la politique en matière de la réglementation des institutions financières ou au gouverneur de la Banque du Canada, ou à tout fonctionnaire de la Banque du Canada que celui-ci a délégué par écrit pour cette même analyse. | |||
if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed. |
||||
1991, c. 45, s. 503; 1996, c. 6, s. 122; 1997, c. 15, s. 406; 2001, c. 9, s. 557; 2007, c. 6, s. 380. |
1991, ch. 45, art. 503; 1996, ch. 6, art. 122; 1997, ch. 15, art. 406; 2001, ch. 9, art. 557; 2007, ch. 6, art. 380. | |||
Regulations |
Règlements | |||
503.1 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by companies of prescribed supervisory information. |
503.1 Le gouverneur en conseil peut, par règlement, interdire ou restreindre la communication par les sociétés des renseignements relatifs à la supervision exercée par le surintendant qui sont précisés par règlement. | |||
1999, c. 28, s. 144. |
1999, ch. 28, art. 144. | |||
Evidentiary privilege |
Privilège relatif à la preuve | |||
504 (1) Prescribed supervisory information shall not be used as evidence in any civil proceedings and is privileged for that purpose. |
504 (1) Les renseignements relatifs à la supervision exercée par le surintendant qui sont précisés par règlement ne peuvent servir de preuve dans aucune procédure civile et sont protégés à cette fin. |
Current to February 11, 2020 |
314 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 504-504.01 | Articles 504-504.01 |
No testimony or production |
|
Témoignage ou production | ||
(2) No person shall by an order of any court, tribunal or other body be required in any civil proceedings to give oral testimony or to produce any document relating to any prescribed supervisory information. |
(2) Nul ne peut être tenu, par ordonnance dun tribunal ou dun autre organisme, dans quelque procédure civile que ce soit, de faire une déposition orale ou de produire un document ayant trait aux renseignements visés au paragraphe (1). | |||
Exceptions to subsection (1) |
Exceptions au paragraphe (1) | |||
(3) Despite subsection (1), |
(3) Malgré le paragraphe (1) : | |||
(a) the Minister, the Superintendent or the Attorney General of Canada may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings; and |
a) le ministre, le surintendant ou le procureur général du Canada peut, conformément aux éventuels règlements, utiliser comme preuve les renseignements visés à ce paragraphe dans toute procédure; | |||
(b) a company may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings in relation to the administration or enforcement of this Act or the Winding-up and Restructuring Act that are commenced by the company, the Minister, the Superintendent or the Attorney General of Canada. |
b) la société peut, conformément aux éventuels règlements, les utiliser comme preuve dans toute procédure concernant lapplication de la présente loi ou de la Loi sur les liquidations et les restructurations intentée par elle, le ministre, le surintendant ou le procureur général du Canada. | |||
Exceptions to subsections (1) and (2) |
Exceptions aux paragraphes (1) et (2) | |||
(4) Despite subsections (1) and (2) and section 39.1 of the Office of the Superintendent of Financial Institutions Act, a court, tribunal or other body may, by order, require the Minister, the Superintendent or a company to give oral testimony or to produce any document relating to any prescribed supervisory information in any civil proceedings in relation to the administration or enforcement of this Act that are commenced by the Minister, the Superintendent, the Attorney General of Canada or the company. |
(4) Malgré les paragraphes (1) et (2) et larticle 39.1 de la Loi sur le Bureau du surintendant des institutions financières, le ministre, le surintendant ou la société peut être tenu, par ordonnance dun tribunal ou dun autre organisme, dans quelque procédure civile que ce soit concernant lapplication de la présente loi intentée par le ministre, le surintendant, le procureur général du Canada ou la société, de faire une déposition orale ou de produire un document ayant trait aux renseignements visés au paragraphe (1). | |||
No waiver |
Non-renonciation | |||
(5) The disclosure of any prescribed supervisory information, other than under subsection (3) or (4), does not constitute a waiver of the privilege referred to in subsection (1). |
(5) La communication, autrement que dans le cadre des paragraphes (3) ou (4), de renseignements visés au paragraphe (1) ne constitue pas une renonciation à la protection visée à ce paragraphe. | |||
Regulations |
Règlement | |||
(6) The Governor in Council may, for the purposes of subsection (3), make regulations respecting the circumstances in which prescribed supervisory information may be used as evidence. |
(6) Pour lapplication du paragraphe (3), le gouverneur en conseil peut prendre des règlements concernant les circonstances dans lesquelles les renseignements visés au paragraphe (1) peuvent servir de preuve. | |||
1991, c. 45, s. 504; 1996, c. 6, s. 123; 2007, c. 6, s. 381; 2015, c. 36, s. 232. |
1991, ch. 45, art. 504; 1996, ch. 6, art. 123; 2007, ch. 6, art. 381; 2015, ch. 36, art. 232. | |||
No waiver |
Non-renonciation | |||
504.01 (1) For greater certainty, the disclosure by a company or by a person who controls a company or by an entity that is affiliated with a company to the Superintendent of any information that is subject to a privilege under the law of evidence, solicitor-client privilege or the |
504.01 (1) Il est entendu que la communication au surintendant par la société ou par une personne qui contrôle la société ou par une entité qui appartient au groupe de celle-ci de renseignements protégés par toute immunité reconnue par le droit de la preuve, par le |
Current to February 11, 2020 |
315 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 504.01-504.2 | Articles 504.01-504.2 |
professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of any of those privileges or that secrecy. |
|
secret professionnel de lavocat ou du notaire ou par le privilège relatif au litige ne constitue pas une renonciation à limmunité, au secret professionnel ou au privilège. | ||
No disclosure |
Aucune divulgation | |||
(2) The Superintendent shall not disclose any information referred to in subsection (1) to any person whose powers, duties or functions include
(a) the investigation or prosecution of an offence under any Act of Parliament or of the legislature of a province; or |
(2) Il est interdit au surintendant de communiquer un renseignement visé au paragraphe (1) à quiconque dont les attributions comprennent lenquête et la poursuite relatives à une infraction ou à une violation sous le régime de toute loi fédérale ou provinciale. | |||
(b) the investigation of, or conduct of proceedings in respect of, a violation under an Act referred to in paragraph (a). |
||||
2018, c. 27, s. 168. |
2018, ch. 27, art. 168. | |||
Disclosure by Superintendent |
Divulgation du surintendant | |||
504.1 (1) The Superintendent shall disclose at such times and in such manner as the Minister may determine, such information obtained by the Superintendent under this Act as the Minister considers ought to be disclosed for the purposes of the analysis of the financial condition of a company and that
(a) is contained in returns filed pursuant to the Superintendents financial regulatory reporting requirements in respect of companies; or
(b) has been obtained as a result of an industry-wide or sectoral survey conducted by the Superintendent in relation to an issue or circumstances that could have an impact on the financial condition of companies.
|
504.1 (1) Le surintendant rend publics, selon les modalités de forme et de temps fixées par le ministre, les renseignements recueillis en vertu de la présente loi que le ministre juge nécessaire de rendre publics pour lanalyse de létat financier dune société et qui sont contenus dans les déclarations que cette dernière doit fournir au surintendant ou qui ont été obtenus par ce dernier au moyen dune enquête sur le milieu des services financiers ou sur un secteur dactivités en particulier motivée par une question ou des circonstances qui pourraient avoir une incidence sur létat financier des sociétés. | |||
Prior consultation required |
Consultation préalable | |||
(2) The Minister shall consult with the Superintendent before making any determination under subsection (1). |
(2) Le ministre consulte le surintendant avant de prendre une décision au titre du paragraphe (1). | |||
1996, c. 6, s. 124. |
1996, ch. 6, art. 124. | |||
Disclosure by a company |
Divulgation de la société | |||
504.2 (1) A company shall make available to the public such information concerning
(a) the compensation of its executives, as that expression is defined by the regulations, and
(b) its business and affairs for the purpose of the analysis of its financial condition, |
504.2 (1) La société rend publiques les données concernant le traitement de ses dirigeants au sens des règlements ainsi que celles concernant ses activités commerciales et ses affaires internes qui sont nécessaires à lanalyse de son état financier, selon les modalités de forme et de temps fixées par règlement du gouverneur en conseil. | |||
in such form and manner and at such times as may be required by or pursuant to such regulations as the Governor in Council may make for the purpose. |
Current to February 11, 2020 |
316 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Returns |
Relevés | |
Sections 504.2-505 | Articles 504.2-505 |
Exemption by regulation |
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Exemption par règlement | ||
(2) Paragraph (1)(a) does not apply to a company that is within such class or classes of companies as may be prescribed. |
(2) Lobligation relative au traitement des dirigeants ne sapplique pas à la société qui fait partie dune ou de plusieurs catégories prévues par règlement. | |||
1996, c. 6, s. 124. |
1996, ch. 6, art. 124. | |||
Exceptions to disclosure |
Exception | |||
504.3 Subject to any regulations made under section 444, no information obtained by a company regarding any of its customers shall be disclosed or made available under subsection 504.1(1) or section 504.2. |
504.3 Sous réserve des règlements pris en vertu de larticle 444, les renseignements que possède la société sur un client ne tombent pas sous le coup du paragraphe 504.1(1) ou de larticle 504.2. | |||
1996, c. 6, s. 124. |
1996, ch. 6, art. 124. | |||
Report respecting disclosure |
Rapport | |||
504.4 The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by companies and describing the state of progress made in enhancing the disclosure of information in the financial services industry. |
504.4 Le surintendant joint au rapport visé à larticle 40 de la Loi sur le Bureau du surintendant des institutions financières un rapport sur la divulgation des renseignements par les sociétés et faisant état du progrés accompli pour améliorer la divulgation des renseignements sur le milieu des services financiers. | |||
1996, c. 6, s. 124; 2001, c. 9, s. 558. |
1996, ch. 6, art. 124; 2001, ch. 9, art. 558. | |||
Inspection of Companies | Enquête sur les sociétés | |||
Examination of companies |
Examen | |||
505 (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each company that the Superintendent considers to be necessary or expedient to determine whether the company is complying with the provisions of this Act and whether the company is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister. |
505 (1) Afin de vérifier si la société se conforme à la présente loi et si elle est en bonne situation financière, le surintendant, au moins une fois par an, procède ou fait procéder à un examen et à une enquête portant sur lactivité commerciale et les affaires internes de la société et dont il fait rapport au ministre. | |||
Access to records of company |
Droit dobtenir communication des pièces | |||
(2) The Superintendent or a person acting under the Superintendents direction |
(2) Le surintendant ou toute personne agissant sous ses ordres : | |||
(a) has a right of access to any records, cash, assets and security held by or on behalf of a company; and |
a) a accès aux livres, à la caisse, aux autres éléments dactif et aux titres détenus par la société ou pour son compte; | |||
(b) may require the directors, officers and auditor of a company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of the condition and affairs of the company or any entity in which the company has a substantial investment. |
b) peut exiger des administrateurs, dirigeants ou vérificateur quils lui fournissent, dans la mesure du possible, les renseignements et éclaircissements quil réclame sur la situation et les affaires internes de la société ou de toute entité dans laquelle elle détient un intérêt de groupe financier. | |||
1991, c. 45, s. 505; 2001, c. 9, s. 559; 2012, c. 5, s. 180. |
1991, ch. 45, art. 505; 2001, ch. 9, art. 559; 2012, ch. 5, art. 180. |
Current to February 11, 2020 |
317 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Supervision |
Surveillance | |
Inspection of Companies |
Enquête sur les sociétés | |
Sections 506-507 | Articles 506-507 |
Power of Superintendent on inquiry |
|
Pouvoirs du surintendant | ||
506 The Superintendent has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Superintendents direction. |
506 Le surintendant jouit des pouvoirs conférés aux commissaires en vertu de la partie II de la Loi sur les enquêtes pour la réception des dépositions sous serment; il peut les déléguer à une personne agissant sous ses ordres. | |||
Remedial Powers | Réparation | |||
Prudential Agreements | Accords prudentiels | |||
Prudential agreement |
Accord prudentiel | |||
506.1 The Superintendent may enter into an agreement, called a prudential agreement, with a company for the purposes of implementing any measure designed to maintain or improve its safety and soundness. |
506.1 Le surintendant peut conclure un accord, appelé « accord prudentiel », avec une société afin de mettre en uvre des mesures visant à maintenir ou à améliorer sa santé financière. | |||
2001, c. 9, s. 560. |
2001, ch. 9, art. 560. | |||
Directions of Compliance | Décisions | |||
Superintendents directions to company |
Décisions du surintendant | |||
507 (1) Where, in the opinion of the Superintendent, a company, or a person with respect to a company, is committing, or is about to commit, an act that is an unsafe or unsound practice in conducting the business of the company, or is pursuing or is about to pursue any course of conduct that is an unsafe or unsound practice in conducting the business of the company, the Superintendent may direct the company or person to |
507 (1) Sil est davis quune société ou une personne est en train ou sur le point, dans le cadre de la gestion de lactivité commerciale de la société, de commettre un acte ou dadopter une attitude, contraires aux bonnes pratiques du commerce, le surintendant peut lui enjoindre de prendre les mesures suivantes ou lune delles : | |||
(a) cease or refrain from committing the act or pursuing the course of conduct; and |
a) y mettre un terme ou sen abstenir; | |||
(b) perform such acts as in the opinion of the Superintendent are necessary to remedy the situation. |
b) prendre les mesures qui, selon lui, simposent pour remédier à la situation. | |||
Opportunity for representations |
Observations | |||
(2) Subject to subsection (3), no direction shall be issued to a company or person under subsection (1) unless the company or person is provided with a reasonable opportunity to make representations in respect of the matter. |
(2) Sous réserve du paragraphe (3), le surintendant ne peut imposer lobligation visée au paragraphe (1) sans donner la possibilité à la société ou à la personne de présenter ses observations à cet égard. | |||
Temporary direction |
Décision | |||
(3) Where, in the opinion of the Superintendent, the length of time required for representations to be made under subsection (2) might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) and (b) having effect for a period of not more than fifteen days. |
(3) Lorsquà son avis, le délai pour la présentation des observations pourrait être préjudiciable à lintérêt public, le surintendant peut imposer les obligations visées aux alinéas (1)a) et b) pour une période dau plus quinze jours. |
Current to February 11, 2020 |
318 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Directions of Compliance |
Décisions | |
Sections 507-509.1 | Articles 507-509.1 |
Idem |
|
Idem | ||
(4) Subject to section 508, a temporary direction under subsection (3) continues to have effect after the expiration of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the company or person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction. |
(4) Sous réserve de larticle 508, la décision ainsi prise reste en vigueur après lexpiration des quinze jours si aucune observation na été présentée dans ce délai ou si le surintendant avise la société ou la personne quil nest pas convaincu que les observations présentées justifient la révocation de la décision. | |||
508 [Repealed, 1996, c. 6, s. 125] |
508 [Abrogé, 1996, ch. 6, art. 125] | |||
Court enforcement |
Exécution judiciaire | |||
509 (1) Where a company or person
(a) is contravening or has failed to comply with a prudential agreement entered into under section 506.1 or a direction of the Superintendent issued to the company or person pursuant to subsection 507(1) or (3),
(b) is contravening this Act, or
(c) has omitted to do any thing under this Act that is required to be done by or on the part of the company or person, |
509 (1) En cas de manquement soit à un accord prudentiel conclu en vertu de larticle 506.1, soit à une décision prise aux termes des paragraphes 507(1) ou (3), soit à une disposition de la présente loi notamment une obligation , le surintendant peut, en plus de toute autre mesure quil est déjà habilité à prendre sous le régime de celle-ci, demander à un tribunal de rendre une ordonnance obligeant la société ou personne en faute à mettre fin ou remédier au manquement, ou toute autre ordonnance quil juge indiquée en lespèce. | |||
the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the company or person to comply with the prudential agreement or direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit. |
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Appeal |
Appel | |||
(2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court. |
(2) Lordonnance ainsi rendue peut être portée en appel, de la même façon, devant la juridiction compétente pour juger en appel toute autre ordonnance du tribunal. | |||
1991, c. 45, s. 509; 2001, c. 9, s. 561. |
1991, ch. 45, art. 509; 2001, ch. 9, art. 561. | |||
Disqualification and Removal of Directors or Senior Officers |
Rejet des candidatures et destitution | |||
Meaning of senior officer |
Définition de cadre dirigeant | |||
509.01 In sections 509.1 and 509.2, senior officer means the chief executive officer, secretary, treasurer or controller of a company or any other officer reporting directly to the companys board of directors or chief executive officer. |
509.01 Pour lapplication des articles 509.1 et 509.2, cadre dirigeant sentend du premier dirigeant, du secrétaire, du trésorier ou du contrôleur dune société ou de tout autre dirigeant relevant directement de son conseil dadministration ou de son premier dirigeant. | |||
2001, c. 9, s. 562. |
2001, ch. 9, art. 562. | |||
Application |
Application | |||
509.1 (1) This section applies only in respect of a company |
509.1 (1) Le présent article sapplique à la société : |
Current to February 11, 2020 |
319 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Disqualification and Removal of Directors or Senior Officers |
Rejet des candidatures et destitution | |
Section 509.1 | Article 509.1 |
(a) that has been notified by the Superintendent that this section applies to it where the company is subject to measures designed to maintain or improve its safety and soundness, which measures
(i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the companys business, or
(ii) are contained in a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent; or |
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a) soit avisée par le surintendant de son assujettissement au présent article dans les cas où elle est visée par des mesures prises pour maintenir ou améliorer sa santé financière, lesquelles mesures figurent dans un accord prudentiel conclu en vertu de larticle 506.1 ou dans un engagement quelle a donné au surintendant, ou prennent la forme de conditions ou restrictions accessoires à lordonnance dagrément lui permettant de commencer à fonctionner; | ||
(b) that is the subject of a direction made under section 507 or an order made under subsection 473(3). |
b) soit visée par une décision prise aux termes de larticle 507 ou par une ordonnance prise en application du paragraphe 473(3). | |||
Information to be provided |
Renseignements à communiquer | |||
(2) A company shall provide the Superintendent with the name of |
(2) La société communique au surintendant le nom : | |||
(a) each person who has been nominated for election or appointment as a member of its board of directors, |
a) des candidats à une élection ou à une nomination au conseil dadministration; | |||
(b) each person who has been selected by the company for appointment as a senior officer, and |
b) des personnes quelle a choisies pour être nommées à un poste de cadre dirigeant; | |||
(c) each person who is newly elected as a director of the company at a meeting of shareholders and who was not proposed for election by anyone involved in the management of the company, |
c) de toute personne nouvellement élue au poste dadministrateur à une assemblée des actionnaires et dont la candidature navait pas été proposée par une personne occupant un poste de gestion. | |||
together with such other information about the background, business record and experience of the person as the Superintendent may require. |
Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel quil peut exiger. | |||
When information to be provided |
Préavis | |||
(3) The information required by subsection (2) shall be provided to the Superintendent |
(3) Les renseignements doivent parvenir au surintendant : | |||
(a) at least thirty days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or |
a) dans le cas dune personne visée aux alinéas (2)a) ou b), au moins trente jours avant la date prévue pour lélection ou la nomination ou dans le délai plus court fixé par le surintendant; | |||
(b) in the case of a person referred to in paragraph (2)(c), within fifteen days after the date of the election of the person. |
b) dans le cas dune personne visée à lalinéa (2)c), dans les quinze jours suivant la date de lélection de celle-ci. | |||
Disqualification or removal |
Absence de qualification | |||
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order |
(4) Le surintendant peut par ordonnance, en se fondant sur la compétence, lexpérience, le dossier professionnel, la conduite, la personnalité ou la moralité des personnes en cause : |
Current to February 11, 2020 |
320 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Disqualification and Removal of Directors or Senior Officers |
Rejet des candidatures et destitution | |
Sections 509.1-509.2 | Articles 509.1-509.2 |
(a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a company or from being appointed as a senior officer; or |
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a) dans les cas visés aux alinéas (2)a) ou b), écarter le nom de celles qui, à son avis, ne sont pas qualifiées pour occuper un poste dadministrateur ou de cadre dirigeant; | ||
(b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the company. |
b) dans le cas visé à lalinéa (2)c), destituer du poste dadministrateur celles quil nestime pas qualifiées. | |||
Risk of prejudice |
Risque de préjudice | |||
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be. |
(4.1) Dans lexercice du pouvoir visé au paragraphe (4), le surintendant doit prendre en considération la question de savoir si lentrée en fonctions de la personne ou le fait quelle continue doccuper son poste nuira vraisemblablement aux intérêts des déposants et créanciers de la société. | |||
Representations may be made |
Observations | |||
(5) The Superintendent must in writing notify the person concerned and the company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter. |
(5) Le surintendant donne un préavis écrit à la personne concernée et à la société relativement à toute mesure quil entend prendre aux termes du paragraphe (4) et leur donne loccasion de présenter leurs observations dans les quinze jours suivant la date de ce préavis ou dans le délai supérieur quil peut fixer. | |||
Prohibition |
Interdiction | |||
(6) Where an order has been made under subsection (4) |
(6) Il est interdit : | |||
(a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the company shall not permit the person to be, elected or appointed to the position; or |
a) aux personnes assujetties à une ordonnance prise en vertu de lalinéa (4)a) de se faire élire ou nommer au poste pour lequel elles nont pas été jugées qualifiées et à la société de permettre quelles se fassent élire ou nommer; | |||
(b) removing a director from office, the person shall not continue to hold, and the company shall not permit the person to continue to hold, office as a director. |
b) aux personnes assujetties à une ordonnance prise en vertu de lalinéa (4)b) de continuer à occuper le poste dadministrateur et à la société de les laisser continuer doccuper le poste. | |||
1996, c. 6, s. 126; 2001, c. 9, s. 563. |
1996, ch. 6, art. 126; 2001, ch. 9, art. 563. | |||
Removal of directors or senior officers |
Destitution des administrateurs et des cadres dirigeants | |||
509.2 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a company if the Superintendent is of the opinion that the person is not suitable to hold that office |
509.2 (1) Le surintendant peut, par ordonnance, destituer une personne de son poste dadministrateur ou de cadre dirigeant dune société sil est davis, en se fondant sur un ou plusieurs des éléments ci-après, quelle nest pas qualifiée pour occuper ce poste : | |||
(a) on the basis of the competence, business record, experience, conduct or character of the person; or |
a) sa compétence, son expérience, son dossier professionnel, sa conduite, sa personnalité ou sa moralité; | |||
(b) because the person has contravened or, by action or negligence, has contributed to the contravention of |
b) le fait quelle a contrevenu ou a contribué par son action ou sa négligence à contrevenir : | |||
(i) this Act or the regulations made under it, |
Current to February 11, 2020 |
321 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Disqualification and Removal of Directors or Senior Officers |
Rejet des candidatures et destitution | |
Section 509.2 | Article 509.2 |
(ii) a direction made under section 507, |
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(i) à la présente loi ou à ses règlements, | ||
(iii) an order made under subsection 473(3), |
(ii) à une décision prise aux termes de larticle 507, | |||
(iv) a condition or limitation in respect of the order approving the commencement and carrying on the companys business, or |
(iii) à une ordonnance prise en vertu du paragraphe 473(3),(iv) aux conditions ou restrictions accessoires à lordonnance dagrément permettant à la société de commencer à fonctionner, | |||
(v) a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent. |
(v) à un accord prudentiel conclu en vertu de larticle 506.1 ou à un engagement que la société a donné au surintendant. | |||
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the company have been or are likely to be prejudiced by the persons holding office as a director or senior officer. |
Risque de préjudice
(2) Dans lexercice du pouvoir visé au paragraphe (1), le surintendant doit prendre en considération la question de savoir si le fait que la personne occupe le poste a nui aux intérêts des déposants et créanciers de la société ou y nuira vraisemblablement. | |||
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter. |
Observations
(3) Le surintendant donne un préavis écrit à la personne concernée et à la société relativement à lordonnance de destitution quil entend prendre en vertu du paragraphe (1) et leur donne loccasion de présenter leurs observations dans les quinze jours suivant la date de ce préavis ou dans le délai supérieur quil peut fixer. | |||
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period. |
Suspension
(4) Lorsque, à son avis, le fait pour ladministrateur ou le cadre dirigeant dexercer les attributions de son poste pendant le délai prévu pour la présentation des observations nuira vraisemblablement à lintérêt public, le surintendant peut prendre une ordonnance ayant pour effet de suspendre celui-ci pour une période qui ne peut dépasser de plus de dix jours le délai prévu. | |||
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the company of a removal order or suspension order. |
Avis
(5) Le surintendant avise sans délai ladministrateur ou le cadre dirigeant, selon le cas, et la société de lordonnance de destitution ou de suspension. | |||
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order. |
Effet de lordonnance de destitution
(6) Ladministrateur ou le cadre dirigeant, selon le cas, cesse doccuper son poste dès la prise de lordonnance de destitution ou à la date postérieure qui y est précisée. | |||
Appeal
(7) The director or senior officer, as the case may be, or the company may, within 30 days after the date of receipt |
Appel
(7) Ladministrateur ou le cadre dirigeant, selon le cas, ou la société peuvent interjeter appel à la Cour fédérale |
Current to February 11, 2020 |
322 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Disqualification and Removal of Directors or Senior Officers |
Rejet des candidatures et destitution | |
Sections 509.2-510 | Articles 509.2-510 |
of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court. |
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de lordonnance de destitution, dans les trente jours suivant la date de réception de lavis donné au titre du paragraphe (5) ou dans le délai supérieur que la Cour peut accorder. | ||
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order. |
Pouvoirs de la Cour fédérale
(8) La Cour fédérale statue sur lappel soit par le rejet pur et simple de celui-ci, soit par lannulation de lordonnance de destitution. | |||
Order not stayed by appeal
(9) A removal order is not stayed by an appeal. |
Appel non suspensif
(9) Lappel nest pas suspensif. | |||
2001, c. 9, s. 564. |
2001, ch. 9, art. 564. | |||
Supervisory Intervention | Surveillance et intervention | |||
Superintendent may take control
510 (1) Subject to this Act, where any of the circumstances described in subsection (1.1) exist in respect of a company, the Superintendent may |
Prise de contrôle
510 (1) Sous réserve des autres dispositions de la présente loi, le surintendant peut, dans les circonstances visées au paragraphe (1.1) : | |||
(a) take control, for a period not exceeding sixteen days, of the assets of the company and the assets held in trust by or under the administration of the company; or |
a) prendre le contrôle pendant au plus seize jours de lactif dune société ainsi que de lactif quelle détient en fiducie ou quelle administre; | |||
(b) unless the Minister advises the Superintendent that the Minister is of the opinion that it is not in the public interest to do so, |
b) sauf avis contraire du ministre fondé sur lintérêt public, en prendre le contrôle pour plus de seize jours, continuer den assumer le contrôle au-delà de ce terme ou prendre le contrôle de la société. | |||
(i) take control, for a period exceeding sixteen days, of the assets of the company and the assets held in trust by or under the administration of the company, |
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(ii) where control of assets has been taken under paragraph (a), continue the control beyond the sixteen days referred to in that paragraph, or |
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(iii) take control of the company. |
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Circumstances for taking control |
Circonstances permettant la prise de contrôle | |||
(1.1) Control by the Superintendent under subsection (1) may be taken in respect of a company where |
(1.1) Le surintendant peut prendre le contrôle visé au paragraphe (1) à légard de la société : | |||
(a) the company has failed to pay its liabilities or, in the opinion of the Superintendent, will not be able to pay its liabilities as they become due and payable; |
a) qui a omis de payer une dette exigible ou qui, à son avis, ne pourra payer ses dettes au fur et à mesure quelles deviendront exigibles; | |||
(b) [Repealed, 2001, c. 9, s. 565] |
b) [Abrogé, 2001, ch. 9, art. 565] | |||
(c) the assets of the company are not, in the opinion of the Superintendent, sufficient to give adequate protection to the companys depositors and creditors; |
c) qui na pas un actif suffisant, à son avis, pour assurer une protection adéquate à ses déposants et créanciers; |
Current to February 11, 2020 |
323 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Supervisory Intervention |
Surveillance et intervention | |
Section 510 | Article 510 |
(d) any asset appearing on the books or records of the company or held in trust by or under the administration of the company is not, in the opinion of the Superintendent, satisfactorily accounted for; |
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d) dont un élément dactif figurant dans ses livres, détenu en fiducie ou quelle administre nest pas, à son avis, correctement pris en compte; | ||
(e) the regulatory capital of the company has, in the opinion of the Superintendent, reached a level or is eroding in a manner that may detrimentally affect the companys depositors or creditors; |
e) dont le capital réglementaire a, à son avis, atteint un seuil ou se dégrade au point où ses déposants ou ses créanciers risquent dêtre lésés; | |||
(f) the company has failed to comply with an order of the Superintendent under paragraph 473(3)(a); |
f) qui na pas suivi lordonnance quil a prise en vertu du paragraphe 473(3) lui enjoignant daugmenter son capital; | |||
(g) the companys deposit insurance has been terminated by the Canada Deposit Insurance Corporation; or |
g) dont la police dassurance-dépôts a été résiliée par la Société dassurance-dépôts du Canada; | |||
(h) in the opinion of the Superintendent, any other state of affairs exists in respect of the company that may be materially prejudicial to the interests of the companys depositors or creditors or the beneficiaries of any trust under the companys administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the company. |
h) où, à son avis, il existe une autre situation qui risque de porter un préjudice réel aux intérêts de ses déposants ou créanciers, ou aux bénéficiaires dune fiducie quelle administre, y compris lexistence de procédures engagées, au Canada ou à létranger, à légard de sa société mère au titre du droit relatif à la faillite ou à linsolvabilité. | |||
Notice of proposed action
(1.2) The Superintendent must notify a company of any action proposed to be taken in respect of it under paragraph (1)(b) and of its right to make written representations to the Superintendent within the time specified in the notice not exceeding ten days after it receives the notice. |
Avis
(1.2) Le surintendant avise la société avant de prendre la mesure visée à lalinéa (1)b) et lui fait part de son droit de faire valoir ses observations par écrit dans le délai quil fixe ou, au plus tard, dix jours après réception de lavis. | |||
Objectives of Superintendent
(2) Where, pursuant to subsection (1), the Superintendent has control of the assets of a company referred to in that subsection, the Superintendent may do all things necessary or expedient to protect the rights and interests of the depositors and creditors of the company or the beneficiaries of any trust under the administration of the company. |
Objectifs du surintendant
(2) Après avoir pris le contrôle de lactif dune société en vertu du paragraphe (1), le surintendant peut prendre toutes les mesures utiles pour protéger les droits et intérêts des déposants et créanciers de celle-ci ou des bénéficiaires des fiducies dont elle a ladministration. | |||
Powers of Superintendent
(3) Where, pursuant to subsection (1), the Superintendent has control of the assets of a company referred to in that subsection, |
Pouvoirs du surintendant
(3) Lorsque le surintendant a le contrôle de lactif de la société visé au paragraphe (1) : | |||
(a) the company shall not make, acquire or transfer any loan or make any purchase, sale or exchange of securities or any disbursement or transfer of cash of any kind without the prior approval of the Superintendent or a representative designated by the Superintendent; and |
a) celle-ci ne peut consentir, acquérir ou céder de prêt, ni faire dachat, de vente ou déchange de valeurs mobilières, ni procéder à des sorties ou virements de fonds de quelque sorte que ce soit, sans lapprobation préalable du surintendant ou de son délégué; |
Current to February 11, 2020 |
324 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Supervisory Intervention |
Surveillance et intervention | |
Sections 510-515 | Articles 510-515 |
(b) no director, officer or employee of the company shall have access to any cash or securities held by or under the administration of the company unless
(i) a representative of the Superintendent accompanies the director, officer or employee, or
(ii) the access is previously authorized by the Superintendent or the Superintendents representative. |
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b) aucun administrateur, dirigeant ou employé de la société na accès à lencaisse ou aux valeurs mobilières détenues par la société ou dont elle a ladministration, à moins dêtre accompagné dun délégué du surintendant, ou dy avoir été préalablement autorisé par le surintendant ou son délégué. | ||
1991, c. 45, s. 510; 1996, c. 6, s. 127; 2001, c. 9, s. 565. |
1991, ch. 45, art. 510; 1996, ch. 6, art. 127; 2001, ch. 9, art. 565. | |||
511 to 513 [Repealed, 1996, c. 6, s. 128] |
511 à 513 [Abrogés, 1996, ch. 6, art. 128] | |||
Powers of directors and officers suspended
514 (1) Where the Superintendent takes control of a company pursuant to subparagraph 510(1)(b)(iii), the powers, duties, functions, rights and privileges of the directors of the company and of the officers of the company responsible for its management are suspended. |
Suspension des pouvoirs et fonctions
514 (1) Lorsque le surintendant prend le contrôle de la société, les pouvoirs, fonctions, droits et privilèges des administrateurs et dirigeants responsables de sa gestion sont suspendus. | |||
Superintendent to manage company
(2) Where the Superintendent takes control of a company pursuant to subparagraph 510(1)(b)(iii), the Superintendent shall manage the business and affairs of the company and in so doing the Superintendent
(a) may perform any of the duties and functions that the persons referred to in subsection (1) were performing prior to the taking of control; and
(b) has and may exercise any power, right or privilege that any such person had or could have exercised prior to the taking of control. |
Gestion par le surintendant
(2) Le surintendant doit gérer les activités commerciales et les affaires internes de la société dont il a pris le contrôle; à cette fin, il est chargé des attributions antérieurement exercées par les personnes mentionnées au paragraphe (1) et se voit attribuer tous les droits et privilèges qui leur étaient alors dévolus. | |||
Persons to assist
(3) Where the Superintendent takes control of a company pursuant to subparagraph 510(1)(b)(iii), the Superintendent may appoint one or more persons to assist in the management of the company. |
Aide
(3) Le cas échéant, le surintendant peut nommer une ou plusieurs personnes pour laider à la gérer. | |||
1991, c. 45, s. 514; 1996, c. 6, s. 129. |
1991, ch. 45, art. 514; 1996, ch. 6, art. 129. | |||
Expiration of control
515 Control by the Superintendent under subsection 510(1) of a company or of the assets of a company and the assets held in trust by or under the administration of the company expires on the day on which a notice by the Superintendent is sent to the directors and officers who conducted the business and affairs of the company stating that the Superintendent is of the opinion that the circumstances leading to the taking of control by the Superintendent have been substantially rectified and that the company can resume control of its business and affairs. |
Fin du contrôle
515 Le contrôle pris en vertu du paragraphe 510(1) se termine à la date dexpédition dun avis du surintendant aux administrateurs et dirigeants en poste avant la prise de contrôle indiquant quil est davis que la situation motivant la prise de contrôle a été en grande partie corrigée et que la société peut reprendre le contrôle de ses activités commerciales et de ses affaires internes. | |||
1991, c. 45, s. 515; 1996, c. 6, s. 129. |
1991, ch. 45, art. 515; 1996, ch. 6, art. 129. |
Current to February 11, 2020 |
325 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Supervisory Intervention |
Surveillance et intervention | |
Sections 515.1-517 |
Articles 515.1-517 |
Superintendent may request winding-up
515.1 The Superintendent may, at any time before the receipt of a request under section 516 to relinquish control of a company or of the assets of a company and the assets held in trust by or under the administration of the company, request the Attorney General of Canada to apply for a winding-up order under section 10.1 of the Winding-up and Restructuring Act in respect of the company where
(a) the assets of the company and the assets held in trust by or under the administration of the company are under the control of the Superintendent pursuant to subparagraph 510(1)(b)(i) or (ii); or
(b) the company is under the control of the Superintendent pursuant to subparagraph 510(1)(b)(iii).
1996, c. 6, s. 129. |
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Liquidation
515.1 Le surintendant peut demander au procureur général du Canada de requérir lordonnance de mise en liquidation prévue à larticle 10.1 de la Loi sur les liquidations et les restructurations à légard :
a) soit dune société dont lactif ainsi que lactif quelle détient en fiducie ou quelle administre sont sous son contrôle en vertu de lalinéa 510(1)b);
b) soit dune société sous son contrôle en vertu de cet alinéa.
1996, ch. 6, art. 129. | ||
Requirement to relinquish control
516 Where no action has been taken by the Superintendent under section 515.1 and, after thirty days following the taking of control by the Superintendent under subsection 510(1) of a company or of the assets of a company and the assets held in trust by or under the administration of the company, the Superintendent receives from its board of directors a notice in writing requesting the Superintendent to relinquish control, the Superintendent must, not later than twelve days after receipt of the notice,
(a) comply with the request; or
(b) request the Attorney General of Canada to apply for a winding-up order under section 10.1 of the Winding-up and Restructuring Act in respect of the company.
1991, c. 45, s. 516; 1996, c. 6, s. 129. |
Abandon du contrôle ou demande de mise en liquidation
516 Sil na pris aucune des mesures prévues à larticle 515.1, le surintendant doit, douze jours après réception de la requête écrite du conseil dadministration demandant la fin du contrôle et présentée au plus tôt trente jours après la prise de contrôle de la société ou de son actif ainsi que de lactif quelle détient en fiducie ou quelle administre, soit abandonner le contrôle, soit demander au procureur général du Canada de requérir, à lendroit de la société, lordonnance de mise en liquidation prévue à larticle 10.1 de la Loi sur les liquidations et les restructurations.
1991, ch. 45, art. 516; 1996, ch. 6, art. 129. | |||
Advisory committee
517 The Superintendent may, from among the companies that are subject to an assessment under section 23 of the Office of the Superintendent of Financial Institutions Act and required to share in the expenses resulting from the taking of control of a company pursuant to subsection 510(1), appoint a committee of not more than six members to advise the Superintendent in respect of assets, management and all other matters pertinent to the duties and responsibilities of the Superintendent in exercising control of the company.
1991, c. 45, s. 517; 1996, c. 6, s. 129. |
Comité consultatif
517 Le surintendant peut, parmi les sociétés qui sont assujetties à la cotisation prévue à larticle 23 de la Loi sur le Bureau du surintendant des institutions financières et doivent contribuer aux frais résultant de la prise de contrôle dune société, former un comité dau plus six membres pour le conseiller en ce qui concerne lactif, la gestion ou toute autre question afférente à ses devoirs et responsabilités dans lexercice dun tel contrôle.
1991, ch. 45, art. 517; 1996, ch. 6, art. 129. |
Current to February 11, 2020 |
326 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII Regulation of Companies Superintendent |
PARTIE XII Réglementation des sociétés : surintendant | |
Remedial Powers |
Réparation | |
Supervisory Intervention |
Surveillance et intervention | |
Sections 518-520.1 |
Articles 518-520.1 |
Expenses payable by company
518 (1) Where the Superintendent has taken control of a company pursuant to subparagraph 510(1)(b)(iii) and the control expires or is relinquished pursuant to section 515 or paragraph 516(a), the Superintendent may direct that the company be liable for repayment of all or part of the expenses resulting from the taking of control of the company and assessed against and paid by other companies pursuant to section 23 of the Office of the Superintendent of Financial Institutions Act, together with such interest in respect thereof at such rate as is specified by the Superintendent. |
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Frais à la charge de la société
518 (1) Sil abandonne le contrôle dune société ou que celui-ci prend fin aux termes de larticle 515 ou conformément à la requête du conseil dadministration, le surintendant peut ordonner que la société soit tenue de rembourser, en tout ou en partie, les frais résultant de la prise de contrôle qui ont fait lobjet de la cotisation et ont déjà été payés par dautres sociétés en vertu de larticle 23 de la Loi sur le Bureau du surintendant des institutions financières, ainsi que lintérêt afférent au taux fixé par lui. | ||
Debt due to Her Majesty
(2) Where any direction is made under subsection (1), the amount for which the company is liable is a debt due to Her Majesty in right of Canada payable on demand and is recoverable in the Federal Court or any other court of competent jurisdiction.
1991, c. 45, s. 518; 1996, c. 6, s. 130. |
Créance de Sa Majesté
(2) Le montant que la société est tenue de rembourser en vertu du paragraphe (1) constitue une créance de Sa Majesté du chef du Canada payable sur demande et est recouvrable à ce titre devant la Cour fédérale ou tout autre tribunal compétent.
1991, ch. 45, art. 518; 1996, ch. 6, art. 130. | |||
Priority of claim in liquidation
519 In the case of the winding-up of a company, the expenses resulting from the taking of control of the company under subsection 510(1) and assessed against and paid by other companies pursuant to section 23 of the Office of the Superintendent of Financial Institutions Act, and interest in respect thereof at such rate as is specified by the Superintendent, constitute a claim of Her Majesty in right of Canada against the assets of the company that ranks after all other claims but prior to any claim in respect of the shares of the company.
1991, c. 45, s. 519; 1996, c. 6, s. 131(E). |
Priorité de réclamation en cas de liquidation
519 En cas de liquidation de la société, les frais visés au paragraphe 518(1), ainsi que lintérêt afférent au taux fixé par le surintendant, constituent, sur lactif de la société, une créance de Sa Majesté du chef du Canada venant au dernier rang mais avant toute créance sur les actions de la société.
1991, ch. 45, art. 519; 1996, ch. 6, art. 131(A). | |||
Application of assessment
520 Any amount recovered pursuant to section 518 or 519 shall be applied to reduce the total amount of expenses incurred for or in connection with the administration of this Act. |
Réduction
520 Les montants recouvrés conformément aux articles 518 ou 519 sont défalqués du montant total des frais exposés dans le cadre de lapplication de la présente loi. | |||
PART XII.1
Regulation of Companies Commissioner
Required information
520.1 A company shall provide the Commissioner with the information at the times and in the form that the Commissioner may require for the purposes of the administration of the Financial Consumer Agency of Cana-da Act and the consumer provisions.
2001, c. 9, s. 566. |
PARTIE XII.1
Réglementation des sociétés : commissaire
Demande de renseignements
520.1 La société fournit au commissaire, aux dates et en la forme précisées, les renseignements quil exige pour lapplication de la Loi sur lAgence de la consommation en matière financière du Canada et des dispositions visant les consommateurs.
2001, ch. 9, art. 566. |
Current to February 11, 2020 |
327 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII.1 Regulation of Companies Commissioner |
PARTIE XII.1 Réglementation des sociétés : commissaire | |
Sections 520.2-520.3 |
Articles 520.2-520.3 |
Confidential information
520.2 (1) Subject to subsection (2), information regarding the business or affairs of a company or regarding persons dealing with one that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsection 5(1) of the Financial Consumer Agency of Canada Act, and any information prepared from that information, is confidential and shall be treated accordingly. |
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Caractère confidentiel des renseignements
520.2 (1) Sous réserve du paragraphe (2), sont confidentiels et doivent être traités comme tels les renseignements concernant lactivité commerciale et les affaires internes de la société ou concernant une personne faisant affaire avec elle ainsi que les renseignements qui sont tirés de ceux-ci , obtenus par le commissaire ou par toute autre personne exécutant ses directives, dans le cadre de lexercice des attributions visées au paragraphe 5(1) de la Loi sur lAgence de la consommation en matière financière du Canada. | ||
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it
(a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision;
(b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision;
(c) to the Canada Deposit Insurance Corporation for purposes related to its operation; and
(d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Cana-da authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions.
2001, c. 9, s. 566. |
Communication autorisée
(2) Sil est convaincu que les renseignements seront traités comme confidentiels par leur destinataire, le commissaire peut les communiquer :
a) à une agence ou à un organisme gouvernemental qui réglemente ou supervise des institutions financières, à des fins liées à la réglementation ou à la supervision;
b) à une autre agence ou à un autre organisme qui réglemente ou supervise des institutions financières, à des fins liées à la réglementation ou à la supervision;
c) à la Société dassurance-dépôts du Canada pour laccomplissement de ses fonctions;
d) au sous-ministre des Finances, ou à tout fonctionnaire du ministère des Finances que celui-ci a délégué par écrit, ou au gouverneur de la Banque du Canada, ou à tout fonctionnaire de la Banque du Canada que celui-ci a délégué par écrit, pour lanalyse de la politique en matière de réglementation des institutions financières.
2001, ch. 9, art. 566. | |||
Examination
520.3 (1) The Commissioner, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry that the Commissioner considers necessary for the purposes of satisfying the Commissioner that the applicable consumer provisions are being complied with and, after the conclusion of each examination and inquiry, shall report on it to the Minister. |
Examen
520.3 (1) Afin de sassurer que la société se conforme aux dispositions visant les consommateurs applicables, le commissaire, à loccasion, mais au moins une fois par an, procède ou fait procéder à un examen et à une enquête dont il fait rapport au ministre. | |||
Access to records of company
(2) The Commissioner or a person acting under the Commissioners direction in carrying out his or her duties under subsection (1)
(a) has a right of access to any records, including electronic records, of a company; and |
Droit dobtenir communication des pièces
(2) Pour lapplication du paragraphe (1), le commissaire ou toute personne agissant sous ses ordres :
a) a accès aux documents, notamment sous forme électronique, de la société; |
Current to February 11, 2020 |
328 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XII.1 Regulation of Companies Commissioner |
PARTIE XII.1 Réglementation des sociétés : commissaire | |
Sections 520.3-521 | Articles 520.3-521 |
(b) may require the directors or officers of a company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of any matter subject to examination or inquiry under subsection (1).
2001, c. 9, s. 566. |
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b) peut exiger des administrateurs ou des dirigeants quils lui fournissent, dans la mesure du possible, les renseignements et éclaircissements quil réclame pour examen ou enquête pour lapplication du paragraphe (1).
2001, ch. 9, art. 566. | ||
Power of Commissioner on inquiry
520.4 The Commissioner, in carrying out his or her duties in relation to consumer provisions, has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Commissioners direction.
2001, c. 9, s. 566. |
Pouvoirs du commissaire
520.4 Le commissaire jouit, pour lapplication des dispositions visant les consommateurs, des pouvoirs conférés aux commissaires en vertu de la partie II de la Loi sur les enquêtes pour la réception des dépositions sous serment; il peut les déléguer à une personne agissant sous ses ordres.
2001, ch. 9, art. 566. | |||
Compliance agreement
520.5 The Commissioner may enter into an agreement, called a compliance agreement, with a company for the purposes of implementing any measure designed to further compliance by it with the consumer provisions.
2001, c. 9, s. 566. |
Accord de conformité
520.5 Le commissaire peut conclure un accord, appelé « accord de conformité », avec une société afin de mettre en uvre des mesures visant à favoriser le respect par celle-ci des dispositions visant les consommateurs.
2001, ch. 9, art. 566. | |||
PART XIII
Administration
Notices and Other Documents
Execution of documents
520.6 Any by-law, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one person for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed or signed by one or more of the persons. The documents if duly executed or signed by all persons required or permitted to sign them are deemed to constitute one document for the purposes of this Act.
2005, c. 54, s. 446. |
PARTIE XIII
Application
Avis et autres documents
Présomption relative à la signature des documents
520.6 Les règlements administratifs, avis, résolutions, demandes, déclarations et autres documents qui doivent ou peuvent être signés par plusieurs personnes pour lapplication de la présente loi peuvent être rédigés en plusieurs exemplaires de même forme, dont chacun est signé par une ou plusieurs de ces personnes. Ces exemplaires dûment signés sont réputés constituer un seul document pour lapplication de la présente loi.
2005, ch. 54, art. 446. | |||
Notice to directors and shareholders
521 A notice or document required by this Act or the regulations or by the incorporating instrument or by-laws of a company to be sent to a shareholder or director of a company may be sent by prepaid mail addressed to, or may be delivered personally to,
(a) the shareholder at the shareholders latest address as shown in the records of the company or its transfer agent; and |
Avis aux administrateurs et aux actionnaires
521 Les avis ou documents dont la présente loi, ses règlements dapplication, lacte constitutif ou les règlements administratifs de la société exigent lenvoi aux actionnaires ou aux administrateurs peuvent être adressés sous pli pré-affranchi ou remis en personne :
a) aux actionnaires, à la dernière adresse figurant dans les livres de la société ou de son agent de transfert; |
Current to February 11, 2020 |
329 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Notices and Other Documents |
Avis et autres documents | |
Sections 521-525 | Articles 521-525 |
(b) the director at the directors latest address as shown in the records of the company or in the latest return made under section 499. |
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b) aux administrateurs, à la dernière adresse figurant dans les livres de la société ou dans le plus récent des relevés visés à larticle 499. | ||
Presumption from return
522 A director named in the latest return sent by a company to the Superintendent under section 499 is presumed for the purposes of this Act to be a director of the company referred to in the return. |
Présomption
522 Les administrateurs nommés dans le dernier relevé reçu par le surintendant sont présumés, pour lapplication de la présente loi, être administrateurs de la société qui y est mentionnée. | |||
Presumption of receipt
523 (1) A notice or document sent by mail in accordance with section 521 to a shareholder or director is deemed to be received by the shareholder or director at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the shareholder or director did not receive the notice or document at that time or at all. |
Idem
523 (1) Les actionnaires ou administrateurs auxquels sont expédiés les avis ou documents obligatoires sont réputés, sauf sil existe des motifs valables à leffet contraire, les avoir reçus à la date normale de livraison par la poste. | |||
Undelivered notices
(2) If a company sends a notice or document to a shareholder in accordance with section 521 and it is returned on two consecutive occasions because the shareholder cannot be found, the company is not required to send any further notices or documents to the shareholder until it is informed in writing of their new address.
1991, c. 45, s. 523; 2005, c. 54, s. 447. |
Retours
(2) La société nest pas tenue denvoyer les avis ou documents qui lui sont retournés deux fois de suite parce que lactionnaire est introuvable, sauf si elle est informée par écrit de sa nouvelle adresse.
1991, ch. 45, art. 523; 2005, ch. 54, art. 447. | |||
Service on a company
524 A notice or document required by this Act to be sent to or served on a company may be sent by registered mail to the head office of the company and, if so sent, is deemed to be received or served at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the company did not receive the notice or document at that time or at all. |
Avis et signification à une société
524 Les avis ou documents à envoyer ou signifier à une société en vertu de la présente loi peuvent lêtre par courrier recommandé à son siège; leur réception ou signification est alors réputée, sauf sil existe des motifs valables à leffet contraire, avoir eu lieu à la date normale de livraison par la poste. | |||
Certificate of company
525 (1) A certificate issued on behalf of a company stating any fact that is set out in the incorporating instrument, the by-laws, the minutes of the meetings of the directors, a committee of directors or the shareholders, or in a contract to which the company is a party, may be signed by a director or an officer of the company. |
Certificat
525 (1) Le certificat délivré pour le compte dune société et énonçant un fait figurant dans lacte constitutif, les règlements administratifs, le procès-verbal dune assemblée ou dune réunion ainsi que dans les contrats auxquels la société est partie peut être signé par tout administrateur ou dirigeant de celle-ci. | |||
Proof of certain cases
(2) When introduced as evidence in any civil, criminal or administrative action or proceeding,
(a) a fact stated in a certificate referred to in subsection (1),
(b) a certified extract from a securities register of a company, or |
Preuve
(2) Dans les poursuites ou procédures civiles, pénales ou administratives, font foi de leur contenu sans quil soit nécessaire de prouver la signature ni la qualité officielle du signataire :
a) les faits énoncés dans le certificat visé au paragraphe (1); |
Current to February 11, 2020 |
330 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Notices and Other Documents |
Avis et autres documents | |
Sections 525-527.1 |
Articles 525-527.1 |
(c) a certified copy of, or an extract from, minutes of a meeting of shareholders, directors or a committee of directors of a company |
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b) les extraits certifiés conformes du registre des valeurs mobilières; | ||
is, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate. |
c) les copies ou extraits certifiés conformes des procès-verbaux des assemblées ou réunions. | |||
Entry in securities register |
Mentions au registre des valeurs mobilières | |||
526 An entry in the securities register of, or on a security certificate issued by, a company is evidence that the person in whose name the security is registered is the owner of the securities described in the register or in the certificate. |
526 Les mentions au registre des valeurs mobilières et sur les certificats de valeurs mobilières émis par la société établissent que les personnes au nom desquelles les valeurs mobilières sont inscrites sont propriétaires des valeurs mentionnées dans le registre ou sur les certificats. | |||
1991, c. 45, s. 526; 2005, c. 54, s. 448(F). |
1991, ch. 45, art. 526; 2005, ch. 54, art. 448(F). | |||
Verification of documents or fact |
Vérification dun document ou dun fait | |||
527 (1) The Superintendent may require that a document or a fact stated in a document that is required by or under this Act to be sent to the Superintendent or to the Minister be verified in accordance with subsection (2). |
527 (1) Le surintendant peut exiger que soit vérifiée lauthenticité de tout document à lui adresser ou au ministre sous le régime de la présente loi, ainsi que de lexactitude de tout fait qui y est énoncé. | |||
Form of proof |
Forme de preuve | |||
(2) A document or fact required by this Act or by the Superintendent to be verified may be verified by affidavit made under oath or by statutory declaration under the Canada Evidence Act before any commissioner for oaths or for taking affidavits. |
(2) La vérification peut seffectuer devant tout commissaire compétent, par voie daffidavit ou de déclaration solennelle faite aux termes de la Loi sur la preuve au Canada. | |||
Alternative means of publication |
Autres modes de publicité | |||
527.1 (1) Anything that is required by a provision of this Act to be published in the Canada Gazette or to be published in any other way may, instead of being published in that way, be published in any manner that may be prescribed for the purpose of that provision. |
527.1 (1) Tout document dont une disposition de la présente loi prévoit la publication, notamment dans la Gazette du Canada, peut être publié selon tout autre mode prévu par règlement pour lapplication de cette disposition. | |||
Alternative means of publishing summaries |
Autres modes de publication des résumés | |||
(2) Anything that is required by a provision of this Act to be summarized in a publication may instead be summarized and published in any manner that may be prescribed for the purpose of that provision. |
(2) Les renseignements qui, aux termes dune disposition de la présente loi, doivent faire lobjet de résumés à publier dans le cadre dune publication peuvent être résumés, et le résumé publié, selon le mode prévu par règlement pour lapplication de cette disposition. | |||
Publication conditions |
Exigences de publication | |||
(3) Any condition under a provision of this Act that something be published in the Canada Gazette or in any other way is satisfied if that thing is published instead in any manner that may be prescribed for the purpose of that provision. |
(3) Toute exigence de publication, notamment dans la Gazette du Canada, prévue par une disposition de la présente loi est satisfaite par la publication selon le mode prévu par règlement pour lapplication de cette disposition. | |||
Current to February 11, 2020 |
331 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Notices and Other Documents |
Avis et autres documents | |
Sections 527.1-527.4 |
Articles 527.1-527.4 |
Other consequences |
Autres conséquences | |||
(4) Where a provision of this Act provides for consequences to follow the publication of something in the Canada Gazette or in any other manner, the same consequences follow the publication of that thing in any other manner that may be prescribed for the purpose of that provision. |
(4) Toute conséquence, prévue par une disposition de la présente loi, découlant de la publication, notamment dans la Gazette du Canada, découle de la même façon du mode de publication prévu par règlement pour lapplication de cette disposition. | |||
1997, c. 15, s. 407. |
1997, ch. 15, art. 407. | |||
Approvals |
Agréments | |||
Definition of approval
527.2 In sections 527.3 to 527.8, approval includes any consent, designation, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent. |
Définition de agrément
527.2 Aux articles 527.3 à 527.8, agrément sentend notamment de toute approbation, désignation, consentement, accord, arrêté, ordonnance, exemption, dispense, prorogation ou prolongation ou autre autorisation accordée sous le régime de la présente loi, par le ministre ou le surintendant, selon le cas; y est assimilée la délivrance de lettres patentes. | |||
2001, c. 9, s. 567; 2007, c. 6, s. 382. |
2001, ch. 9, art. 567; 2007, ch. 6, art. 382. | |||
Matters to take into account Minister |
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Facteurs : ministre | ||
527.3 (1) In addition to any matters or conditions provided for in this Act that are relevant to the granting of an approval, the Minister may, in considering whether to grant the approval, take into account all matters that he or she considers relevant in the circumstances, including |
527.3 (1) Outre les facteurs et conditions prévus par la présente loi qui sont liés à loctroi dun agrément, le ministre peut prendre en compte tous les facteurs quil estime pertinents dans les circonstances avant doctroyer son agrément, notamment : | |||
(a) national security; and |
a) la sécurité nationale; | |||
(b) Canadas international relations and its international legal obligations. |
b) les relations internationales du Canada et ses obligations juridiques internationales. | |||
Matters to take into account Superintendent |
Facteurs : surintendant | |||
(2) In addition to any matters or conditions provided for in this Act that are relevant to the granting of an approval and to any prudential considerations that the Superintendent considers relevant in the circumstances, the Superintendent may, in considering whether to grant the approval, take into account |
(2) Outre les facteurs et conditions prévus par la présente loi qui sont liés à loctroi dun agrément et les considérations de prudence quil estime pertinentes dans les circonstances, le surintendant peut, avant doctroyer son agrément, prendre en compte : | |||
(a) national security; and |
a) la sécurité nationale; | |||
(b) Canadas international relations and its international legal obligations. |
b) les relations internationales du Canada et ses obligations juridiques internationales. | |||
2007, c. 6, s. 382. |
2007, ch. 6, art. 382. | |||
Minister terms, conditions and undertakings |
Ministre : conditions et engagements | |||
527.4 (1) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose any terms and conditions or require any undertaking that the Minister considers appropriate, including any terms, conditions or undertakings specified by the Superintendent to maintain or improve the |
527.4 (1) Sans préjudice de toute autre mesure fondée sur la présente loi, le ministre peut subordonner loctroi de son agrément à la réalisation des conditions et engagements quil estime appropriés, notamment ceux que précise le surintendant afin de mettre en uvre des mesures visant à maintenir ou à améliorer la santé |
Current to February 11, 2020 |
332 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Approvals |
Agréments | |
Sections 527.4-527.5 |
Articles 527.4-527.5 |
safety and soundness of any financial institution regulated under an Act of Parliament to which the approval relates or that might be affected by it. |
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financière de toute institution financière régie par une loi fédérale et visée par lagrément ou susceptible dêtre touchée par celui-ci. | ||
Commissioner supervision of terms, conditions and undertakings |
Commissaire : conditions et engagements | |||
(1.1) If the Minister specifies that the Commissioner is to supervise a company to determine if it is complying with any terms and conditions that are imposed, or undertakings that are required, by the Minister for the protection of the companys customers, the Commissioner may take the same measures that the Commissioner could take if the terms and conditions or undertaking were a consumer provision. |
(1.1) Lorsque le commissaire est tenu par le ministre de superviser une société pour sassurer quelle se conforme à toute condition imposée par celui-ci ou à tout engagement exigé de sa part pour la protection de ses clients, il peut prendre les mêmes mesures que si la condition ou lengagement était une disposition visant les consommateurs. | |||
Superintendent terms, conditions and undertakings |
Surintendant : conditions et engagements | |||
(2) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose any terms and conditions or require any undertaking that the Superintendent considers appropriate. |
(2) Sans préjudice de toute autre mesure fondée sur la présente loi, le surintendant peut subordonner loctroi de son agrément à la réalisation des conditions et engagements quil estime appropriés. | |||
2007, c. 6, s. 382; 2010, c. 12, s. 1861. |
2007, ch. 6, art. 382; 2010, ch. 12, art. 1861. | |||
Revocation, suspension or amendment of approval Minister |
Révocation, suspension ou modification de lagrément du ministre | |||
527.5 (1) The Minister may revoke, suspend or amend any approval granted by the Minister if he or she considers it appropriate to do so. In deciding whether to take any of those actions, the Minister may take into account all matters that he or she considers relevant in the circumstances, including |
527.5 (1) Le ministre peut révoquer, suspendre ou modifier son agrément sil lestime indiqué. Pour ce faire, il peut prendre en compte tous les facteurs quil estime pertinents dans les circonstances, notamment : | |||
(a) national security; and |
a) la sécurité nationale; | |||
(b) Canadas international relations and its international legal obligations. |
b) les relations internationales du Canada et ses obligations juridiques internationales. | |||
Revocation, suspension or amendment of approval Superintendent |
Révocation, suspension ou modification de lagrément du surintendant | |||
(2) The Superintendent may revoke, suspend or amend any approval granted by the Superintendent if he or she considers it appropriate to do so. In deciding whether to take any of those actions, the Superintendent may take into account any prudential considerations that he or she considers relevant in the circumstances and |
(2) Le surintendant peut révoquer, suspendre ou modifier son agrément sil lestime indiqué. Pour ce faire, il peut prendre en compte les considérations de prudence quil estime pertinentes dans les circonstances et les éléments suivants : | |||
(a) national security; and |
a) la sécurité nationale; | |||
(b) Canadas international relations and its international legal obligations. |
b) les relations internationales du Canada et ses obligations juridiques internationales. | |||
Representations |
Observations | |||
(3) Before taking any action under this section, the Minister or the Superintendent, as the case may be, shall give |
(3) Avant de prendre une mesure en application du présent article, le ministre ou le surintendant, selon le |
Current to February 11, 2020 |
333 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Approvals |
Agréments | |
Sections 527.5-527.7 |
Articles 527.5-527.7 |
the person concerned a reasonable opportunity to make representations. |
|
cas, accorde aux intéressés la possibilité de présenter des observations. | ||
2007, c. 6, s. 382. |
2007, ch. 6, art. 382. | |||
Effect of non-compliance on approval |
Effet de la non-réalisation des conditions ou engagements | |||
527.6 (1) Unless otherwise expressly provided in this Act, a failure to comply with a term, condition or undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates. |
527.6 (1) Sauf disposition contraire expresse de la présente loi, la non-réalisation des conditions ou engagements auxquels lagrément est subordonné aux termes dune disposition quelconque de la présente loi ne rend pas celui-ci nul pour autant. | |||
Non-compliance |
Non-réalisation | |||
(2) In addition to any other action that may be taken under this Act, in the case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or the Superintendent, as the case may be, may |
(2) Sans préjudice de toute autre mesure fondée sur la présente loi, en cas de non-réalisation par une personne des conditions ou engagements auxquels lagrément est subordonné aux termes dune disposition quelconque de la présente loi, le ministre ou le surintendant, selon le cas, peut : | |||
(a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or |
a) révoquer, suspendre ou modifier lagrément; | |||
(b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such an application the court may make the order and any other order that it thinks fit. |
b) demander au tribunal une ordonnance enjoignant à cette personne de se conformer aux conditions ou engagements, le tribunal pouvant alors acquiescer à la demande et rendre toute autre ordonnance quil juge opportune. | |||
Representations |
Observations | |||
(3) Before taking any action under subsection (2), the Minister or the Superintendent, as the case may be, shall give the person concerned a reasonable opportunity to make representations. |
(3) Avant de prendre une mesure en application du paragraphe (2), le ministre ou le surintendant, selon le cas, accorde aux intéressés la possibilité de présenter des observations. | |||
Revocation, suspension or amendment |
Révocation, suspension ou modification | |||
(4) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her and may revoke or suspend an undertaking given to him or her or approve its amendment. |
(4) Sur demande des intéressés, le ministre ou le surintendant, selon le cas, peut révoquer, suspendre ou modifier les conditions quil a imposées, ou révoquer ou suspendre les engagements quil a exigés ou en approuver la modification. | |||
2007, c. 6, s. 382. |
2007, ch. 6, art. 382. | |||
Multiple approval other approvals |
Autres agréments | |||
527.7 The Minister or the Superintendent may grant more than one approval, other than letters patent, in a single instrument if he or she considers it appropriate to do so, and if the Minister or Superintendent does so, he or she may specify different effective dates for each of the approvals. |
527.7 Le ministre ou le surintendant peut, sil lestime indiqué, accorder en un seul acte plusieurs agréments, à lexception des lettres patentes. Le cas échéant, il peut préciser une date distincte pour la prise deffet de chacun des agréments. | |||
2007, c. 6, s. 382. |
2007, ch. 6, art. 382. |
Current to February 11, 2020 |
334 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Approvals |
Agréments | |
Sections 527.8-527.9 |
Articles 527.8-527.9 |
Exemption in relation to notices of intention |
Pouvoirs du surintendant à légard des avis dintention | |||
527.8 The Superintendent may, on application, exempt an applicant or applicants from the provisions of this Act respecting the publication of a notice of intention in respect of applications for approvals and impose any terms and conditions respecting the publication of the notice of intention that he or she considers appropriate. |
527.8 Le surintendant peut, sur demande, soustraire lauteur ou les auteurs dune demande dagrément aux dispositions de la présente loi relatives à la publication dun avis dintention concernant les demandes dagrément et y substituer toute condition quil juge appropriée. | |||
2007, c. 6, s. 382. |
2007, ch. 6, art. 382. | |||
Exceptions to Generally Accepted Accounting Principles |
Exception aux principes comptables généralement reconnus | |||
Calculations generally accepted accounting principles |
Calculs principes comptables généralement reconnus | |||
527.81 (1) If, as a result of a change to the accounting principles referred to in subsection 313(4) whether the change is made before or after this section comes into force the Superintendent considers, given any prudential considerations that he or she considers relevant, that any amount, calculation or valuation under this Act or the regulations is not appropriate, the Superintendent may specify the amount that is to be used or the calculation or valuation that is to be performed instead. |
527.81 (1) Si, par suite dun changement apporté avant ou après lentrée en vigueur du présent article aux principes comptables mentionnés au paragraphe 313(4), il est davis, compte tenu des considérations de prudence quil estime pertinentes, quune somme, un calcul ou une évaluation visé par une disposition de la présente loi ou des règlements nest pas approprié, le surintendant peut déterminer la somme à utiliser ou le calcul ou lévaluation à effectuer. | |||
Canada Gazette |
Publication | |||
(2) The Superintendent shall cause a notice of the specification to be published in the Canada Gazette within 60 days after the day on which the specification has effect. |
|
(2) Le surintendant fait publier dans la Gazette du Canada un avis de la détermination visée au paragraphe (1) dans les soixante jours suivant la date où elle prend effet. | ||
Five-year limit |
Période de validité | |||
(3) The specification ceases to have effect on the day indicated in the notice, which may be no later than five years after the day on which the specification is made. |
(3) Les effets de la détermination cessent à la date précisée dans lavis, qui ne peut être postérieure de plus de cinq ans à la date où elle a été faite. | |||
2012, c. 5, s. 181. |
2012, ch. 5, art. 181. | |||
Orders to Exempt or Adapt |
Exemption ou adaptation par décret | |||
Order |
Décret | |||
527.9 (1) On the recommendation of the Minister, the Governor in Council may, by order, |
527.9 (1) Sur recommandation du ministre, le gouverneur en conseil peut, par décret : | |||
(a) provide that any provision of this Act or the regulations shall not apply to a company, to Her Majesty in right of Canada or an agent or agency of Her Majesty or to any other person otherwise subject to the provision; and |
a) prévoir que telle disposition de la présente loi ou de ses règlements ne sapplique pas à une société, à Sa Majesté du chef du Canada ou à lun de ses mandataires ou organismes ou à toute autre personne autrement assujettie à cette disposition; | |||
(b) provide that any provision of this Act or the regulations applies to a company, to Her Majesty in right of Canada or Her Majestys agent or agency or to any other person subject to the provision only in the |
b) prévoir que telle disposition de la présente loi ou de ses règlements ne sapplique à une société, à Sa Majesté du chef du Canada ou à lun de ses mandataires ou organismes ou à toute autre personne | |||
Current to February 11, 2020 |
335 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Orders to Exempt or Adapt |
Exemption ou adaptation par décret | |
Section 527.9 |
Article 527.9 |
manner and to the extent provided for in the order, and adapt the provision for the purposes of that application. |
assujettie à cette disposition que selon les modalités et dans la mesure prévues par le décret et adapter la disposition à cette application. | |||
Ministers recommendation |
Recommandation du ministre | |||
(2) The Minister may make a recommendation under subsection (1) only if the Minister |
(2) Le ministre ne peut faire de recommandation en application du paragraphe (1) que sil est davis : | |||
(a) is of the opinion that the order would relate to |
a) que le décret sera lié : | |||
(i) the acquisition, holding, sale or other disposition of, or other dealing with, shares of a company by, or the transfer or issue of shares of a company to, Her Majesty in right of Canada or Her Majestys agent or agency, or |
(i) soit à lacquisition, à la détention ou à la vente ou toute autre forme de disposition dactions dune société par Sa Majesté du chef du Canada ou par lun de ses mandataires ou organismes, à toute autre forme de commerce par lun de ceux-ci relativement à de telles actions ou au transfert ou à lémission de telles actions à lun de ceux-ci, | |||
(ii) the management of the business and affairs or the regulation and supervision of a company during the time that Her Majesty or Her Majestys agent or agency is acquiring, holding, selling or otherwise disposing of, or otherwise dealing with, shares of the company, or during the time that shares of the company are transferred or issued to Her Majesty or Her Majestys agent or agency; and |
(ii) soit à la conduite de lactivité commerciale et des affaires internes ou à la réglementation et à la supervision dune société alors que Sa Majesté du chef du Canada ou lun de ses mandataires ou organismes acquiert, détient ou vend des actions de cette société, en dispose autrement, en fait autrement le commerce ou en obtient le transfert ou lémission; | |||
(b) is of the opinion after considering measures other than an order under that subsection and after consulting with the Superintendent, the Governor of the Bank of Canada and the Chief Executive Officer of the Canada Deposit Insurance Corporation that the order will promote the stability of the financial system in Canada. |
b) après avoir envisagé de prendre dautres mesures que celles prévues à ce paragraphe et consulté le surintendant, le gouverneur de la Banque du Canada et le premier dirigeant de la Société dassurance-dépôts du Canada, que le décret favorisera la stabilité du système financier au Canada. | |||
Terms and conditions |
|
Conditions | ||
(3) On the recommendation of the Minister, the Governor in Council may, by order, impose any terms and conditions relating to the acquisition of shares of a company by, or transfer or issue of shares of a company to, Her Majesty in right of Canada or Her Majestys agent or agency. |
(3) Sur recommandation du ministre, le gouverneur en conseil peut, par décret, prévoir les conditions relatives à lacquisition des actions dune société par Sa Majesté du chef du Canada ou par lun de ses mandataires ou organismes ou au transfert ou à lémission de telles actions à lun de ceux-ci. | |||
Repeal of order under subsection (1) |
Abrogation dun décret pris en application du paragraphe (1) | |||
(4) The Minister may recommend the repeal of an order made under subsection (1) without regard to subsection (2). |
(4) Le ministre peut recommander labrogation dun décret pris en application du paragraphe (1) sans égard au paragraphe (2). | |||
Terms, conditions and undertakings |
Conditions et engagements | |||
(5) From the time that Her Majesty in right of Canada or an agent or agency of Her Majesty acquires shares of a company to the time that the shares are sold or otherwise disposed of, the Minister may, by order, impose any terms and conditions on or require any undertaking from the company that the Minister considers |
(5) Lorsque Sa Majesté du chef du Canada ou lun de ses mandataires ou organismes fait lacquisition dactions dune société, le ministre peut, par arrêté, imposer à la société les conditions et les engagements quil estime indiqués, et ce, à compter du moment de lacquisition et |
Current to February 11, 2020 |
336 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Orders to Exempt or Adapt |
Exemption ou adaptation par décret | |
Section 527.9 |
Article 527.9 |
appropriate, including any terms and conditions or undertakings relating to |
|
jusquà celui de la vente ou autre disposition des actions, notamment à légard de ce qui suit : | ||
(a) the remuneration of the companys senior officers, as defined in section 509.01, and directors; |
a) la rémunération de ses cadres dirigeants, au sens de larticle 509.01, et de ses administrateurs; | |||
(b) the appointment or removal of the companys senior officers, as defined in section 509.01, and directors; |
b) la nomination ou la destitution de ses cadres dirigeants, au sens de larticle 509.01, et de ses administrateurs; | |||
(c) the payment of dividends by the company; and |
c) le versement de dividendes par la société; | |||
(d) the companys lending policies and practices. |
d) les politiques et pratiques de la société relatives aux prêts. | |||
Acquisition |
Acquisition | |||
(6) Despite Part X of the Financial Administration Act, the Minister or an agent or agency of Her Majesty in right of Canada may, on any terms and conditions imposed under subsection (3), acquire and hold shares of a company on behalf of or in trust for Her Majesty if, as a result of an order under subsection (1), the company may record in its securities register the transfer or issue of shares to Her Majesty or an agent or agency of Her Majesty. |
(6) Malgré la partie X de la Loi sur la gestion des finances publiques, le ministre ou lun des mandataires ou organismes de Sa Majesté du chef du Canada peut, selon les conditions fixées en application du paragraphe (3), acquérir et détenir au nom de Sa Majesté, ou en fiducie pour celle-ci, des actions dune société si, en raison dun décret pris en application du paragraphe (1), la société peut inscrire à son registre des valeurs mobilières le transfert ou lémission dactions à Sa Majesté ou à lun de ses mandataires ou organismes. | |||
Payment out of C.R.F. |
Prélèvement sur le Trésor | |||
(7) On the requisition of the Minister, there may be paid out of the Consolidated Revenue Fund the amount that the Minister or an agent or agency of Her Majesty in right of Canada is required to pay for the acquisition of shares under subsection (6) and any costs and expenses incurred in connection with the acquisition, holding, sale or other disposition of, or other dealing with, the shares. |
(7) Sur demande du ministre, peuvent être prélevés sur le Trésor les sommes que le ministre ou que lun des mandataires ou organismes de Sa Majesté du chef du Canada est tenu de payer pour lacquisition dactions conformément au paragraphe (6) et les frais entraînés par leur acquisition, détention, vente ou autre disposition ou commerce. | |||
Registration of shares |
Inscription des actions | |||
(8) Shares acquired under subsection (6) by the Minister or an agent or agency of Her Majesty in right of Canada shall be registered in the name of the Minister, agent or agency, as the case may be, in the companys securities register if they are capable of being registered in it, and the shares shall be held by the Minister, agent or agency, as the case may be, on behalf of or in trust for Her Majesty. |
(8) Les actions acquises conformément au paragraphe (6) par le ministre ou par lun des mandataires ou organismes de Sa Majesté du chef du Canada sont inscrites au registre des valeurs mobilières de la société au nom de lacquéreur si elles peuvent faire lobjet dune inscription sur ce registre et sont détenues par lui au nom de Sa Majesté, ou en fiducie pour celle-ci. | |||
Disposition by Minister |
Disposition par le ministre | |||
(9) The Minister may, at any time, sell or otherwise dispose of shares acquired under subsection (6). The Surplus Crown Assets Act and section 61 of the Financial Administration Act do not apply to the sale or disposition. |
(9) Le ministre peut, en tout temps, vendre des actions acquises conformément au paragraphe (6) ou en disposer autrement. La Loi sur les biens de surplus de la Couronne ainsi que larticle 61 de la Loi sur la gestion des finances publiques ne sappliquent pas à une telle vente ou disposition. |
Current to February 11, 2020 |
337 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Orders to Exempt or Adapt |
Exemption ou adaptation par décret | |
Section 527.9 |
Article 527.9 |
Disposition by agent or agency |
|
Disposition par lun des mandataires ou organismes de Sa Majesté | ||
(10) An agent or agency of Her Majesty in right of Canada at the request of the Minister, which may be made at any time shall sell or otherwise dispose of shares acquired under subsection (6). The Surplus Crown Assets Act and section 61 of the Financial Administration Act do not apply to the sale or disposition. |
(10) À la demande du ministre, laquelle peut être faite en tout temps, lun des mandataires ou organismes de Sa Majesté du chef du Canada vend des actions acquises conformément au paragraphe (6) ou en dispose autrement. La Loi sur les biens de surplus de la Couronne ainsi que larticle 61 de la Loi sur la gestion des finances publiques ne sappliquent pas à une telle vente ou disposition. | |||
Consideration by Minister |
Effet de la détention dactions | |||
(11) If the Minister or an agent or agency of Her Majesty in right of Canada is holding shares of a company on behalf of or in trust for Her Majesty on the day that is two years after the day on which the shares were acquired, the Minister shall consider whether holding the shares continues to promote the stability of the financial system in Canada. |
(11) Lorsque le ministre ou lun des mandataires ou organismes de Sa Majesté du chef du Canada détient des actions dune société au nom de Sa Majesté, ou en fiducie pour celle-ci, deux ans après leur acquisition, le ministre se penche sur la question de savoir si leur détention continue de favoriser la stabilité du système financier au Canada. | |||
Mandatory disposition |
Disposition obligatoire | |||
(12) If the Minister, under subsection (11), considers that holding shares acquired under subsection (6) no longer continues to promote the stability of the financial system in Canada, the Minister or, at the request of the Minister, the agent or agency of Her Majesty in right of Canada shall take the measures that the Minister considers practicable in the circumstances to sell or otherwise dispose of the shares. The Surplus Crown Assets Act and section 61 of the Financial Administration Act do not apply to the sale or disposition. |
(12) Sil estime, aux termes du paragraphe (11), que la détention dactions acquises conformément au paragraphe (6) ne favorise plus la stabilité du système financier au Canada, le ministre ou, à sa demande, lun des mandataires ou organismes de Sa Majesté du chef du Canada prend les mesures quil juge indiquées dans les circonstances pour vendre les actions ou en disposer autrement. La Loi sur les biens de surplus de la Couronne ainsi que larticle 61 de la Loi sur la gestion des finances publiques ne sappliquent pas à une telle vente ou disposition. | |||
Not a Crown corporation |
Pas une société dÉtat | |||
(13) Even if the acquisition of a companys shares under subsection (6) would otherwise cause the company to be a Crown corporation, as defined in subsection 83(1) of the Financial Administration Act, the company is not a Crown corporation for the purposes of that Act. |
(13) Si lacquisition des actions dune société conformément au paragraphe (6) en ferait par ailleurs une société dÉtat, au sens du paragraphe 83(1) de la Loi sur la gestion des finances publiques, cette société nest pas une telle société pour lapplication de cette loi. | |||
Statutory Instruments Act |
Loi sur les textes réglementaires | |||
(14) The Statutory Instruments Act does not apply to an order made under this section. |
(14) La Loi sur les textes réglementaires ne sapplique pas aux décrets ou aux arrêtés pris en application du présent article. | |||
Definition of shares |
Précision | |||
(15) For the purposes of this section, shares includes any conversion or exchange privilege, option or right to acquire shares. |
(15) Pour lapplication du présent article, sont assimilés aux actions les privilèges de conversion ou déchange et les options ou droits dachat dactions. | |||
2009, c. 2, s. 292; 2016, c. 7, s. 174. |
2009, ch. 2, art. 292; 2016, ch. 7, art. 174. |
Current to February 11, 2020 |
338 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Orders and Directives |
Arrêts, ordonnances et décisions | |
Sections 528-529.1 |
Articles 528-529.1 |
Orders and Directives | Arrêts, ordonnances et décisions | |||
Not statutory instruments |
Caractère non réglementaire | |||
528 An instrument issued or made under this Act and directed to a single company or person, other than an order referred to in section 487, is not a statutory instrument for the purposes of the Statutory Instruments Act. |
528 À lexclusion de larrêté prévu à larticle 487, les actes pris sous le régime de la présente loi à lendroit dune seule société ou personne ne sont pas des textes réglementaires au sens de la Loi sur les textes réglementaires. | |||
Form |
Forme | |||
529 The Superintendent may, by order, establish the form of any application to be made to the Minister or the Superintendent under this Act. |
529 Le surintendant peut, par ordonnance, fixer la forme des demandes présentées au ministre ou à lui-même en vertu de la présente loi. | |||
Applications to Superintendent |
Demandes au surintendant | |||
Content of applications |
Demande dapprobation | |||
529.1 (1) The following applications to the Superintendent must contain the information, material and evidence that the Superintendent may require: |
529.1 (1) Doivent être accompagnées des renseignements et documents que peut exiger le surintendant les demandes suivantes qui lui sont présentées : | |||
(a) applications for approval under subsection 68(1), 75(2), 78(4), 82(5), 83(1), 174(1), 222(3), 421(1), 453(6) or (10), 456(1) or (2) or 470(1), subparagraph 475(2)(b)(vi), section 478 or subsection 482(3) or (4) or 483.3(1); |
a) les demandes dagrément, dapprobation ou dautorisation visées
aux paragraphes 68(1), 75(2), 78(4), 82(5), 83(1), 174(1), 222(3), 421(1), 453(6) ou (10), 456(1) ou (2) ou 470(1), au sous-alinéa 475(2)b)(vi), à larticle 478 ou aux paragraphes 482(3) ou
(4) ou | |||
(b) applications for consent under subsection 74(1); |
b) les demandes daccord visées au paragraphe 74(1); | |||
(c) applications for exemptions under subsection 160.05(3); and |
c) les demandes de dispense visées au paragraphe 160.05(3); | |||
(d) applications for extensions of time under subsection 456(3) or (5), 457(4) or 458(4). |
d) les demandes de prorogation visées aux paragraphes 456(3) ou (5), 457(4) ou 458(4). | |||
Receipt |
Accusé de réception | |||
(2) Without delay after receiving the application, the Superintendent shall send a receipt to the applicant certifying the date on which it was received. |
(2) Le surintendant adresse sans délai au demandeur un accusé de réception précisant la date de celle-ci. | |||
Notice of decision to applicant |
Avis au demandeur | |||
(3) Subject to subsection (4), the Superintendent shall, within a period of thirty days after the receipt of the application, send to the applicant |
(3) Sous réserve du paragraphe (4), le surintendant envoie au demandeur, dans les trente jours suivant la date de réception : | |||
(a) a notice approving the application, subject to any terms and conditions that the Superintendent considers appropriate; or |
a) soit un avis dagrément de la demande, assorti éventuellement des conditions ou modalités quil juge utiles; | |||
(b) if the Superintendent is not satisfied that it should be approved, a notice to that effect. |
b) soit, sil nest pas convaincu que la demande devrait être agréée, un avis en ce sens. |
Current to February 11, 2020 |
339 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Applications to Superintendent |
Demandes au surintendant | |
Sections 529-529.2 |
Articles 529.1-529.2 |
Extension of period |
|
Prorogation | ||
(4) If the Superintendent is unable to complete the consideration of the application within the period referred to in subsection (3), the Superintendent shall, within that period, send a notice to the applicant informing the applicant that the Superintendent has extended the period for a further period set out in the notice. |
(4) Dans le cas où lexamen de la demande ne peut se faire dans le délai fixé au paragraphe (3), le surintendant envoie, avant lexpiration de celui-ci, un avis en informant le demandeur et mentionne le nouveau délai. | |||
Deemed approval |
Présomption | |||
(5) If the applicant does not receive the notice required by subsection (3) and, where applicable, subsection (4), within the required period, the Superintendent is deemed to have approved the application and granted the approval, consent, extension or exemption to which the application relates, regardless of whether the approval, consent, extension or exemption is to be in writing or not. |
(5) Le défaut denvoyer lavis prévu au paragraphe (3) et, sil y a lieu, celui prévu au paragraphe (4) dans le délai imparti vaut agrément de la demande et octroi de lagrément, de lapprobation, de lautorisation, de laccord, de lexemption, de la dispense ou de la prorogation de délai visés par la demande, même si ceux-ci doivent être donnés par écrit. | |||
2001, c. 9, s. 568; 2007, c. 6, s. 383. |
2001, ch. 9, art. 568; 2007, ch. 6, art. 383. | |||
Applications for Certain Approvals |
Demandes relatives à certains agréments | |||
Application for certain approvals |
Demandes relatives à certains agréments | |||
529.2 (1) An application for the prior written approval of the Minister in respect of paragraph 410(1)(c) or (c.1) or 453(5)(b.1), (c), (d) or (d.1) must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require. |
529.2 (1) Toute demande visant lobtention de lagrément écrit préalable du ministre faite dans le cadre de lun ou lautre des alinéas 410(1)c) et c.1) et 453(5)b.1), c), d) et d.1) est présentée au surintendant et contient les renseignements, documents et éléments de preuve pouvant être exigés par lui. | |||
Certification of receipt of application |
Accusé de réception | |||
(2) If, in the opinion of the Superintendent, the application contains all the required information, the Superintendent must refer it to the Minister, together with his or her analysis in relation to the application, and send a receipt to the applicant certifying the date on which the application was referred to the Minister. |
(2) Sil estime que la demande est complète, le surintendant la transmet, accompagnée de son analyse, au ministre et adresse au demandeur un accusé de réception précisant la date où elle a été transmise au ministre. | |||
Incomplete application |
Demande incomplète | |||
(3) If, in the opinion of the Superintendent, the application is incomplete, the Superintendent must send a notice to the applicant specifying the information required by the Superintendent to complete it. |
(3) Dans le cas contraire, le surintendant envoie au demandeur un avis précisant les renseignements manquants à lui communiquer. | |||
Notice of decision |
Avis au demandeur | |||
(4) Subject to subsection (5), the Minister must, within 30 days after the certified date referred to in subsection (2), send to the applicant |
(4) Sous réserve du paragraphe (5), le ministre envoie au demandeur, dans les trente jours suivant la date visée au paragraphe (2) : | |||
(a) a notice approving the application; or |
a) soit un avis dagrément de la demande; | |||
(b) if the Minister is not satisfied that the application should be approved, a notice to that effect. |
b) soit, sil nest pas convaincu que la demande devrait être agréée, un avis de refus. |
Current to February 11, 2020 |
340 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Applications for Certain Approvals |
Demandes relatives à certains agréments | |
Sections 529.2-531 |
Articles 529.2-531 |
Extension of period |
|
Prorogation | ||
(5) If the Minister is unable to complete the consideration of an application within the 30-day period, the Minister must, within that period, send a notice to the applicant informing the applicant that the Minister has extended the period for a further period set out in the notice. |
(5) Dans le cas où lexamen de la demande ne peut se faire dans le délai fixé au paragraphe (4), le ministre envoie, avant lexpiration de celui-ci, un avis en informant le demandeur et précisant le nouveau délai. | |||
Deemed approval |
Présomption | |||
(6) If the Minister does not send the notice referred to in subsection (4) or, where applicable, subsection (5), within the required period, the Minister is deemed to have approved the application. |
(6) Le ministre est réputé avoir agréé la demande sil omet denvoyer lavis prévu au paragraphe (4) et, sil y a lieu, celui prévu au paragraphe (5) dans le délai imparti. | |||
2007, c. 6, s. 384; 2012, c. 5, s. 182. |
2007, ch. 6, art. 384; 2012, ch. 5, art. 182. | |||
Appeals |
Appels | |||
Appeal to Federal Court |
Appel | |||
530 (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 396(7) or 401(1). |
530 (1) Est susceptible dappel devant la Cour fédérale la décision du ministre prise aux termes des paragraphes 396(7) ou 401(1). | |||
Powers |
Pouvoirs | |||
(2) The Federal Court may, in an appeal under subsection (1), |
(2) La Cour fédérale statue sur lappel en prenant au choix lune des décisions suivantes : | |||
(a) dismiss the appeal; |
a) rejet pur et simple; | |||
(b) set aside the direction or decision; or |
b) annulation des mesures ou décisions en cause; | |||
(c) set aside the direction or decision and refer the matter back for re-determination. |
c) annulation des mesures ou décisions et renvoi de laffaire pour réexamen. | |||
Certificate |
Certificat | |||
(3) For the purposes of an appeal under subsection (1), the Minister shall, at the request of the company or person making the appeal, provide the company or person with a certificate in writing setting out the direction or decision appealed from and the reasons why the direction or decision was made. |
(3) Sur demande, le ministre remet à la société ou à la personne qui interjette appel un certificat exposant les mesures ou la décision portées en appel ainsi que les raisons justifiant leur prise. | |||
1991, c. 45, ss. 530, 540; 1996, c. 6, s. 132; 2012, c. 31, s. 108. |
1991, ch. 45, art. 530 et 540; 1996, ch. 6, art. 132; 2012, ch. 31, art. 108. | |||
Regulations |
Règlements | |||
Power to make regulations |
Règlements | |||
531 (1) The Governor in Council may make regulations | 531 (1) Le gouverneur en conseil peut, par règlement : | |||
(a) prescribing anything that is required or authorized by this Act to be prescribed; |
a) prendre toute mesure dordre réglementaire prévue par la présente loi; | |||
(a.1) prescribing the way in which anything that is required or authorized by this Act to be prescribed shall be determined; |
a.1) préciser la façon de déterminer ce qui peut ou doit lobjet dune mesure réglementaire; |
Current to February 11, 2020 |
341 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Regulations |
Règlements | |
Section 531 |
Article 531 |
(b) defining words and expressions to be defined for the purposes of this Act; |
|
b) définir certains termes pour lapplication de la présente loi; | ||
(c) requiring the payment of a fee in respect of the filing, examining or issuing of any document or in respect of any action that the Superintendent is required or authorized to take under this Act, and fixing the amount thereof or the manner of determining the amount thereof; |
c) exiger le paiement de droits pour le dépôt, lexamen ou la délivrance de documents, ou pour les mesures que peut ou doit prendre le surintendant aux termes de la présente loi, et en fixer soit le montant, soit les modalités de sa détermination; | |||
(d) respecting the regulatory capital and total assets of a company; |
d) régir le capital réglementaire et lactif total de la société; | |||
(e) respecting the retention, in Canada, of assets of a company; |
e) régir la rétention, au Canada, de lactif de la société; | |||
(f) respecting the value of assets of a company to be held in Canada and the manner in which those assets are to be held; |
f) prévoir la valeur de lactif qui doit être détenu au Canada et les modalités de la détention; | |||
(f.1) respecting, for any purpose of any provision of the Act, the determination of the equity of a company; |
f.1) régir, pour lapplication de toute disposition de la présente loi, la détermination des capitaux propres dune société; | |||
(g) respecting the protection and maintenance of assets of a company and assets held in trust by a company, including regulations respecting the bonding of directors, officers and employees of a company; |
g) régir la protection et le maintien de lactif de la société et de celui quelle détient en fiducie, y compris en ce qui touche le cautionnement de ses administrateurs, dirigeants et employés; | |||
(h) respecting the holding of shares and ownership interests for the purposes of sections 73 and 77; |
h) régir la détention dactions et de titres de participation pour lapplication des articles 73 et 77; | |||
(i) respecting information, in addition to the information required by section 501, to be maintained in the register referred to in that section; and |
i) prévoir linformation, en plus des documents visés à larticle 501, à conserver dans le registre mentionné à cet article; | |||
(j) generally for carrying out the purposes and provisions of this Act. |
j) prendre toute autre mesure dapplication de la présente loi. | |||
Incorporation by reference |
Incorporation par renvoi | |||
(2) The regulations may incorporate any material by reference regardless of its source and either as it exists on a particular date or as amended from time to time. |
(2) Peut être incorporé par renvoi dans un règlement tout document quelle que soit sa provenance , soit dans sa version à une date donnée, soit avec ses modifications successives. | |||
Incorporated material is not a regulation |
Nature du document incorporé | |||
(3) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference. |
(3) Lincorporation par renvoi dun document dans un règlement ne lui confère pas, pour lapplication de la Loi sur les textes réglementaires, valeur de règlement. | |||
1991, c. 45, s. 531; 1997, c. 15, s. 408; 1999, c. 31, s. 220(F); 2001, c. 9, s. 569; 2005, c. 54, s. 449. |
1991, ch. 45, art. 531; 1997, ch. 15, art. 408; 1999, ch. 31, art. 220(F); 2001, ch. 9, art. 569; 2005, ch. 54, art. 449. |
Current to February 11, 2020 |
342 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIII Administration |
PARTIE XIII Application | |
Delegation |
Délégation | |
Sections 532-534 |
Articles 532-534 |
Delegation |
|
Délégation | ||
Delegation |
Délégation | |||
532 The Minister may delegate any of the Ministers powers, duties and functions under this Act to any Minister of State appointed pursuant to the Ministries and Ministers of State Act to assist the Minister. |
532 Le ministre peut déléguer les attributions que lui confère la présente loi à tout ministre dÉtat nommé en application de la Loi sur les départements et ministres dÉtat. | |||
PART XIV |
PARTIE XIV | |||
Sanctions |
Peines | |||
Offence |
Infraction | |||
533 (1) Every person who, without reasonable cause, contravenes any provision of this Act or the regulations is guilty of an offence. |
533 (1) Commet une infraction quiconque contrevient sans motif valable à la présente loi ou à ses règlements. | |||
False or misleading information |
Renseignements faux ou trompeurs | |||
(1.1) Every person who knowingly provides false or misleading information in relation to any matter under this Act or the regulations is guilty of an offence. |
(1.1) Commet une infraction quiconque, relativement à toute question visée par la présente loi ou ses règlements, communique sciemment des renseignements faux ou trompeurs. | |||
Undue preference to creditor |
Préférence donnée à un créancier | |||
(2) Every director, officer or employee of a company who wilfully gives or concurs in giving to any creditor of the company any fraudulent, undue or unfair preference over other creditors, by giving security to the creditor, by changing the nature of the creditors claim or otherwise, is guilty of an offence. |
(2) Commet une infraction tout administrateur, dirigeant ou employé dune société qui volontairement accorde, ou consent daccorder, de manière frauduleuse, irrégulière ou injuste, à un créancier de la société une préférence sur dautres créanciers, en lui donnant des garanties ou en changeant la nature de sa créance, ou de toute autre manière. | |||
Failure to provide information |
Défaut de fournir des renseignements | |||
(3) Every person who, without reasonable cause, refuses or fails to comply with a requirement made under paragraph 505(2)(b) is guilty of an offence. |
(3) Commet une infraction quiconque refuse ou omet, sans motif valable, de se conformer aux exigences prévues à lalinéa 505(2)b). | |||
Use of name | Utilisation du nom | |||
(4) Except to the extent permitted by the regulations, every person who uses the name of a company in a prospectus, offering memorandum, takeover bid circular, advertisement for a transaction related to securities or in any other document in connection with a transaction related to securities is guilty of an offence. |
(4) Sauf dans la mesure permise par les règlements, commet une infraction quiconque utilise le nom dune société dans un prospectus, une offre, une circulaire doffre publique dachat, une annonce dopération sur des valeurs mobilières ou tout autre document portant sur une telle opération. | |||
1991, c. 45, s. 533; 2007, c. 6, s. 385. |
1991, ch. 45, art. 533; 2007, ch. 6, art. 385. | |||
Punishment | Infractions générales à la loi | |||
534 (1) Every person who is guilty of an offence under any of subsections 533(1) to (4) is |
534 (1) Quiconque commet une infraction prévue à larticle 533 est passible : | |||
(a) in the case of a natural person, liable |
a) sil sagit dune personne physique : |
Current to February 11, 2020 |
343 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV Sanctions |
PARTIE XIV Peines | |
Sections 534-535.1 |
Articles 534-535.1 |
(i) on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding twelve months, or to both, or |
|
(i) sur déclaration de culpabilité par procédure sommaire, dune amende maximale de 100 000 $ et dun emprisonnement maximal de un an, ou de lune de ces peines, | ||
(ii) on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years, or to both; and |
(ii) sur déclaration de culpabilité par mise en accusation, dune amende maximale de 1 000 000 $ et dun emprisonnement maximal de cinq ans, ou de lune de ces peines; | |||
(b) in the case of an entity, liable | b) sil sagit dune entité : | |||
(i) on summary conviction, to a fine not exceeding $500,000, or |
(i) sur déclaration de culpabilité par procédure sommaire, dune amende maximale de 500 000 $, | |||
(ii) on conviction on indictment, to a fine not exceeding $5,000,000. |
(ii) par mise en accusation, dune amende maximale de 5 000 000 $. | |||
Order to comply |
Ordonnance visant au respect de la loi | |||
(2) Where a person has been convicted of an offence under this Act, the court may, in addition to any punishment it may otherwise impose, order the person to comply with the provisions of this Act or the regulations in respect of which the person was convicted. |
(2) Le tribunal peut, en sus de toute autre peine quil a le pouvoir dinfliger, ordonner à lauteur dune infraction à la présente loi de se conformer aux dispositions enfreintes. | |||
Additional fine |
Amende supplémentaire | |||
(3) If a person has been convicted of an offence under this Act, the court may, if it is satisfied that as a result of the commission of the offence the convicted person acquired any monetary benefits or that monetary benefits accrued to the convicted person or their spouse, common-law partner or other dependant, order the convicted person to pay, despite the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to three times the courts estimation of the amount of those monetary benefits. |
(3) Le tribunal peut également, sil est convaincu que le coupable, son époux, son conjoint de fait ou une autre personne à sa charge a tiré des avantages financiers de linfraction, infliger au contrevenant malgré le plafond fixé pour linfraction une amende supplémentaire équivalente à ce quil juge être le triple du montant de lavantage tiré. | |||
1991, c. 45, s. 534; 1997, c. 15, s. 409; 2000, c. 12, s. 301; 2005, c. 54, s. 450. |
1991, ch. 45, art. 534; 1997, ch. 15, art. 409; 2000, ch. 12, art. 301; 2005, ch. 54, art. 450. | |||
Liability of officers, directors, etc. |
Responsabilité pénale | |||
535 Where an entity commits an offence under this Act, any officer, director or agent of the entity who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on summary conviction or on conviction on indictment to the punishment provided under paragraph 534(1)(a) for the offence whether or not the entity has been prosecuted or convicted. |
535 En cas de perpétration par une entité dune infraction à la présente loi, ceux de ses administrateurs, dirigeants ou mandataires qui lont ordonnée ou autorisée, ou qui y ont consenti ou participé, sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire ou par mise en accusation, la peine prévue à lalinéa 534(1)a), que lentité ait été ou non poursuivie ou déclarée coupable. | |||
1991, c. 45, s. 535; 1997, c. 15, s. 410. |
1991, ch. 45, art. 535; 1997, ch. 15, art. 410. | |||
Limitation period |
Prescription | |||
535.1 (1) Proceedings by way of summary conviction in respect of an offence under a provision of this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the |
535.1 (1) Les poursuites visant une infraction à la présente loi punissable sur déclaration de culpabilité par procédure sommaire se prescrivent par deux ans à compter de la date où le surintendant ou, dans le cas de |
Current to February 11, 2020 |
344 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV Sanctions |
PARTIE XIV Peines | |
Sections 535.1-538 |
Articles 535.1-538 |
proceedings became known, in the case of an offence under a consumer provision, to the Commissioner and, in any other case, to the Superintendent. |
|
dispositions visant les consommateurs, le commissaire, a eu connaissance des éléments constitutifs de linfraction. | ||
Certificate of Superintendent or Commissioner |
Certificat du surintendant ou du commissaire | |||
(2) A document appearing to have been issued by the Superintendent or Commissioner, as the case may be, certifying the day on which the subject-matter of any proceedings became known to the Superintendent or Commissioner is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it. |
(2) Tout document apparemment délivré par le surintendant ou le commissaire et attestant la date où ces éléments sont parvenus à sa connaissance fait foi de cette date, en labsence de preuve contraire, sans quil soit nécessaire de prouver lauthenticité de la signature qui y est apposée ou la qualité officielle du signataire. | |||
2001, c. 9, s. 570. |
2001, ch. 9, art. 570. | |||
Effect of offence on contracts |
Contrats | |||
536 Unless otherwise expressly provided in this Act, a contravention of any provision of this Act or the regulations does not invalidate any contract entered into in contravention of the provision. |
536 Sauf disposition contraire expresse de la présente loi, le contrat conclu en contravention dune disposition de celle-ci ou de ses règlements nest pas nul pour autant. | |||
Restraining or compliance order |
Ordonnance | |||
537 (1) If a company or any director, officer, employee or agent of a company does not comply with any provision of this Act or the regulations other than a consumer provision, or of the incorporating instrument or any bylaw of the company, the Superintendent, any complainant or any creditor of the company may, in addition to any other right that person has, apply to a court for an order directing the company, director, officer, employee or agent to comply with or restraining the company, director, officer, employee or agent from acting in breach of the provision and, on the application, the court may so order and make any further order it thinks fit. |
537 (1) Le surintendant, le plaignant ou le créancier de la société peut, en plus de tous ses autres droits, demander au tribunal une ordonnance enjoignant à celle-ci ou à ceux de ses administrateurs, dirigeants, employés ou mandataires qui ne respectent pas la présente loi ou ses règlements dapplication sauf les dispositions visant les consommateurs , lacte constitutif ou les règlements administratifs de sy conformer, ou leur interdisant dy contrevenir; le tribunal peut acquiescer à la demande et rendre toute autre ordonnance quil juge indiquée. | |||
Compliance or restraining order consumer provisions |
Dispositions visant les consommateurs | |||
(2) If a company or any director, officer, employee or agent of a company does not comply with any applicable consumer provision, the Commissioner or any complainant may, in addition to any other right that person has, apply to a court for an order directing the company, director, officer, employee or agent to comply with or restraining the company, director, officer, employee or agent from acting in breach of the consumer provision and, on the application, the court may so order and make any further order it thinks fit. |
(2) Le commissaire ou un plaignant peut, en plus de tous ses autres droits, demander au tribunal une ordonnance enjoignant à la société ou à ceux de ses administrateurs, dirigeants, employés ou mandataires qui ne respectent pas les dispositions visant les consommateurs applicables de sy conformer, ou leur interdisant dy contrevenir; le tribunal peut acquiescer à la demande et rendre toute autre ordonnance quil juge indiquée. | |||
1991, c. 45, s. 537; 2001, c. 9, s. 571. |
1991, ch. 45, art. 537; 2001, ch. 9, art. 571. | |||
Appeal of final order |
Appel | |||
538 (1) An appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act. |
538 (1) Toute ordonnance définitive dun tribunal rendue en vertu de la présente loi est susceptible dappel devant la cour dappel de la province. |
Current to February 11, 2020 |
345 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV Sanctions |
PARTIE XIV Peines | |
Sections 538-539.03 |
Articles 538-539.03 |
Appeal with leave |
|
Permission den appeler | ||
(2) An appeal lies to the court of appeal of a province from any order, other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court. |
(2) Toute autre ordonnance dun tribunal nest susceptible dappel que sur permission de la cour dappel de la province conformément aux règles applicables à celle-ci. | |||
1991, c. 45, s. 538; 2005, c. 54, s. 451. |
1991, ch. 45, art. 538; 2005, ch. 54, art. 451. | |||
Recovery and application of fines |
Recouvrement et affectation des amendes | |||
539 All fines payable under this Act are recoverable and enforceable, with costs, at the suit of Her Majesty in right of Canada, instituted by the Attorney General of Canada, and, when recovered, belong to Her Majesty in right of Canada. |
539 Toutes les amendes payables sous la présente loi sont imposables et recouvrables avec dépens, à la diligence de Sa Majesté du chef du Canada, par le procureur général du Canada; une fois recouvrées, elles deviennent la propriété de Sa Majesté du chef du Canada. | |||
PART XIV.1 |
PARTIE XIV.1 | |||
Documents in Electronic or Other Form |
Documents sous forme électronique ou autre | |||
Definitions |
Définitions | |||
539.01 The following definitions apply in this Part. |
539.01 Les définitions qui suivent sappliquent à la présente partie. | |||
electronic document means, except in section 539.1, any form of representation of information or concepts that is fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means. (document électronique) |
document électronique Sauf à larticle 539.1, sentend de toute forme de représentation dinformation ou de notions fixée sur quelque support que ce soit par des moyens électroniques ou optiques ou dautres moyens semblables et qui peut être lue ou perçue par une personne ou par tout moyen. (electronic document) | |||
information system means a system used to generate, send, receive, store or otherwise process an electronic document. (système de traitement de linformation) |
système de traitement de linformation Système utilisé pour créer, transmettre, recevoir, mettre en mémoire ou traiter de toute autre manière des documents électroniques. (information system) | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Application |
Application | |||
539.02 This Part other than sections 539.13 and 539.14 does not apply in respect of any notice, document or other information that under this Act or the regulations is sent to or issued by the Minister, the Superintendent, the Commissioner or the Bank of Canada or any prescribed notice, document or information. |
539.02 La présente partie, à lexception des articles 539.13 et 539.14, ne sapplique pas aux avis, documents et autre information que le ministre, le surintendant, le commissaire ou la Banque du Canada envoie ou reçoit en vertu de la présente loi ou de ses règlements, ni à ceux exemptés par règlement. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Use not mandatory |
Utilisation non obligatoire | |||
539.03 Nothing in this Act or the regulations requires a person to create or provide an electronic document. |
539.03 La présente loi et ses règlements nobligent personne à créer ou transmettre un document électronique. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. |
Current to February 11, 2020 |
346 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV.1 Documents in Electronic or Other Form |
PARTIE XIV.1 Documents sous forme électronique ou autre | |
Sections 539.04-539.06 |
Articles 539.04-539.06 |
Consent and other requirements |
|
Consentement et autres exigences | ||
539.04 (1) Despite anything in this Part, a requirement under this Act or the regulations to provide a notice, document or other information is not satisfied by providing an electronic document unless |
539.04 (1) Malgré toute autre disposition de la présente partie, dans les cas où une disposition de la présente loi ou de ses règlements exige la fourniture dun avis, document ou autre information, la transmission dun document électronique ne satisfait à lobligation que si : | |||
(a) the addressee consents and designates an information system for the receipt of the electronic document; |
a) le destinataire a donné son consentement et désigné un système de traitement de linformation pour sa réception; | |||
(b) the electronic document is, unless otherwise prescribed, provided to the designated information system; and |
b) le document électronique est transmis au système de traitement de linformation ainsi désigné, sauf disposition réglementaire à leffet contraire; | |||
(c) the prescribed requirements are complied with. |
c) les exigences réglementaires sont observées. | |||
Consent and notice in electronic form |
Consentement et avis par voie électronique | |||
(1.1) Despite subsection (1), the requirements referred to in paragraph (1)(c) may provide that the consent referred to in paragraph (1)(a) and any notice related to that consent may be provided in electronic form. |
(1.1) Malgré le paragraphe (1), les exigences réglementaires visées à lalinéa (1)c) peuvent prévoir que le consentement visé à lalinéa (1)a) et tout avis relatif à ce consentement peuvent être donnés par voie électronique. | |||
Regulations revocation of consent |
Règlements révocation du consentement | |||
(2) The Governor in Council may make regulations respecting the revocation of the consent referred to in paragraph (1)(a). |
(2) Le gouverneur en conseil peut prendre des règlements concernant la révocation du consentement. | |||
2005, c. 54, s. 452; 2018, c. 27, s. 152. |
2005, ch. 54, art. 452; 2018, ch. 27, art. 152. | |||
Creation or provision of information |
Création et fourniture dinformation | |||
539.05 A requirement under this Act or the regulations to create or provide a notice, document or other information is satisfied by creating or providing an electronic document if |
539.05 Dans les cas où une disposition de la présente loi ou de ses règlements exige la création ou la fourniture dun avis, document ou autre information, la création ou la transmission dun document électronique satisfait à lobligation si : | |||
(a) the incorporating instrument or by-laws of the company do not provide otherwise; and |
a) lacte constitutif ou les règlements administratifs de la société qui doit créer ou à qui doit être fourni lavis, le document ou lautre information ne sy opposent pas; | |||
(b) the prescribed requirements are complied with. |
b) les exigences réglementaires sont observées. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Creation of information in writing |
Création dinformation écrite | |||
539.06 A requirement under this Act or the regulations to create a notice, document or other information in writing is satisfied by creating an electronic document if in addition to the conditions set out in section 539.05 |
539.06 Dans le cas où une disposition de la présente loi ou de ses règlements exige quun avis, document ou autre information soit créé par écrit, la création dun document électronique satisfait à lobligation si, outre celles prévues à larticle 539.05, les conditions suivantes sont réunies : | |||
(a) the information in the electronic document is accessible so as to be usable for subsequent reference; and |
Current to February 11, 2020 |
347 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV.1 Documents in Electronic or Other Form |
PARTIE XIV.1 Documents sous forme électronique ou autre | |
Sections 539.06-539.1 |
Articles 539.06-539.1 |
(b) the prescribed requirements are complied with. |
|
a) linformation quil contient est accessible pour consultation ultérieure; | ||
2005, c. 54, s. 452. |
b) les exigences réglementaires sont observées. | |||
2005, ch. 54, art. 452. | ||||
Provision of information in writing |
Fourniture dinformation sous forme écrite | |||
539.07 A requirement under this Act or the regulations to provide a notice, document or other information in writing is satisfied by providing an electronic document if in addition to the conditions set out in section 539.05 |
539.07 Dans le cas où une disposition de la présente loi ou de ses règlements exige quun avis, document ou autre information soit fourni par écrit, la transmission dun document électronique satisfait à lobligation si, outre celles prévues à larticle 539.05, les conditions suivantes sont réunies : | |||
(a) the information in the electronic document is accessible by the addressee and capable of being retained by them so as to be usable for subsequent reference; and |
a) linformation quil contient peut être conservée par le destinataire et lui est accessible pour consultation ultérieure; | |||
(b) the prescribed requirements are complied with. |
b) les exigences réglementaires sont observées. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Multiple copies |
Exemplaires | |||
539.08 A requirement under this Act or the regulations to provide two or more copies of a document at the same time to one addressee is satisfied by providing one copy of the electronic document. |
539.08 Dans le cas où une disposition de la présente loi ou de ses règlements exige la fourniture de plusieurs exemplaires dun document au destinataire dans le même envoi, la transmission dun seul exemplaire du document électronique satisfait à lobligation. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Registered mail |
Courrier recommandé | |||
539.09 A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by providing an electronic document except in the prescribed circumstances. |
539.09 Dans le cas où une disposition de la présente loi ou de ses règlements exige la transmission dun document par courrier recommandé, lobligation ne peut être satisfaite par la transmission dun document électronique que dans les circonstances prévues par règlement. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Statutory declarations and affidavits |
Déclaration solennelle ou sous serment | |||
539.1 (1) A statutory declaration or affidavit required under this Act or the regulations may be created or provided in an electronic document if |
539.1 (1) Dans le cas où une disposition de la présente loi ou de ses règlements exige une déclaration solennelle ou sous serment, celle-ci peut être créée ou fournie dans un document électronique si les conditions suivantes sont réunies : | |||
(a) the person who makes the statutory declaration or affidavit signs it with their secure electronic signature; |
a) son auteur y appose sa signature électronique sécurisée; | |||
(b) the authorized person before whom the statutory declaration or affidavit is made signs it with their secure electronic signature; and |
b) la personne autorisée devant qui elle a été faite y appose sa signature électronique sécurisée; | |||
(c) the requirements of sections 539.03 to 539.09 are complied with. |
c) les conditions visées aux articles 539.03 à 539.09 ont été observées. |
Current to February 11, 2020 |
348 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV.1 Documents in Electronic or Other Form |
PARTIE XIV.1 Documents sous forme électronique ou autre | |
Sections 539.1-539.13 |
Articles 539.1-539.13 |
Definitions |
|
Définitions | ||
(2) For the purposes of this section, electronic document and secure electronic signature have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act. |
(2) Pour lapplication du présent article, document électronique et signature électronique sécurisée sentendent au sens du paragraphe 31(1) de la Loi sur la protection des renseignements personnels et les documents électroniques. | |||
References to electronic document |
Précision | |||
(3) For the purpose of complying with paragraph (1)(c), references to electronic document in sections 539.03 to 539.09 are to be read as references to electronic document within the meaning of subsection 31(1) of the Personal Information Protection and Electronic Documents Act. |
(3) Pour lapplication de lalinéa (1)c), « document électronique », aux articles 539.03 à 539.09, vaut mention dun document électronique au sens du paragraphe 31(1) de la Loi sur la protection des renseignements personnels et les documents électroniques. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Signatures |
Signatures | |||
539.11 A requirement under this Act or the regulations for a signature or for a document to be executed, except in respect of a statutory declaration or affidavit, is satisfied in respect of an electronic document if the prescribed requirements are complied with and the signature results from the application by the person of a technology or process that permits the following to be proved: |
539.11 Dans le cas où une disposition de la présente loi ou de ses règlements exige une signature, autre que celle exigée pour la déclaration visée à larticle 539.1, la signature qui résulte de lutilisation dune technologie ou dun procédé satisfait à lobligation en ce qui concerne un document électronique si les exigences réglementaires visant lapplication du présent article sont observées et que la technologie ou le procédé permet détablir ce qui suit : | |||
(a) the signature resulting from the use by the person of the technology or process is unique to the person; |
a) la signature est propre à lutilisateur; | |||
(b) the technology or process is used by the person to incorporate their signature into, attach it to or associate it with the electronic document; and |
b) la technologie ou le procédé est utilisé pour lincorporation, ladjonction ou lassociation de la signature de cet utilisateur au document électronique; | |||
(c) the technology or process can be used to identify the person using the technology or process. |
c) la technologie ou le procédé permet didentifier lutilisateur. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Regulations provision and receipt of documents |
Règlements | |||
539.12 The Governor in Council may make regulations respecting the time and place at which and the circumstances under which an electronic document is considered to be provided or received. |
539.12 Le gouverneur en conseil peut prendre des règlements concernant les délais et les circonstances dans lesquels un document électronique est présumé avoir été transmis ou reçu, ainsi que le lieu où il est présumé lavoir été. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Content and form of notices and documents |
Mode de présentation des avis et documents | |||
539.13 The Minister, Superintendent, Commissioner or Bank of Canada may establish the requirements for the content and fix the form, including electronic and other forms, of notices and documents sent to or issued by each of them under this Act or the regulations, including |
539.13 Le ministre, le surintendant, le commissaire et la Banque du Canada peuvent établir le mode de présentation sous forme électronique ou autre et la teneur des avis et documents quils envoient ou reçoivent en vertu de la présente loi ou de ses règlements, et notamment déterminer : | |||
(a) the notices and documents that may be sent in electronic or other form; |
Current to February 11, 2020 |
349 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XIV.1 Documents in Electronic or Other Form |
PARTIE XIV.1 Documents sous forme électronique ou autre | |
Sections 539.13-561 and 562 |
Articles 539.13-561 et 562 |
(b) the persons or classes of persons who may send notices and documents; |
|
a) les avis et documents qui peuvent être envoyés sous forme électronique ou autre; | ||
(c) their signature in electronic or other form or their execution, adoption or authorization in a manner that is to have the same effect for the purposes of this Act as their signature; |
b) les personnes ou catégories de personnes qui peuvent en effectuer lenvoi; | |||
(d) the time and place at which and the circumstances under which electronic documents are considered to be sent or received; and |
c) les modalités de signature, sous forme électronique ou autre, de ceux-ci, y compris ce qui peut tenir lieu de signature; | |||
(e) any matter necessary for the purposes of the application of this section. |
d) les délais et les circonstances dans lesquels les documents électroniques sont présumés avoir été envoyés ou reçus, ainsi que le lieu où ils sont présumés avoir été envoyés ou reçus;
e) tout ce qui est utile à lapplication du présent article. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
Exemption |
Dispense | |||
539.14 In the prescribed circumstances, the Minister, the Superintendent, the Commissioner or the Bank of Canada may, on any conditions that they consider appropriate, exempt from the application of any provision of this Act requiring a notice or document to be sent to them any notice or document, or class of notice or document, containing information similar to that contained in a notice or document required to be made public under any other Act of Parliament or any Act of the legislature of a province. |
539.14 Par dérogation aux autres dispositions de la présente loi, dans les circonstances réglementaires, le ministre, le surintendant, le commissaire et la Banque du Canada peuvent, selon les modalités quils estiment appropriées, prévoir quil nest pas nécessaire de leur envoyer tels avis ou documents ou catégories davis ou de documents si linformation y figurant est semblable à celle qui figure dans des avis ou documents devant être rendus publics aux termes dune autre loi fédérale ou dune loi provinciale. | |||
2005, c. 54, s. 452. |
2005, ch. 54, art. 452. | |||
PART XV |
PARTIE XV | |||
General |
Dispositions générales | |||
Transitional |
Dispositions transitoires | |||
540 [Amendments] |
540 [Modifications] | |||
Consequential Amendments |
Modifications corrélatives | |||
541 to 560 [Amendments] |
541 à 560 [Modifications] | |||
Repeals |
Abrogations | |||
561 and 562 [Repeals] |
561 et 562 [Abrogations] |
Current to February 11, 2020 |
350 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
PART XV General |
PARTIE XV Dispositions générales | |
Coming into Force |
Entrée en vigueur | |
Section 563 |
Article 563 |
Coming into Force |
|
Entrée en vigueur | ||
Coming into force | Entrée en vigueur | |||
*563 (1) Subject to subsection (2), this Act or any provision thereof shall come into force on a day or days to be fixed by order of the Governor in Council. | *563 (1) Sous réserve du paragraphe (2), la présente loi ou telle de ses dispositions entre en vigueur à la date ou aux dates fixées par décret du gouverneur en conseil. | |||
* [Note: Act, except subsections 250(1) and (2), in force June 1, 1992, see SI/92-89.] | * [Note : Loi, sauf paragraphes 250(1) et (2), en vigueur le 1er juin 1992, voir TR/92-89.] | |||
Idem | Idem | |||
(2) Subsections 250(1) and (2) shall come into force on the day that is six months after the coming into force of subsections 243(1) and (2). | (2) Les paragraphes 250(1) et (2) entrent en vigueur six mois après la date dentrée en vigueur des paragraphes 243(1) et (2). |
Current to February 11, 2020 |
351 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
RELATED PROVISIONS |
DISPOSITIONS CONNEXES |
RELATED PROVISIONS |
|
DISPOSITIONS CONNEXES | ||
2015, c. 36, s. 239 | 2015, ch. 36, art. 239 | |||
Retroactivity section 504 of Trust and Loan Companies Act | Rétroactivité : article 504 de la Loi sur les sociétés de fiducie et de prêt | |||
239 Section 504 of the Trust and Loan Companies Act applies to information referred to in that section that has been used or in relation to which oral testimony has been given or a document has been produced, before the day on which this Division comes into force, in any civil proceedings in respect of which a final decision has not been made before that day. |
239 Larticle 504 de la Loi sur les sociétés de fiducie et de prêt sapplique aux renseignements visés à cet article qui ont été utilisés ou à légard desquels une déposition orale a été faite ou un document a été produit, avant la date dentrée en vigueur de la présente section, dans une procédure civile à légard de laquelle aucune décision finale na été rendue avant cette date. | |||
2015, c. 36, s. 246 | 2015, ch. 36, art. 246 | |||
Regulations apply section 504 of Trust and Loan Companies Act | Application des règlements : article 504 de la Loi sur les sociétés de fiducie et de prêt | |||
246 The regulations made under paragraph 531(1)(a) of the Trust and Loan Companies Act that prescribe supervisory information for the purposes of section 503.1 of that Act apply for the purposes of section 504 of that Act until regulations made under that paragraph for the purposes of that section 504 are in force. |
246 Les règlements précisant les renseignements relatifs à la supervision exercée par le surintendant qui sont pris en vertu de lalinéa 531(1)a) de la Loi sur les sociétés de fiducie et de prêt pour lapplication de larticle 503.1 de cette loi sappliquent à larticle 504 de cette loi jusquà ce que des règlements pris en vertu de cet alinéa pour lapplication de cet article 504 soient en vigueur. |
Current to February 11, 2020 |
352 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
AMENDMENTS NOT IN FORCE |
|
MODIFICATIONS NON EN VIGUEUR | ||
2005, c. 54, s. 392 (2) |
2005, ch. 54, par. 392 (2) | |||
1997, c. 15, s. 348. |
1997, ch. 15, art. 348. | |||
392 (2) The definition solicit or solicitation in section 160.01 of the Act is replaced by the following: |
392 (2) La définition de sollicitation, à larticle 160.01 de la même loi, est remplacée par ce qui suit : | |||
solicitation |
sollicitation | |||
(a) includes |
a) Sont considérés comme de la sollicitation : | |||
(i) a request for a proxy whether or not accompanied by a form of proxy, |
(i) la demande de procuration assortie ou non dun formulaire de procuration, | |||
(ii) a request to execute or not to execute a form of proxy or to revoke a proxy, |
(ii) la demande de signature ou de non-signature du formulaire de procuration ou de révocation de procuration, | |||
(iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and |
(iii) lenvoi dun formulaire de procuration ou de toute communication aux actionnaires, concerté en vue de lobtention, du refus ou de la révocation dune procuration, | |||
(iv) the sending of a form of proxy to a shareholder under subsection 160.04(1); but |
(iv) lenvoi dun formulaire de procuration aux actionnaires conformément au paragraphe 160.04(1); | |||
(b) does not include |
b) sont toutefois exclus : | |||
(i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder, |
(i) lenvoi dun formulaire de procuration en réponse à la demande spontanément faite par un actionnaire ou pour son compte, | |||
(ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, |
(ii) laccomplissement dactes dadministration ou de services professionnels pour le compte dune personne sollicitant une procuration, | |||
(iii) the sending by an intermediary of the documents referred to in subsection 160.07(1), |
(iii) lenvoi par un intermédiaire des documents visés au paragraphe 160.07(1), | |||
(iv) a solicitation by a person in respect of shares of which they are the beneficial owner, |
(iv) la sollicitation faite par une personne pour des actions dont elle est le véritable propriétaire, | |||
(v) a prescribed public announcement by a shareholder of how they intend to vote and the reasons for that decision, |
(v) lannonce publique au sens des règlements par lactionnaire de ses intentions de vote, motifs à lappui, | |||
(vi) a communication for the purpose of obtaining the support of persons in accordance with paragraph 146(1.1)(b), or |
(vi) toute communication en vue dobtenir lappui de personnes conformément à lalinéa 146(1.1)b), | |||
(vii) a communication, other than a solicitation by or on behalf of the management of a company, that is made to shareholders in the prescribed circumstances. (sollicitation) |
(vii) toute communication, autre quune sollicitation effectuée par la direction dune société ou pour son compte, faite aux actionnaires dans les circonstances réglementaires. (solicitation) |
Current to February 11, 2020 |
353 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
Subsections 425 (1) and (2), as enacted by 2007, c. 6, s. 362 |
|
Les paragraphes 425 (1) et (2), édictés par 2007, ch. 6, art. 362 | ||
Notice of unpaid amount |
Avis de non-paiement | |||
425 (1) A company shall send to each person to whom a deposit referred to in paragraph 424(1)(a) is payable, and to each person to whom or at whose request an instrument referred to in paragraph 424(1)(b) was issued, certified or accepted, a notice stating that the deposit or instrument remains unpaid. |
425 (1) La société envoie un avis de non-paiement à chacune des personnes soit à qui le dépôt est à payer, soit pour qui ou à la demande de qui leffet a été émis, visé ou accepté. | |||
Where notice to be sent |
Adresse dexpédition | |||
(2) The notice is to be sent to the persons recorded address and, if the person has designated an information system for the receipt of electronic documents, to that designated information system. |
(2) Lavis est envoyé à ladresse enregistrée de la personne et, si celle-ci a désigné un système de traitement de linformation pour la réception de documents électroniques, à un tel système. | |||
Paragraph 425 (3) (a), as enacted by 2007, c. 6, s. 362 |
Lalinéa 425 (3)a), édicté par 2007, ch. 6, art. 362 | |||
(a) in the case of a deposit made for a fixed period, after the fixed period has terminated; |
a) postérieure à léchéance, dans le cas dun dépôt à terme fixe; | |||
Paragraph 425 (3) (c), as enacted by 2007, c. 6, s. 362 |
Lalinéa 425 (3)c), édicté par 2007, ch. 6, art. 362 | |||
(c) in the case of a cheque, draft or bill of exchange, in respect of which the instrument has remained unpaid. |
c) pendant laquelle leffet est resté impayé, dans le cas dun chèque, dune traite ou dune lettre de change. | |||
Subsection 425 (4), as enacted by 2007, c. 6, s. 362 |
Le paragraphe 425 (4), édicté par 2007, ch. 6, art. 362 | |||
Notification of transfer to the Bank of Canada |
Notification de transfert à la Banque du Canada | |||
(4) The notice to be sent during the month of January next following the end of the first nine-year period determined under paragraphs (3)(a) to (c), as the case may be, must also |
(4) Lavis envoyé au cours du mois de janvier qui suit la fin de la première période de neuf ans déterminée en application des alinéas (3)a) à c), selon le cas, doit en outre : | |||
(a) indicate that in the month of January in the next year the unpaid amounts will be transferred to the Bank of Canada; and |
a) indiquer quau cours du mois de janvier de lannée suivante, les sommes impayées seront transférées à la Banque du Canada; | |||
(b) include the mailing address and websites where information can be obtained on how to claim the unpaid deposit or instrument. |
b) donner ladresse postale et les sites Web où peut être obtenue linformation concernant la présentation dune demande de paiement du dépôt ou de leffet impayé. | |||
2018, c. 12, s. 310 (1) |
2018, ch. 12, par. 310 (1) | |||
310 (1) Paragraphs 410(1)(c) and (c.1) of the Trust and Loan Companies Act are replaced by the following: |
310 (1) Les alinéas 410(1)c) et c.1) de la Loi sur les sociétés de fiducie et de prêt sont remplacés par ce qui suit : |
Current to February 11, 2020 |
354 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
(b.1) subject to sections 416 and 417 and the regulations, engage in any activity that relates to the provision of financial services by the company or any of its affiliates; |
|
b.1) sous réserve des articles 416 et 417 et des règlements, exercer toute activité relative aux services financiers quelle-même ou toute entité de son groupe offre; | ||
(c) subject to the regulations, engage in any of the following activities: |
c) exercer, sous réserve des règlements, les activités suivantes : | |||
(i) collecting, manipulating and transmitting information, and |
(i) la collecte, la manipulation et la transmission dinformation, | |||
(ii) designing, developing, manufacturing, selling and otherwise dealing with technology, if those activities relate to |
(ii) la conception, le développement, la fabrication et la vente de technologies, ou toute autre manière de soccuper de technologies, si ces activités sont relatives à toute autre activité prévue au présent paragraphe qui est exercée par la société ou toute entité de son groupe ou lorsque ces activités sont relatives à la prestation de services financiers par toute autre entité; | |||
(A) an activity referred to in this subsection that is engaged in by the company or any of its affiliates, or |
||||
(B) the provision of financial services by any other entity, |
||||
2018, c. 12, ss. 310 (3) to (5) |
2018, ch. 12, par. 310 (3) à (5) | |||
310 (3) Paragraph 410(3)(a) of the Act is replaced by the following: |
310 (3) Lalinéa 410(3)a) de la même loi est remplacé par ce qui suit : | |||
(a) respecting what a company may or may not do with respect to the carrying on of the activities referred to in paragraphs (1)(b.1), (c) and (d.1); |
a) prévoir ce que la société peut ou ne peut pas faire dans le cadre de lexercice des activités visées aux alinéas (1)b.1), c) ou d.1); | |||
(4) Paragraph 410(3)(b) of the English version of the Act is replaced by the following: |
(4) Lalinéa 410(3)b) de la version anglaise de la même loi est remplacé par ce qui suit : | |||
(b) imposing terms and conditions in respect of the provision of the services referred to in paragraphs (1)(a) and 409(2)(c) and the carrying on of the activities referred to in paragraphs (1)(b.1), (c) and (d.1); and |
(b) imposing terms and conditions in respect of the provision of the services referred to in paragraphs (1)(a) and 409(2)(c) and the carrying on of the activities referred to in paragraphs (1)(b.1), (c) and (d.1); and | |||
(5) Paragraph 410(3)(c) of the Act is replaced by the following: |
(5) Lalinéa 410(3)c) de la même loi est remplacé par ce qui suit : | |||
(c) respecting the circumstances in which a company may engage in an activity referred to in paragraphs (1)(b.1) and (c), including the circumstances in which it may collect, manipulate and transmit information under subparagraph (1)(c)(i). |
c) prévoir les circonstances dans lesquelles la société peut exercer les activités visées aux alinéas (1)b.1) et c), notamment en ce qui a trait à la collecte, la manipulation et la transmission dinformation en vertu du sous-alinéa (1)c)(i). | |||
2018, c. 12, s. 311 | 2018, ch. 12, art. 311 | |||
311 Section 411 of the Act is replaced by the following: |
311 Larticle 411 de la même loi est remplacé par ce qui suit : | |||
Networking |
Prestation de service | |||
411 (1) Subject to section 416 and the regulations, a companymay |
411 (1) Sous réserve de larticle 416 et des règlements, la société peut : | |||
(a) act as agent for any person in respect of |
a) faire fonction de mandataire en ce qui a trait : | |||
Current to February 11, 2020 |
355 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies |
Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
(i) the carrying on of any activity referred to in subsection 410(1) that is engaged in by a financial institution, by a permitted entity as defined in subsection 449(1), if that definition were read without reference to the requirements of subsections 453(4) to (6), or by a prescribed entity, and |
|
(i) à lexercice de toute activité visée au paragraphe 410(1) qui est exercée par une institution financière, par une entité admissible, au sens du paragraphe 449(1), sans tenir compte des exigences prévues aux paragraphes 453(4) à (6), ou par une entité visée par règlement, | ||
(ii) the provision of any service that relates to financial services and that is provided by an institution or entity referred to in subparagraph (i); |
(ii) à la prestation de tout service qui est relatif aux services financiers et qui est offert par une telle institution financière, entité admissible ou entité visée par règlement; | |||
(a.1) enter into an arrangement with any person in respect of the carrying on of an activity referred to in subparagraph (a)(i) or the provision of a service referred to in subparagraph (a)(ii); and |
a.1) conclure une entente en vue de lexercice dune activité visée au sous-alinéa a)(i) ou de la prestation dun service visé au sous-alinéa a)(ii); | |||
(b) refer any person to another person. |
b) renvoyer ou recommander toute personne à toute autre personne. | |||
Regulations |
Règlements | |||
(2) The Governor in Council may make regulations | (2) Le gouverneur en conseil peut, par règlement : | |||
(a) respecting the circumstances in which a company may act as an agent, enter into an arrangement or refer a person under subsection (1); and |
a) prévoir les circonstances dans lesquelles la société peut faire fonction de mandataire, conclure une entente ou renvoyer ou recommander une personne à une autre personne en vertu du paragraphe (1); | |||
(b) imposing terms and conditions in respect of the carrying on of activities under that subsection. |
b) fixer les conditions dexercice de toute activité quune société peut exercer en vertu de ce paragraphe. | |||
Regulations |
Règlements | |||
411.1 The Governor in Council may, for the purposes of section 409 and subsection 411(1), make regulations respecting what a company is prohibited from doing when acting as an agent or when making referrals. |
411.1 Pour lapplication de larticle 409 et du paragraphe 411(1), le gouverneur en conseil peut, par règlement, prévoir ce quil est interdit à une société de faire lorsquelle agit comme mandataire ou effectue un renvoi ou une recommandation. | |||
2018, c. 12, s. 312 | 2018, ch. 12, art. 312 | |||
312 (1) Section 453 of the Act is amended by adding the following after subsection (2): |
312 (1) Larticle 453 de la même loi est modifié par adjonction, après le paragraphe (2), de ce qui suit : | |||
Permitted investments |
Placements autorisés | |||
(2.1) Subject to subsections (3) to (6), Part XI and the regulations made under paragraphs (2.2)(b) and (c), a company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), if a majority, as defined in the regulations, of the entitys business consists of financial service activities or any other activity that a company is permitted to engage in under paragraphs 409(2)(b) to (d). |
(2.1) Sous réserve des paragraphes (3) à (6), de la partie XI et des règlements pris en vertu des alinéas (2.2)b) et c), la société peut acquérir le contrôle dune entité, autre quune entité visée aux alinéas (1)a) à j), ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité si la majeure partie, au sens des règlements, de lactivité commerciale de lentité comporte des services financiers ou toute autre activité quune société est autorisée à exercer dans le cadre des alinéas 409(2)b) à d). | |||
Regulations |
Règlements | |||
(2.2) The Governor in Council may make regulations | (2.2) Le gouverneur en conseil peut, par règlement : |
Current to February 11, 2020 |
356 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
(a) defining, for the purposes of subsection (2.1), the word majority; |
a) définir, pour lapplication du paragraphe (2.1), le terme « majeure partie »; | |
(b) imposing terms and conditions in respect of the acquisition of control of, or acquisition or increase of a substantial investment in, an entity that a company may acquire control of, or acquire or increase a substantial investment in, under subsection (2.1); and |
b) fixer les conditions selon lesquelles la société peut, en vertu du paragraphe (2.1), acquérir le contrôle dune entité ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité; | |
(c) respecting the circumstances in which a company may acquire control of, or acquire or increase a substantial investment in, an entity under subsection (2.1). |
c) prévoir les circonstances dans lesquelles la société peut, en vertu du paragraphe (2.1), acquérir le contrôle dune entité ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité. | |
(2) Subparagraph 453(3)(f)(ii) of the Act is replaced by the following: |
(2) Le sous-alinéa 453(3)f)(ii) de la même loi est remplacé par ce qui suit : | |
(ii) in the case of an entity that is not controlled by the company, the company itself would be permitted to acquire a substantial investment in the other entity under subsection (1), (2) or (2.1) or 451(2), paragraph 451(3)(b) or (c) or subsection 451(4); or |
(ii) dans le cas où lentité nest pas contrôlée par la société, lacquisition par la société elle-même dun intérêt de groupe financier dans lautre entité serait permise aux termes des paragraphes (1), (2) ou (2.1) ou 451(2), des alinéas 451(3)b) ou c) ou du paragraphe 451(4); | |
(3) Subsection 453(5) of the Act is amended by adding or at the end of paragraph (c) and by repealing paragraphs (5)(d) and (d.1). |
(3) Les alinéas 453(5)d) et d.1) de la même loi sont abrogés. | |
(4) Paragraph 453(7)(a) of the Act is replaced by the following: |
(4) Lalinéa 453(7)a) de la même loi est remplacé par ce qui suit : | |
(a) the company is acquiring control of an entity, other than a specialized financing entity, under subsection (2) or (2.1) and the only reason for which the company would, but for this subsection, require approval for the acquisition is that the entity carries on activities referred to in paragraph (2)(b); |
a) lentité dont le contrôle est acquis en vertu des paragraphes (2) ou (2.1) nest pas une entité soccupant de financement spécial et le seul motif pour lequel lagrément serait exigé, neût été le présent paragraphe, est lexercice par elle dune activité visée à lalinéa (2)b); | |
2018, c. 12, s. 313 | 2018, ch. 12, art. 313 | |
313 The Act is amended by adding the following after section 453: |
313 La même loi est modifiée par adjonction, après larticle 453, de ce qui suit : | |
Regulations |
Règlements | |
453.1 The Governor in Council may make regulations | 453.1 Le gouverneur en conseil peut, par règlement : | |
(a) respecting the circumstances in which a company may acquire control of, or acquire or increase a substantial investment in, an entity that engages in activities that a company is permitted to engage in under paragraph 410(1)(b.1) or (c), including the circumstances in which a company is prohibited from doing so; and |
a) prévoir les circonstances dans lesquelles la société peut acquérir le contrôle dune entité qui exerce des activités quune société est autorisée à exercer dans le cadre des alinéas 410(1)b.1) et c) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité, notamment dans quelles circonstances une telle acquisition ou augmentation est interdite; | |
(b) imposing terms and conditions in respect of the acquisition of control of, or acquisition or increase of a substantial investment in, an entity referred to in paragraph (a). |
b) fixer les conditions selon lesquelles la société peut acquérir le contrôle dune entité visée à lalinéa a) ou acquérir ou augmenter un intérêt de groupe financier dans une telle entité. | |
Current to February 11, 2020 |
357 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Trust and Loan Companies | Sociétés de fiducie et de prêt | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
2018, c. 12, s. 314 | 2018, ch. 12, art. 314 | |||
314 Paragraph 483(1)(c) of the Act is replaced by the following: |
314 Lalinéa 483(1)c) de la même loi est remplacé par ce qui suit : | |||
(c) consists of a written contract with the related party for the purpose of having either one of them act as an agent or make referrals; |
c) un contrat écrit avec lapparenté dans le but que lun ou lautre de ceux-ci agisse comme mandataire ou effectue des renvois daffaires ou des recommandations; | |||
2018, c. 12, s. 315 | 2018, ch. 12, art. 315 | |||
315 Subsection 529.2(1) of the Act is replaced by the following: |
|
315 Le paragraphe 529.2(1) de la même loi est remplacé par ce qui suit : | ||
Application for certain approvals |
Demandes relatives à certains agréments | |||
529.2 (1) An application for the prior written approval of the Minister in respect of paragraph 453(5)(b.1) or (c) must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require. |
529.2 (1) Toute demande visant lobtention de lagrément écrit préalable du ministre faite dans le cadre de lalinéa 453(5)b.1) ou c) est déposée auprès du surintendant et contient les renseignements, documents et éléments de preuve que celui-ci peut exiger. |
Current to February 11, 2020 |
358 | À jour au 11 février 2020 | ||
Last amended on June 17, 2019 |
Dernière modification le 17 juin 2019 |
Exhibit 8(c)
CANADA
CONSOLIDATION | CODIFICATION | |
Canada Deposit Insurance Corporation Act | Loi sur la Société dassurance-dépôts du Canada | |
R.S.C., 1985, c. C-3 | L.R.C. (1985), ch. C-3 | |
Current to February 11, 2020 | À jour au 11 février 2020 | |
Last amended on May 10, 2019 | Dernière modification le 10 mai 2019 | |
Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca |
Publié par le ministre de la Justice à ladresse suivante : http://lois-laws.justice.gc.ca |
Current to February 11, 2020 |
À jour au 11 février 2020 | |||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Current to February 11, 2020 |
iii | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 |
iv | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 |
v | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 |
vi | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 |
vii | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Current to February 11, 2020 |
1 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Interpretation |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
2 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Interpretation |
Définitions | |
Section 2 |
Article 2 | |
Current to February 11, 2020 |
3 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Interpretation |
Définitions | |
Sections 2-5 |
Articles 2-5 | |
(a) the person appointed as the Chairperson;
(b) the persons who for the time being hold the offices of the Governor of the Bank of Canada, the Deputy Minister of Finance, the Superintendent of Financial |
a) le président;
b) le gouverneur de la Banque du Canada, le sous-ministre des Finances, le surintendant des institutions |
Current to February 11, 2020 |
4 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Constitution of the Corporation |
Constitution et fonctionnement de la société | |
Section 5 |
Article 5 | |
|
|
Current to February 11, 2020 |
5 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Constitution of the Corporation |
Constitution et fonctionnement de la société | |
Sections 5-6 |
Articles 5-6 | |
|
|
Current to February 11, 2020 |
6 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Constitution of the Corporation |
Constitution et fonctionnement de la société | |
Sections 6-7.1 |
Articles 6-7.1 | |
Current to February 11, 2020 |
7 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Sections 7.2-9 |
Articles 7.2-9 | |
Current to February 11, 2020 |
8 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Section 10 |
Article 10 | |
Current to February 11, 2020 |
9 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Section 10 |
Article 10 | |
Current to February 11, 2020 |
10 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Sections 10.01-10.1 |
Articles 10.01-10.1 | |
|
|
Current to February 11, 2020 |
11 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Section 10.1 |
Article 10.1 | |
|
|
Current to February 11, 2020 |
12 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Sections 10.1-11 |
Articles 10.1-11 | |
|
|
Current to February 11, 2020 |
13 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Section 11 |
Article 11 | |
|
|
Current to February 11, 2020 |
14 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Sections 11-11.2 |
Articles 11-11.2 | |
|
|
Current to February 11, 2020 |
15 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Objects, Powers and Duties |
Mission et pouvoirs | |
Sections 11.2-12.1 |
Articles 11.2-12.1 | |
|
|
Current to February 11, 2020 |
16 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 12.1-13 |
Articles 12.1-13 | |
|
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Deposits with amalgamating institutions
13 (1) When a person has deposits with two or more member institutions that amalgamate and continue in |
Cas de fusion
13 (1) En cas de fusion dinstitutions membres, les dépôts quune même personne détenait au moment de la |
Current to February 11, 2020 |
17 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Section 13 |
Article 13 | |
|
|
Current to February 11, 2020 |
18 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Section 14 |
Article 14 | |
|
|
Current to February 11, 2020 |
19 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Section 14 |
Article 14 | |
|
|
Current to February 11, 2020 |
20 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Section 14 |
Article 14 | |
|
|
Current to February 11, 2020 |
21 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Section 14 |
Article 14 | |
|
|
Current to February 11, 2020 |
22 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 14-14.01 |
Articles 14-14.01 | |
|
|
Current to February 11, 2020 |
23 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 14.01-14.1 |
Articles 14.01-14.1 | |
|
|
Current to February 11, 2020 |
24 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 15-17 |
Articles 15-17 | |
|
|
Current to February 11, 2020 |
25 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 17-17.1 |
Articles 17-17.1 | |
|
|
Current to February 11, 2020 |
26 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 17.2-21 |
Articles 17.2-21 | |
|
|
Current to February 11, 2020 |
27 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 21-22 |
Articles 21-22 | |
|
|
Current to February 11, 2020 |
28 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 23-24.1 |
Articles 23-24.1 | |
|
|
Current to February 11, 2020 |
29 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 25-25.2 |
Articles 25-25.2 | |
|
|
Current to February 11, 2020 |
30 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Deposit Insurance |
Assurance-dépôts | |
Sections 25.3-26.01 |
Articles 25.3-26.01 | |
|
|
Current to February 11, 2020 |
31 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Federal Institutions Without Deposit Insurance |
Institutions fédérales sans assurance-dépôts | |
Sections 26.01-26.03 |
Articles 26.01-26.03 | |
|
|
Current to February 11, 2020 |
32 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Federal Institutions Without Deposit Insurance |
Institutions fédérales sans assurance-dépôts | |
Sections 26.03-26.04 |
Articles 26.03-26.04 | |
|
|
Current to February 11, 2020 |
33 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Federal Institutions Without Deposit Insurance |
Institutions fédérales sans assurance-dépôts | |
Sections 26.04-28 |
Articles 26.04-28 | |
|
|
Current to February 11, 2020 |
34 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Inspection of Member Institutions |
Inspection des institutions membres | |
Sections 28-29 |
Articles 28-29 | |
|
|
Current to February 11, 2020 |
35 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Inspection of Member Institutions |
Inspection des institutions membres | |
Sections 29-30 |
Articles 29-30 | |
|
|
Current to February 11, 2020 |
36 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Inspection of Member Institutions |
Inspection des institutions membres | |
Sections 30-31 |
Articles 30-31 | |
|
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Current to February 11, 2020 |
37 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Termination and Cancellation of Insurance |
Résiliation et annulation de lassurance | |
Sections 31-31.1 |
Articles 31-31.1 | |
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|
Current to February 11, 2020 |
38 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Termination and Cancellation of Insurance |
Résiliation et annulation de lassurance | |
Sections 31.1-32 |
Articles 31.1-32 | |
|
|
Current to February 11, 2020 |
39 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Termination and Cancellation of Insurance |
Résiliation et annulation de lassurance | |
Sections 32-34 |
Articles 32-34 | |
|
|
Current to February 11, 2020 |
40 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Termination and Cancellation of Insurance |
Résiliation et annulation de lassurance | |
Sections 34-35 |
Articles 34-35 | |
|
|
Current to February 11, 2020 |
41 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Termination and Cancellation of Insurance |
Résiliation et annulation de lassurance | |
Sections 36-37 |
Articles 36-37 | |
|
|
Current to February 11, 2020 |
42 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Provincial Insuring Arrangements |
Arrangements avec les provinces | |
Sections 37-39 |
Articles 37-39 | |
|
|
Current to February 11, 2020 |
43 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Provincial Insuring Arrangements |
Arrangements avec les provinces | |
Sections 39-39.1 |
Articles 39-39.1 | |
|
|
Current to February 11, 2020 |
44 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver Sections 39.1-39.11 |
Dévolution à la Société et nomination de la Sociétécomme séquestre Articles 39.1-39.11 | |
Current to February 11, 2020 |
45 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver | Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.11-39.13 |
Articles 39.11-39.13 |
Current to February 11, 2020 |
46 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.13 |
Article 39.13 |
Current to February 11, 2020 |
47 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.13 |
Article 39.13 |
Current to February 11, 2020 |
48 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.13 |
Article 39.13 |
Current to February 11, 2020 |
49 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.13 |
Article 39.13 |
Current to February 11, 2020 |
50 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.13-39.14 |
Articles 39.13-39.14 |
Current to February 11, 2020 |
51 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.14-39.15 |
Articles 39.14-39.15 |
Current to February 11, 2020 |
52 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Articles 39.15 |
Current to February 11, 2020 |
53 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Articles 39.15 |
Current to February 11, 2020 |
54 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
55 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
56 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
57 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
58 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
59 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Insolvency or deteriorated financial condition
(7.104) Despite subsections (7.101) and (7.102), an action set out in paragraph (7)(a), (b) or (f) may only be |
Insolvabilité ou détérioration de la situation financière
(7.104) Malgré les paragraphes (7.101) et (7.102), les opérations visées aux alinéas (7)a), b) et f) ne peuvent être accomplies en raison de linsolvabilité ou de la détérioration de la situation financière visée à lalinéa |
Current to February 11, 2020 |
60 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
61 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.15 |
Article 39.15 |
Current to February 11, 2020 |
62 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.15-39.151 |
Articles 39.15-39.151 |
Current to February 11, 2020 |
63 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.151-39.152 |
Articles 39.151-39.152 |
Current to February 11, 2020 |
64 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Section 39.152 |
Article 39.152 |
Current to February 11, 2020 |
65 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.152-39.18 |
Articles 39.152-39.18 |
Current to February 11, 2020 |
66 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Vesting in Corporation and Appointing Corporation as Receiver |
Dévolution à la Société et nomination de la Société comme séquestre | |
Sections 39.18-39.181 |
Articles 39.18-39.181 |
Current to February 11, 2020 |
67 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Non-application of Certain Legislative Provisions |
Non-application de certaines dispositions législatives | |
Sections 39.181-39.19 |
Articles 39.181-39.19 |
Current to February 11, 2020 |
68 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Non-application of Certain Legislative Provisions |
Non-application de certaines dispositions législatives | |
Sections 39.19-39.192 |
Articles 39.19-39.192 |
Current to February 11, 2020 |
69 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Non-application of Certain Legislative Provisions |
Non-application de certaines dispositions législatives | |
Section 39.192 |
Article 39.192 |
Current to February 11, 2020 |
70 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Non-application of Certain Legislative Provisions |
Non-application de certaines dispositions législatives | |
Sections 39.193-39.2 |
Articles 39.193-39.2 |
Current to February 11, 2020 |
71 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Section 39.2 |
Article 39.2 |
Current to February 11, 2020 |
72 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Section 39.2 |
Article 39.2 |
Current to February 11, 2020 |
73 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Section 39.2 |
Article 39.2 |
Current to February 11, 2020 |
74 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Sections 39.201-39.202 |
Articles 39.201-39.202 |
Current to February 11, 2020 |
75 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Sections 39.202-39.22 |
Articles 39.202-39.22 |
Current to February 11, 2020 |
76 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Restructuring Transactions |
Opérations de restructuration | |
Sections 39.22-39.23 |
Articles 39.22-39.23 |
Current to February 11, 2020 |
77 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Compensation |
Indemnité | |
Sections 39.23-39.27 |
Articles 39.23-39.27 |
Sittings and hearings
39.27 (1) An assessor may sit at any place and shall arrange for the sittings and hearings that may be required. |
Séances et auditions
39.27 (1) Lévaluateur peut siéger en tout lieu et prendre les mesures nécessaires à cet effet. |
Current to February 11, 2020 |
78 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Compensation |
Indemnité | |
Sections 39.27-39.28 |
Articles 39.27-39.28 |
Current to February 11, 2020 |
79 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Compensation |
Indemnité | |
Sections 39.28-39.371 |
Articles 39.28-39.371 |
Current to February 11, 2020 |
80 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Creation and Operation of Bridge Institutions |
Constitution et fonctionnement des institutions-relais | |
Sections 39.371-39.3715 |
Articles 39.371-39.3715 |
Current to February 11, 2020 |
81 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Creation and Operation of Bridge Institutions |
Constitution et fonctionnement des institutions-relais | |
Sections 39.3715-39.3718 |
Articles 39.3715-39.3718 |
Current to February 11, 2020 |
82 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Creation and Operation of Bridge Institutions |
Constitution et fonctionnement des institutions-relais | |
Sections 39.3718-39.3721 |
Articles 39.3718-39.3721 |
Current to February 11, 2020 |
83 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Restructuring of Federal Member Institutions |
Restructuration des institutions fédérales membres | |
Creation and Operation of Bridge Institutions |
Constitution et fonctionnement des institutions-relais | |
Sections 39.3721-39.38 |
Articles 39.3721-39.38 |
Current to February 11, 2020 |
84 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Financial |
Dispositions financières | |
Sections 40-44 |
Articles 40-44 | |
|
|
Current to February 11, 2020 |
85 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Staff |
Personnel | |
Sections 44-45.1 |
Articles 44-45.1 | |
|
|
Current to February 11, 2020 |
86 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
No Liability |
Immunité | |
Sections 45.11-45.12 |
Articles 45.11-45.12 | |
|
|
Current to February 11, 2020 |
87 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
No Liability |
Immunité | |
Sections 45.12-45.3 |
Articles 45.12-45.3 | |
|
|
Current to February 11, 2020 |
88 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Confidentiality |
Confidentialité | |
Section 45.3 |
Article 45.3 | |
|
|
Current to February 11, 2020 |
89 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Confidentiality |
Confidentialité | |
Sections 45.3-48 |
Articles 45.3-48 | |
|
|
Current to February 11, 2020 |
90 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Enforcement Provisions |
Infractions et peines | |
Sections 48-51 |
Articles 48-51 | |
|
|
Current to February 11, 2020 |
91 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
Enforcement Provisions |
Infractions et peines | |
Sections 51-54 |
Articles 51-54 | |
|
|
Current to February 11, 2020 |
92 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
93 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
94 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
95 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
96 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
97 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
SCHEDULE |
ANNEXE | |
|
| |
|
|
Current to February 11, 2020 |
98 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
RELATED PROVISIONS |
DISPOSITIONS CONNEXES | |
|
| |
|
|
Current to February 11, 2020 |
99 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
100 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Exception
(2) For the purposes of subparagraph 26.03(1)(c)(iii) and paragraph 26.03(1)(d), deposit has the meaning that |
Exception
(2) Pour lapplication du sous-alinéa 26.03(1)c)(iii) et de lalinéa 26.03(1)d), dépôt sentend au sens que lui donne |
Current to February 11, 2020 |
101 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
102 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
103 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
104 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
105 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
106 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
107 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
108 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
109 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
110 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Canada Deposit Insurance Corporation | Société dassurance-dépôts du Canada | |
AMENDMENTS NOT IN FORCE | MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
111 | À jour au 11 février 2020 | ||
Last amended on May 10, 2019 |
Dernière modification le 10 mai 2019 |
Exhibit 8(d)
CANADA
CONSOLIDATION | CODIFICATION | |
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions | |
R.S.C., 1985, c. C-44 | L.R.C. (1985), ch. C-44 | |
Current to February 11, 2020 | À jour au 11 février 2020 | |
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 | |
Published by the Minister of Justice at the following address: | Publié par le ministre de la Justice à ladresse suivante : | |
http://laws-lois.justice.gc.ca | http://lois-laws.justice.gc.ca |
Current to February 11, 2020 | À jour au 11 février 2020 | |||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Current to February 11, 2020 | iii | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | iv | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | v | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | vi | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | vii | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | viii | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | ix | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | x | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xi | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xii | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Loi canadienne sur les sociétés par actions | |
TABLE OF PROVISIONS | TABLE ANALYTIQUE |
Current to February 11, 2020 | xiii | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 | Dernière modification le 1 janvier 2020 |
Current to February 11, 2020 |
1 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Section 2 |
Article 2 |
Current to February 11, 2020 |
2 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Section 2 |
Article 2 |
Current to February 11, 2020 |
3 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Section 2 |
Article 2 |
Current to February 11, 2020 |
4 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Section 2 |
Article 2 |
Current to February 11, 2020 |
5 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Section 2 |
Article 2 |
Current to February 11, 2020 |
6 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Sections 2-2.1 |
Articles 2-2.1 |
Current to February 11, 2020 |
7 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Interpretation |
Définitions | |
Sections 2.1-3 |
Articles 2.1-3 |
Current to February 11, 2020 |
8 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART I Interpretation and Application |
PARTIE I Définitions et application | |
Application |
Champ dapplication | |
Sections 3-6 |
Articles 3-6 |
Current to February 11, 2020 |
9 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART II Incorporation |
PARTIE II Constitution | |
Sections 6-8 |
Articles 6-8 |
Current to February 11, 2020 |
10 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART II Incorporation |
PARTIE II Constitution | |
Sections 8-10 |
Articles 8-10 |
Current to February 11, 2020 |
11 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART II Incorporation |
PARTIE II Constitution | |
Sections 10-12 |
Articles 10-12 |
Current to February 11, 2020 |
12 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART II Incorporation |
PARTIE II Constitution | |
Sections 12-14 |
Articles 12-14 |
Current to February 11, 2020 |
13 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART II Incorporation |
PARTIE II Constitution | |
Sections 14-15 |
Articles 14-15 |
Current to February 11, 2020 |
14 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART III Capacity and Powers |
PARTIE III Capacité et pouvoirs | |
Sections 15-18 |
Articles 15-18 |
Current to February 11, 2020 |
15 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART III Capacity and Powers |
PARTIE III Capacité et pouvoirs | |
Sections 18-20 |
Articles 18-20 |
Current to February 11, 2020 |
16 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Section 20 |
Article 20 |
Current to February 11, 2020 |
17 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 20-21 |
Articles 20-21 |
Current to February 11, 2020 |
18 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Section 21 |
Article 21 |
Current to February 11, 2020 |
19 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21-21.1 |
Articles 21-21.1 |
Current to February 11, 2020 |
20 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Section 21.1 |
Article 21.1 |
Current to February 11, 2020 |
21 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21.2-21.3 |
Articles 21.2-21.3 |
Current to February 11, 2020 |
22 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21.3-21.31 |
Articles 21.3-21.31 |
Current to February 11, 2020 |
23 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21.31-21.32 |
Articles 21.31-21.32 |
Current to February 11, 2020 |
24 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21.32-21.4 |
Articles 21.32-21.4 |
Current to February 11, 2020 |
25 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 21.4-23 |
Articles 21.4-23 |
Current to February 11, 2020 |
26 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IV Registered Office and Records |
PARTIE IV Siège social et livres | |
Sections 23-25 |
Articles 23-25 |
Current to February 11, 2020 |
27 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 25-26 |
Articles 25-26 |
Current to February 11, 2020 |
28 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Section 26 |
Article 26 |
Current to February 11, 2020 |
29 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 26-27 |
Articles 26-27 |
Current to February 11, 2020 |
30 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 27-28 |
Articles 27-28 |
Current to February 11, 2020 |
31 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 28-29.1 |
Articles 28-29.1 |
Current to February 11, 2020 |
32 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 29.1-31 |
Articles 29.1-31 |
Current to February 11, 2020 |
33 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 31-32 |
Articles 31-32 |
Current to February 11, 2020 |
34 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 32-33 |
Articles 32-33 |
Current to February 11, 2020 |
35 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 34-35 |
Articles 34-35 |
Current to February 11, 2020 |
36 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 35-38 |
Articles 35-38 |
Current to February 11, 2020 |
37 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 38-39 |
Articles 38-39 |
Current to February 11, 2020 |
38 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Section 39 |
Article 39 |
Current to February 11, 2020 |
39 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Section 39 |
Article 39 |
Current to February 11, 2020 |
40 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 39-42 |
Articles 39-42 |
Current to February 11, 2020 |
41 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART V Corporate Finance |
PARTIE V Financement | |
Sections 42-46 |
Articles 42-46 |
Current to February 11, 2020 |
42 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VI Sale of Constrained Shares |
PARTIE VI Vente dactions faisant lobjet de restrictions | |
Section 46 |
Article 46 |
Current to February 11, 2020 |
43 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VI Sale of Constrained Shares |
PARTIE VI Vente dactions faisant lobjet de restrictions | |
Section 47 |
Article 47 |
Current to February 11, 2020 |
44 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Section 48 |
Article 48 |
Current to February 11, 2020 |
45 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 48 |
Article 48 |
Current to February 11, 2020 |
46 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Sections 48-49 |
Articles 48-49 |
Current to February 11, 2020 |
47 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 49 |
Article 49 |
Current to February 11, 2020 |
48 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 49 |
Article 49 |
Current to February 11, 2020 |
49 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 49 |
Article 49 |
Current to February 11, 2020 |
50 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Sections 49-50 |
Articles 49-50 |
Current to February 11, 2020 |
51 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Sections 50-51 |
Articles 50-51 |
Current to February 11, 2020 |
52 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 51 |
Article 51 |
Current to February 11, 2020 |
53 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Section 51 |
Article 51 |
Current to February 11, 2020 |
54 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Sections 51-53 |
Articles 51-53 |
Current to February 11, 2020 |
55 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Interpretation and General |
Définitions et dispositions générales | |
Sections 53-55 |
Articles 53-55 |
Current to February 11, 2020 |
56 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Issue Issuer |
Émission Émetteur | |
Sections 55-58 |
Articles 55-58 |
Current to February 11, 2020 |
57 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Issue Issuer |
Émission Émetteur | |
Sections 58-60 |
Articles 58-60 |
Current to February 11, 2020 |
58 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 60-63 |
Articles 60-63 |
Current to February 11, 2020 |
59 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 63-64 |
Articles 63-64 |
Current to February 11, 2020 |
60 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Section 65 |
Article 65 |
Current to February 11, 2020 |
61 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 65-68 |
Articles 65-68 |
Current to February 11, 2020 |
62 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 68-70 |
Articles 68-70 |
Current to February 11, 2020 |
63 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 70-71 |
Articles 70-71 |
Current to February 11, 2020 |
64 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 71-74 |
Articles 71-74 |
Current to February 11, 2020 |
65 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Purchase |
Acquisition | |
Sections 75-77 |
Articles 75-77 |
Current to February 11, 2020 |
66 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Registration |
Inscription | |
Section 77 |
Article 77 |
Current to February 11, 2020 |
67 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Registration |
Inscription | |
Section 78 |
Article 78 |
Current to February 11, 2020 |
68 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Registration |
Inscription | |
Sections 78-80 |
Articles 78-80 |
Current to February 11, 2020 |
69 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VII Security Certificates, Registers and Transfers |
PARTIE VII Certificats de valeurs mobilières, registres et transferts | |
Registration |
Inscription | |
Sections 80-81 |
Articles 80-81 |
Current to February 11, 2020 |
70 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VIII Trust Indentures |
PARTIE VIII Acte de fiducie | |
Sections 82-83 |
Articles 82-83 |
Current to February 11, 2020 |
71 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VIII Trust Indentures |
PARTIE VIII Acte de fiducie | |
Sections 83-85 |
Articles 83-85 |
Current to February 11, 2020 |
72 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VIII Trust Indentures |
PARTIE VIII Acte de fiducie | |
Sections 85-86 |
Articles 85-86 |
Current to February 11, 2020 |
73 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VIII Trust Indentures |
PARTIE VIII Acte de fiducie | |
Sections 86-89 |
Articles 86-89 |
Current to February 11, 2020 |
74 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART VIII Trust Indentures |
PARTIE VIII Acte de fiducie | |
Sections 89-93 |
Articles 89-93 |
Current to February 11, 2020 |
75 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IX Receivers, Receiver-managers and Sequestrators |
PARTIE IX Séquestres et séquestres-gérants | |
Sections 94-99 |
Articles 94-99 |
Current to February 11, 2020 |
76 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IX Receivers, Receiver-managers and Sequestrators |
PARTIE IX Séquestres et séquestres-gérants | |
Sections 99-101 |
Articles 99-101 |
Current to February 11, 2020 |
77 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART IX Receivers, Receiver-managers and Sequestrators |
PARTIE IX Séquestres et séquestres-gérants | |
Sections 101-103 |
Articles 101-103 |
Current to February 11, 2020 |
78 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 103-104 |
Articles 103-104 |
Current to February 11, 2020 |
79 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 104-105 |
Articles 104-105 |
Current to February 11, 2020 |
80 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 105-106 |
Articles 105-106 |
Current to February 11, 2020 |
81 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 106-107 |
Articles 106-107 |
Current to February 11, 2020 |
82 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 107-108 |
Articles 107-108 |
Current to February 11, 2020 |
83 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 109-110 |
Articles 109-110 |
Current to February 11, 2020 |
84 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 110-111 |
Articles 110-111 |
Current to February 11, 2020 |
85 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 111-112 |
Articles 111-112 |
Current to February 11, 2020 |
86 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 113-114 |
Articles 113-114 |
Current to February 11, 2020 |
87 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 114-115 |
Articles 114-115 |
Current to February 11, 2020 |
88 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 115-117 |
Articles 115-117 |
Current to February 11, 2020 |
89 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 117-118 |
Articles 117-118 |
Current to February 11, 2020 |
90 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 118-119 |
Articles 118-119 |
Current to February 11, 2020 |
91 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 119-120 |
Articles 119-120 |
Current to February 11, 2020 |
92 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Section 120 |
Article 120 |
Current to February 11, 2020 |
93 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Section 120 |
Article 120 |
Current to February 11, 2020 |
94 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 120-121 |
Articles 120-121 |
Current to February 11, 2020 |
95 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 121-122 |
Articles 121-122 |
Current to February 11, 2020 |
96 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 122-123 |
Articles 122-123 |
Current to February 11, 2020 |
97 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 123-124 |
Articles 123-124 |
Current to February 11, 2020 |
98 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Section 124 |
Article 124 |
Current to February 11, 2020 |
99 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART X Directors and Officers |
PARTIE X Administrateurs et dirigeants | |
Sections 124-126 |
Articles 124-126 |
Current to February 11, 2020 |
100 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XI Insider Trading |
PARTIE XI Transactions dinitiés | |
Sections 126-130 |
Articles 126-130 |
Current to February 11, 2020 |
101 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XI Insider Trading |
PARTIE XI Transactions dinitiés | |
Sections 130-131 |
Articles 130-131 |
Calls and puts | Options dachat ou de vente | |
(2) An insider shall not knowingly, directly or indirectly, sell a call or buy a put in respect of a security of the corporation or any of its affiliates. |
(2) Les initiés ne peuvent sciemment, même indirectement, acheter une option de vente ni vendre une option dachat portant sur les valeurs mobilières de la société ou de lune des personnes morales de son groupe. | |
Exception | Exception | |
(3) Despite subsection (1), an insider may sell a security they do not own if they own another security convertible into the security sold or an option or right to acquire the security sold and, within ten days after the sale, they
(a) exercise the conversion privilege, option or right and deliver the security so acquired to the purchaser; or
(b) transfer the convertible security, option or right to the purchaser. |
(3) Par dérogation au paragraphe (1), les initiés peuvent vendre les valeurs mobilières dont ils ne sont pas propriétaires mais qui résultent de la conversion de valeurs mobilières dont ils sont propriétaires ou quils ont loption ou le droit dacquérir, si, dans les dix jours suivant la vente :
a) ou bien ils exercent leur privilège de conversion, leur option ou leur droit et livrent les valeurs mobilières à lacheteur;
b) ou bien ils transfèrent à lacheteur leurs valeurs mobilières convertibles, leur option ou leur droit. | |
Offence | Infraction | |
(4) An insider who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding the greater of one million dollars and three times the profit made, or to imprisonment for a term not exceeding six months or to both.
R.S., 1985, c. C-44, s. 130; 2001, c. 14, s. 54. |
(4) Tout initié qui contrevient aux paragraphes (1) ou (2) commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de 1 000 000 $ ou, sil est plus élevé, dun montant égal au triple du gain réalisé et un emprisonnement maximal de six mois, ou lune de ces peines.
L.R. (1985), ch. C-44, art. 130; 2001, ch. 14, art. 54. | |
Definitions | Définition de initié | |
131 (1) In this section, insider means, with respect to a corporation, |
131 (1) Au présent article, initié, en ce qui concerne une société, désigne lune des personnes suivantes : | |
(a) the corporation; |
a) la société; | |
(b) an affiliate of the corporation; |
b) les personnes morales de son groupe; | |
(c) a director or an officer of the corporation or of any person described in paragraph (b), (d) or (f); |
c) les administrateurs ou dirigeants de celle-ci ou dune personne visée aux alinéas b), d) ou f); | |
(d) a person who beneficially owns, directly or indirectly, shares of the corporation or who exercises control or direction over shares of the corporation, or who has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the corporation not including shares held by the person as underwriter while those shares are in the course of a distribution to the public;
(e) a person, other than a person described in paragraph (f), employed or retained by the corporation or by a person described in paragraph (f); |
d) toute personne qui a la propriété effective directement ou indirectement dactions de la société ou qui exerce le contrôle ou a la haute main sur de telles actions, ou qui possède une combinaison de ces éléments, ces actions comportant un pourcentage de votes attachés à lensemble des actions de la société en circulation supérieur au pourcentage réglementaire, à lexclusion des actions que cette personne détient en qualité de placeur pendant quelles font lobjet dun appel public à lépargne;
e) toute personne à lexclusion de celle visée à lalinéa f) employée par la société ou par une |
Current to February 11, 2020 |
102 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XI Insider Trading |
PARTIE XI Transactions dinitiés | |
Section 131 |
Article 131 |
(f) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the corporation;
(g) a person who received, while they were a person described in any of paragraphs (a) to (f), material confidential information concerning the corporation;
(h) a person who receives material confidential information from a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph; and
(i) a prescribed person. |
personne visée à lalinéa f) ou dont les services sont retenus par elle;
f) toute personne qui exerce ou se propose dexercer une activité commerciale ou professionnelle avec la société ou pour son compte;
g) toute personne qui, pendant quelle était visée par un des alinéas a) à f), a reçu des renseignements confidentiels importants concernant la société;
h) toute personne qui reçoit des renseignements confidentiels importants dune personne visée aux paragraphes (3) ou (3.1) ou au présent paragraphe notamment au présent alinéa quelle sait ou aurait raisonnablement dû savoir quils étaient donnés par une telle personne;
i) toute autre personne visée par les règlements. | |
Expanded definition of security | Présomption relative aux valeurs mobilières | |
(2) For the purposes of this section, the following are deemed to be a security of the corporation: |
(2) Pour lapplication du présent article, sont réputés des valeurs mobilières de la société : | |
(a) a put, call, option or other right or obligation to purchase or sell a security of the corporation; and
(b) a security of another entity, the market price of which varies materially with the market price of the securities of the corporation. |
a) les options notamment de vente ou dachat ou les autres droits ou obligations dacheter ou de vendre des valeurs mobilières de la société;
b) les valeurs mobilières dune autre entité dont le cours varie de façon appréciable en fonction de celui des valeurs mobilières de la société. | |
Deemed insiders | Présomption relative aux initiés | |
(3) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a corporation, or to enter into a business combination with a corporation, is an insider of the corporation with respect to material confidential information obtained from the corporation and is an insider of the corporation for the purposes of subsection (6). |
(3) Pour lapplication du présent article, toute personne qui se propose de faire une offre dachat visant à la mainmise au sens des règlements de valeurs mobilières dune société ou qui se propose de participer à un regroupement dentreprises avec celle-ci est à la fois un initié de la société en ce qui a trait aux renseignements confidentiels importants obtenus de celle-ci et pour lapplication du paragraphe (6). | |
Deemed insiders | Présomption relative aux initiés | |
(3.1) An insider of a person referred to in subsection (3), and an affiliate or associate of such a person, is an insider of the corporation referred to in that subsection. Paragraphs (1)(b) to (i) apply in determining whether a person is such an insider except that references to corporation in those paragraphs are to be read as references to person described in subsection (3). |
(3.1) Un initié au sens des alinéas (1)b) à i), la mention de « société » valant mention dune « personne visée au paragraphe (3) » dune personne visée au paragraphe (3), ainsi quune personne du même groupe que celle-ci ou avec laquelle elle a des liens, est un initié de la société visée à ce paragraphe. | |
Insider trading compensation to persons | Responsabilité : opération effectuée par linitié | |
(4) An insider who purchases or sells a security of the corporation with knowledge of confidential information that, if generally known, might reasonably be expected to |
(4) Linitié qui achète ou vend une valeur mobilière de la société tout en ayant connaissance dun renseignement confidentiel dont il est raisonnable de prévoir que, sil |
Current to February 11, 2020 |
103 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XI Insider Trading |
PARTIE XI Transactions dinitiés | |
Section 131 |
Article 131 |
affect materially the value of any of the securities of the corporation is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that
(a) the insider reasonably believed that the information had been generally disclosed;
(b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or
(c) the purchase or sale of the security took place in the prescribed circumstances. |
était généralement connu, il provoquerait une modification sensible du prix de toute valeur mobilière de la société, est tenu dindemniser le vendeur ou lacheteur des valeurs mobilières, selon le cas, qui a subi des dommages par suite de cette opération, sauf sil établit lun ou lautre des éléments suivants :
a) quil avait des motifs raisonnables de croire que le renseignement avait été préalablement divulgué;
b) que le vendeur ou lacheteur des valeurs mobilières, selon le cas, avait connaissance ou aurait dû, en exerçant une diligence raisonnable, avoir connaissance de ce renseignement;
c) que lachat ou la vente des valeurs mobilières a eu lieu dans les circonstances prévues par règlement. | |
Insider trading compensation to corporation
(5) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances described in paragraph (4)(a). |
Avantages et profits
(5) Il est également redevable envers la société des profits ou avantages obtenus ou à obtenir par lui, suite à cette opération, sauf sil établit lélément visé à lalinéa (4)a). | |
Tipping compensation to persons
(6) An insider of the corporation who discloses to another person confidential information with respect to the corporation that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate for damages any person who subsequently sells securities of the corporation to, or purchases securities of the corporation from, any person that received the information, unless the insider establishes
(a) that the insider reasonably believed that the information had been generally disclosed;
(b) that the information was known, or ought reasonably to have been known, by the person who alleges to have suffered the damages;
(c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (3) or (3.1); or
(d) if the insider is a person described in subsection (3) or (3.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be. |
Responsabilité : divulgation par linitié
(6) Linitié qui communique à quiconque un renseignement confidentiel portant sur la société dont il est raisonnable de prévoir que, sil était généralement connu, il provoquerait une modification sensible du prix de toute valeur mobilière de la société, est tenu dindemniser les personnes qui achètent des valeurs mobilières de la société de, ou vendent de telles valeurs mobilières à, toute personne qui a reçu le renseignement, des dommages subis par suite de cette opération, sauf sil établit lun ou lautre des éléments suivants :
a) quil avait des motifs raisonnables de croire que le renseignement avait été préalablement divulgué;
b) que les personnes qui prétendent avoir subi les dommages avaient connaissance ou auraient dû, en exerçant une diligence raisonnable, avoir connaissance de ce renseignement;
c) que la communication du renseignement était nécessaire dans le cadre des activités commerciales de linitié, sauf sil sagit dun initié visé aux paragraphes (3) ou (3.1);
d) sil sagit dun initié visé aux paragraphes (3) ou (3.1), que la communication du renseignement était nécessaire pour effectuer une offre dachat visant à la mainmise ou un regroupement dentreprises. |
Current to February 11, 2020 |
104 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XI Insider Trading |
PARTIE XI Transactions dinitiés | |
Sections 131-132 |
Articles 131-132 |
Tipping compensation to corporation
(7) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances described in paragraph (6)(a), (c) or (d). |
Avantages et profits
(7) Il est également redevable envers la société des profits ou avantages obtenus ou à obtenir par lui, suite à cette communication, sauf sil établit un des éléments visés aux alinéas (6)a), c) ou d). | |
Measure of damages
(8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing corporation, the court must consider the following:
(a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and
(b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security. |
Évaluation des dommages
(8) Le tribunal peut évaluer les dommages visés aux paragraphes (4) ou (6) selon tout critère quil juge indiqué dans les circonstances. Toutefois, dans le cas où il sagit dune valeur mobilière dune société ayant fait appel au public, il tient compte de ce qui suit :
a) si le demandeur en est lacheteur, le prix payé pour la valeur mobilière moins le cours moyen de celle-ci durant les vingt jours dactivité à la Bourse qui suivent la divulgation du renseignement;
b) si le demandeur en est le vendeur, le cours moyen de la valeur mobilière durant les vingt jours dactivité à la Bourse qui suivent la divulgation du renseignement, moins le prix reçu pour cette valeur mobilière. | |
Liability
(9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary. |
Responsabilité solidaire
(9) Sil y a plusieurs initiés responsables en vertu des paragraphes (4) ou (6) à légard dune seule opération ou dune série dopérations, la responsabilité est solidaire. | |
Limitation
(10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action.
R.S., 1985, c. C-44, s. 131; 2001, c. 14, s. 54. |
Prescription
(10) Toute action tendant à faire valoir un droit découlant des paragraphes (4) à (7) se prescrit par deux ans à compter de la découverte des faits qui y donnent lieu.
L.R. (1985), ch. C-44, art. 131; 2001, ch. 14, art. 54. | |
PART XII | PARTIE XII | |
Shareholders
Place of meetings
132 (1) Meetings of shareholders of a corporation shall be held at the place within Canada provided in the by-laws or, in the absence of such provision, at the place within Canada that the directors determine. |
Actionnaires
Lieu des assemblées
132 (1) Les assemblées dactionnaires se tiennent au Canada, au lieu que prévoient les règlements administratifs ou, à défaut, que choisissent les administrateurs. | |
Meeting outside Canada
(2) Despite subsection (1), a meeting of shareholders of a corporation may be held at a place outside Canada if the |
Assemblée à létranger
(2) Par dérogation au paragraphe (1), les assemblées peuvent se tenir à létranger au lieu que prévoient les |
Current to February 11, 2020 |
105 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 132-133 |
Articles 132-133 |
place is specified in the articles or all the shareholders entitled to vote at the meeting agree that the meeting is to be held at that place. |
statuts ou en tout lieu dont conviennent tous les actionnaires habiles à y voter. | |
Exception
(3) A shareholder who attends a meeting of shareholders held outside Canada is deemed to have agreed to it being held outside Canada except when the shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held. |
Consentement présumé
(3) Lassistance aux assemblées tenues à létranger présume le consentement sauf si lactionnaire y assiste spécialement pour sopposer aux délibérations au motif que lassemblée nest pas régulièrement tenue. | |
Participation in meeting by electronic means
(4) Unless the by-laws otherwise provide, any person entitled to attend a meeting of shareholders may participate in the meeting, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the corporation makes available such a communication facility. A person participating in a meeting by such means is deemed for the purposes of this Act to be present at the meeting. |
Participation aux assemblées par moyen de communication électronique
(4) Sauf disposition contraire des règlements administratifs, toute personne habile à assister à une assemblée dactionnaires peut, conformément aux éventuels règlements, y participer par tout moyen de communication téléphonique, électronique ou autre permettant à tous les participants de communiquer adéquatement entre eux et mis à leur disposition par la société. Elle est alors réputée, pour lapplication de la présente loi, avoir assisté à lassemblée. | |
Meeting held by electronic means
(5) If the directors or the shareholders of a corporation call a meeting of shareholders pursuant to this Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide.
R.S., 1985, c. C-44, s. 132; 2001, c. 14, s. 55. |
Tenue dassemblées par moyen de communication électronique
(5) Les administrateurs ou les actionnaires qui convoquent une assemblée des actionnaires conformément à la présente loi peuvent prévoir que celle-ci sera tenue, conformément aux éventuels règlements, entièrement par un moyen de communication téléphonique, électronique ou autre permettant à tous les participants de communiquer adéquatement entre eux, pourvu que les règlements administratifs permettent une telle assemblée.
L.R. (1985), ch. C-44, art. 132; 2001, ch. 14, art. 55. | |
Calling annual meetings
133 (1) The directors of a corporation shall call an annual meeting of shareholders
(a) not later than eighteen months after the corporation comes into existence; and
(b) subsequently, not later than fifteen months after holding the last preceding annual meeting but no later than six months after the end of the corporations preceding financial year. |
Convocation de lassemblée annuelle
133 (1) Les administrateurs doivent convoquer une assemblée annuelle :
a) dans les dix-huit mois suivant la création de la société;
b) par la suite, dans les quinze mois suivant lassemblée annuelle précédente mais au plus tard dans les six mois suivant la fin de chaque exercice. | |
Calling special meetings
(2) The directors of a corporation may at any time call a special meeting of shareholders. |
Convocation dune assemblée extraordinaire
(2) Les administrateurs peuvent à tout moment convoquer une assemblée extraordinaire. |
Current to February 11, 2020 |
106 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 133-134 |
Articles 133-134 |
Order to delay calling of annual meeting
(3) Despite subsection (1), the corporation may apply to the court for an order extending the time for calling an annual meeting.
R.S., 1985, c. C-44, s. 133; 2001, c. 14, s. 56. |
Prorogation de délais
(3) Malgré le paragraphe (1), la société peut demander au tribunal dordonner la prorogation des délais prévus pour convoquer lassemblée annuelle.
L.R. (1985), ch. C-44, art. 133; 2001, ch. 14, art. 56. | |
Fixing record date
134 (1) The directors may, within the prescribed period, fix in advance a date as the record date for the purpose of determining shareholders
(a) entitled to receive payment of a dividend;
(b) entitled to participate in a liquidation distribution;
(c) entitled to receive notice of a meeting of shareholders;
(d) entitled to vote at a meeting of shareholders; or
(e) for any other purpose. |
Date de référence
134 (1) Les administrateurs peuvent choisir davance, dans le délai réglementaire, la date ultime dinscription, ci-après appelée « date de référence », pour déterminer les actionnaires habiles :
a) soit à recevoir les dividendes;
b) soit à participer au partage consécutif à la liquidation;
c) soit à recevoir avis dune assemblée;
d) soit à voter lors dune assemblée;
e) soit à toute autre fin. | |
No record date fixed
(2) If no record date is fixed,
(a) the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders shall be
(i) at the close of business on the day immediately preceding the day on which the notice is given, or
(ii) if no notice is given, the day on which the meeting is held; and
(b) the record date for the determination of shareholders for any purpose other than to establish a shareholders right to receive notice of a meeting or to vote shall be at the close of business on the day on which the directors pass the resolution relating thereto. |
Absence de fixation de date de référence
(2) À défaut de fixation, constitue la date de référence pour déterminer les actionnaires :
a) habiles à recevoir avis dune assemblée :
(i) le jour précédant celui où cet avis est donné, à lheure de fermeture des bureaux,
(ii) en labsence davis, le jour de lassemblée;
b) ayant qualité à toute fin sauf en ce qui concerne le droit dêtre avisé dune assemblée ou le droit de vote, la date dadoption de la résolution à ce sujet, par les administrateurs, à lheure de fermeture des bureaux. | |
When record date fixed
(3) If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice of the record date must be given within the prescribed period
(a) by advertisement in a newspaper published or distributed in the place where the corporation has its registered office and in each place in Canada where it has a transfer agent or where a transfer of its shares may be recorded; and |
Cas où la date de référence est choisie
(3) La date de référence étant fixée, avis doit en être donné, dans le délai réglementaire, sauf si chacun des détenteurs dactions de la catégorie ou série en cause dont le nom figure au registre des valeurs mobilières, à lheure de la fermeture des bureaux le jour de fixation de la date par les administrateurs, a renoncé par écrit à cet avis :
a) dune part, par insertion dans un journal publié ou diffusé au lieu du siège social de la société et en chaque lieu, au Canada, où elle a un agent de transfert |
Current to February 11, 2020 |
107 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 134-135 |
Articles 134-135 |
(b) by written notice to each stock exchange in Canada on which the shares of the corporation are listed for trading.
(4) [Repealed, 2001, c. 14, s. 57]
R.S., 1985, c. C-44, s. 134; 2001, c. 14, s. 57. |
ou où il est possible dinscrire tout transfert de ses actions;
b) dautre part, par écrit, à chaque bourse de valeurs du Canada où les actions de la société sont cotées.
(4) [Abrogé, 2001, ch. 14, art. 57]
L.R. (1985), ch. C-44, art. 134; 2001, ch. 14, art. 57. | |
Notice of meeting
135 (1) Notice of the time and place of a meeting of shareholders shall be sent within the prescribed period to
(a) each shareholder entitled to vote at the meeting;
(b) each director; and
(c) the auditor of the corporation. |
Avis de lassemblée
135 (1) Avis des date, heure et lieu de lassemblée doit être envoyé dans le délai réglementaire :
a) à chaque actionnaire habile à y voter;
b) à chaque administrateur;
c) au vérificateur. | |
Exception not a distributing corporation
(1.1) In the case of a corporation that is not a distributing corporation, the notice may be sent within a shorter period if so specified in the articles or by-laws. |
Exception
(1.1) Toutefois, dans le cas dune société autre quune société ayant fait appel au public, lavis peut être envoyé dans un délai plus court prévu par les statuts ou les règlements administratifs. | |
Exception shareholders not registered
(2) A notice of a meeting is not required to be sent to shareholders who were not registered on the records of the corporation or its transfer agent on the record date determined under paragraph 134(1)(c) or subsection 134(2), but failure to receive a notice does not deprive a shareholder of the right to vote at the meeting. |
Exception
(2) Il nest pas nécessaire denvoyer lavis aux actionnaires non inscrits sur les registres de la société ou de son agent de transfert à la date de référence déterminée en vertu de lalinéa 134(1)c) ou du paragraphe 134(2), le défaut davis ne privant pas lactionnaire de son droit de vote. | |
Adjournment
(3) If a meeting of shareholders is adjourned for less than thirty days it is not necessary, unless the by-laws otherwise provide, to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned. |
Ajournement
(3) Sauf disposition contraire des règlements administratifs, il suffit, pour donner avis de tout ajournement de moins de trente jours dune assemblée den faire lannonce lors de lassemblée en question. | |
Notice of adjourned meeting
(4) If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of thirty days or more, notice of the adjourned meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate of more than ninety days, subsection 149(1) does not apply. |
Avis
(4) Avis de tout ajournement, en une ou plusieurs fois, pour au moins trente jours doit être donné comme pour une nouvelle assemblée; cependant, le paragraphe 149(1) ne sapplique que dans le cas dun ajournement, en une ou plusieurs fois, de plus de quatre-vingt-dix jours. | |
Business
(5) All business transacted at a special meeting of shareholders and all business transacted at an annual meeting of shareholders, except consideration of the financial |
Délibérations
(5) Tous les points de lordre du jour des assemblées extraordinaires et annuelles sont réputés être des questions spéciales; font exception à cette règle, lexamen des états financiers et du rapport du vérificateur, le |
Current to February 11, 2020 |
108 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 135-137 |
Articles 135-137 |
statements, auditors report, election of directors and reappointment of the incumbent auditor, is deemed to be special business. |
renouvellement de son mandat et lélection des administrateurs, lors de lassemblée annuelle. | |
Notice of business
(6) Notice of a meeting of shareholders at which special business is to be transacted shall state
(a) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon; and
(b) the text of any special resolution to be submitted to the meeting.
R.S., 1985, c. C-44, s. 135; 2001, c. 14, s. 58. |
Avis
(6) Lavis de lassemblée à lordre du jour de laquelle des questions spéciales sont inscrites énonce :
a) leur nature, avec suffisamment de détails pour permettre aux actionnaires de se former un jugement éclairé sur celles-ci;
b) le texte de toute résolution spéciale à soumettre à lassemblée.
L.R. (1985), ch. C-44, art. 135; 2001, ch. 14, art. 58. | |
Waiver of notice
136 A shareholder or any other person entitled to attend a meeting of shareholders may in any manner waive notice of a meeting of shareholders, and their attendance at a meeting of shareholders is a waiver of notice of the meeting, except where they attend a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
R.S., 1985, c. C-44, s. 136; 2001, c. 14, s. 135(E). |
Renonciation à lavis
136 Les personnes habiles à assister à une assemblée, notamment les actionnaires, peuvent toujours, de quelque façon que ce soit, renoncer à lavis de convocation; leur présence à lassemblée équivaut à une telle renonciation, sauf lorsquelles y assistent spécialement pour sopposer aux délibérations au motif que lassemblée nest pas régulièrement convoquée.
L.R. (1985), ch. C-44, art. 136; 2001, ch. 14, art. 135(A). | |
Proposals
137 (1) Subject to subsections (1.1) and (1.2), a registered holder or beneficial owner of shares that are entitled to be voted at an annual meeting of shareholders may
(a) submit to the corporation notice of any matter that the person proposes to raise at the meeting (a proposal); and
(b) discuss at the meeting any matter in respect of which the person would have been entitled to submit a proposal. |
Propositions
137 (1) Sous réserve des paragraphes (1.1) et (1.2), les détenteurs inscrits ou les véritables propriétaires dactions avec droit de vote peuvent lors dune assemblée annuelle :
a) donner avis à la société des questions quils se proposent de soulever, cet avis étant ci-après appelé « proposition »;
b) discuter, au cours de cette assemblée, des questions qui auraient pu faire lobjet de propositions de leur part. | |
Persons eligible to make proposals
(1.1) To be eligible to submit a proposal, a person
(a) must be, for at least the prescribed period, the registered holder or the beneficial owner of at least the prescribed number of outstanding shares of the corporation; or
(b) must have the support of persons who, in the aggregate, and including or not including the person that submits the proposal, have been, for at least the prescribed period, the registered holders, or the beneficial owners of, at least the prescribed number of outstanding shares of the corporation. |
Soumission des propositions
(1.1) Pour soumettre une proposition, toute personne doit :
a) soit avoir été, pendant au moins la durée réglementaire, le détenteur inscrit ou le véritable propriétaire dau moins le nombre réglementaire des actions de la société en circulation;
b) soit avoir eu lappui de personnes qui, pendant au moins la durée réglementaire, collectivement et avec ou sans elle, sont les détenteurs inscrits ou les véritables propriétaires dau moins le nombre réglementaire des actions de la société en circulation. |
Current to February 11, 2020 |
109 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Section 137 |
Article 137 |
Information to be provided
(1.2) A proposal submitted under paragraph (1)(a) must be accompanied by the following information:
(a) the name and address of the person and of the persons supporters, if applicable; and
(b) the number of shares held or owned by the person and the persons supporters, if applicable, and the date the shares were acquired. |
Renseignements à fournir
(1.2) La proposition soumise en vertu de lalinéa (1)a) est accompagnée des renseignements suivants :
a) les nom et adresse de son auteur et des personnes qui lappuient, sil y a lieu;
b) le nombre dactions dont celui-ci, ou les personnes qui lappuient, sil y a lieu, sont les détenteurs inscrits ou les véritables propriétaires ainsi que leur date dacquisition. | |
Information not part of proposal
(1.3) The information provided under subsection (1.2) does not form part of the proposal or of the supporting statement referred to in subsection (3) and is not included for the purposes of the prescribed maximum word limit set out in subsection (3). |
Renseignements non comptés
(1.3) Les renseignements prévus au paragraphe (1.2) ne font pas partie de la proposition ni de lexposé visé au paragraphe (3) et nentrent pas dans le calcul du nombre maximal de mots prévus par règlement et exigé à ce paragraphe. | |
Proof may be required
(1.4) If requested by the corporation within the prescribed period, a person who submits a proposal must provide proof, within the prescribed period, that the person meets the requirements of subsection (1.1). |
Charge de la preuve
(1.4) Sur demande de la société dans le délai réglementaire, lauteur de la proposition est tenu détablir, dans le délai réglementaire, quil remplit les conditions prévues au paragraphe (1.1). | |
Information circular
(2) A corporation that solicits proxies shall set out the proposal in the management proxy circular required by section 150 or attach the proposal thereto. |
Circulaire dinformation
(2) La société qui sollicite des procurations doit faire figurer les propositions dans la circulaire de la direction, exigée à larticle 150 ou les y annexer. | |
Supporting statement
(3) If so requested by the person who submits a proposal, the corporation shall include in the management proxy circular or attach to it a statement in support of the proposal by the person and the name and address of the person. The statement and the proposal must together not exceed the prescribed maximum number of words. |
Déclaration à lappui de la proposition
(3) La société doit, à la demande de lauteur de la proposition, joindre ou annexer à la circulaire de la direction sollicitant des procurations un exposé établi par celui-ci à lappui de sa proposition, ainsi que ses nom et adresse. Lexposé et la proposition, combinés, comportent le nombre maximal de mots prévu par règlement. | |
Nomination for director
(4) A proposal may include nominations for the election of directors if the proposal is signed by one or more holders of shares representing in the aggregate not less than five per cent of the shares or five per cent of the shares of a class of shares of the corporation entitled to vote at the meeting to which the proposal is to be presented, but this subsection does not preclude nominations made at a meeting of shareholders. |
Présentation de la candidature dun administrateur
(4) Les propositions peuvent faire état de candidatures en vue de lélection des administrateurs si elles sont signées par un ou plusieurs actionnaires détenant au moins cinq pour cent des actions ou de celles dune catégorie assorties du droit de vote lors de lassemblée à laquelle les propositions doivent être présentées; le présent paragraphe nempêche pas la présentation de candidatures au cours de lassemblée. | |
Exemptions
(5) A corporation is not required to comply with subsections (2) and (3) if |
Exemptions
(5) La société nest pas tenue de se conformer aux paragraphes (2) et (3) dans lun ou lautre des cas suivants : |
Current to February 11, 2020 |
110 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Section 137 |
Article 137 |
(a) the proposal is not submitted to the corporation at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in connection with the previous annual meeting of shareholders;
(b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers or security holders;
(b.1) it clearly appears that the proposal does not relate in a significant way to the business or affairs of the corporation;
(c) not more than the prescribed period before the receipt of a proposal, a person failed to present, in person or by proxy, at a meeting of shareholders, a proposal that at the persons request, had been included in a management proxy circular relating to the meeting;
(d) substantially the same proposal was submitted to shareholders in a management proxy circular or a dissidents proxy circular relating to a meeting of shareholders held not more than the prescribed period before the receipt of the proposal and did not receive the prescribed minimum amount of support at the meeting; or
(e) the rights conferred by this section are being abused to secure publicity. |
a) la proposition ne lui a pas été soumise avant le délai réglementaire précédant lexpiration dun délai dun an à compter de la date de lavis de convocation de la dernière assemblée annuelle envoyé aux actionnaires;
b) il apparaît nettement que la proposition a pour objet principal de faire valoir, contre la société ou ses administrateurs, ses dirigeants ou les détenteurs de ses valeurs mobilières, une réclamation personnelle ou dobtenir deux la réparation dun grief personnel;
b.1) il apparaît nettement que la proposition nest pas liée de façon importante aux activités commerciales ou aux affaires internes de la société;
c) au cours du délai réglementaire précédant la réception de sa proposition, la personne ou son fondé de pouvoir avait omis de présenter, à une assemblée, une proposition que, à sa demande, la société avait fait figurer dans une circulaire de la direction sollicitant des procurations à loccasion de cette assemblée;
d) une proposition à peu près identique figurant dans une circulaire de la direction ou dun dissident sollicitant des procurations, a été présentée aux actionnaires à une assemblée tenue dans le délai réglementaire précédant la réception de la proposition et na pas reçu lappui nécessaire prévu par les règlements;
e) dans un but de publicité, il y a abus des droits que confère le présent article. | |
Corporation may refuse to include proposal
(5.1) If a person who submits a proposal fails to continue to hold or own the number of shares referred to in subsection (1.1) up to and including the day of the meeting, the corporation is not required to set out in the management proxy circular, or attach to it, any proposal submitted by that person for any meeting held within the prescribed period following the date of the meeting. |
Refus de prendre en compte la proposition
(5.1) Dans le cas où lauteur de la proposition ne demeure pas le détenteur inscrit ou le véritable propriétaire des actions visées au paragraphe (1.1) jusquà la tenue de lassemblée, la société peut refuser de faire figurer dans la circulaire de la direction toute autre proposition soumise par celui-ci dans le délai réglementaire suivant la tenue de lassemblée. | |
Immunity
(6) No corporation or person acting on its behalf incurs any liability by reason only of circulating a proposal or statement in compliance with this section. |
Immunité
(6) Ni la société ni les personnes agissant en son nom nengagent leur responsabilité en diffusant une proposition ou un exposé en conformité avec le présent article. | |
Notice of refusal
(7) If a corporation refuses to include a proposal in a management proxy circular, the corporation shall, within the prescribed period after the day on which it receives the proposal or the day on which it receives the proof of ownership under subsection (1.4), as the case may be, |
Avis de refus
(7) La société qui a lintention de refuser de joindre une proposition à la circulaire de la direction sollicitant des procurations doit, dans le délai réglementaire suivant la réception par la société de la preuve exigée en vertu du paragraphe (1.4) ou de la réception de la proposition, |
Current to February 11, 2020 |
111 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 137-138 |
Articles 137-138 |
notify in writing the person submitting the proposal of its intention to omit the proposal from the management proxy circular and of the reasons for the refusal. |
selon le cas, en donner par écrit un avis motivé à la personne qui la soumise. | |
Person may apply to court
(8) On the application of a person submitting a proposal who claims to be aggrieved by a corporations refusal under subsection (7), a court may restrain the holding of the meeting to which the proposal is sought to be presented and make any further order it thinks fit. |
Demande de lauteur de la proposition
(8) Sur demande de lauteur de la proposition qui prétend avoir subi un préjudice suite au refus de la société exprimé conformément au paragraphe (7), le tribunal peut, par ordonnance, prendre toute mesure quil estime indiquée et notamment empêcher la tenue de lassemblée à laquelle la proposition devait être présentée. | |
Corporations application to court
(9) The corporation or any person claiming to be aggrieved by a proposal may apply to a court for an order permitting the corporation to omit the proposal from the management proxy circular, and the court, if it is satisfied that subsection (5) applies, may make such order as it thinks fit. |
Demande de la société
(9) La société ou toute personne qui prétend quune proposition lui cause un préjudice peut demander au tribunal une ordonnance autorisant la société à ne pas joindre la proposition à la circulaire de la direction sollicitant des procurations; le tribunal, sil est convaincu que le paragraphe (5) sapplique, peut rendre toute décision quil estime pertinente. | |
Director entitled to notice
(10) An applicant under subsection (8) or (9) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel.
R.S., 1985, c. C-44, s. 137; 2001, c. 14, s. 59; 2011, c. 21, s. 53(F). |
Le directeur est fondé à recevoir avis
(10) Lauteur de la demande en vertu des paragraphes (8) ou (9) doit en donner avis au directeur; celui-ci peut comparaître en personne ou par ministère davocat.
L.R. (1985), ch. C-44, art. 137; 2001, ch. 14, art. 59; 2011, ch. 21, art. | |
List of shareholders entitled to receive notice
138 (1) A corporation shall prepare an alphabetical list of its shareholders entitled to receive notice of a meeting, showing the number of shares held by each shareholder,
(a) if a record date is fixed under paragraph 134(1)(c), not later than ten days after that date; or
(b) if no record date is fixed, on the record date established under paragraph 134(2)(a). |
Liste des actionnaires : avis dune assemblée
138 (1) La société dresse une liste alphabétique des actionnaires habiles à recevoir avis dune assemblée, en y mentionnant le nombre dactions détenues par chacun :
a) dans les dix jours suivant la date de référence, si elle est fixée en vertu de lalinéa 134(1)c);
b) à défaut dune telle fixation, à la date de référence établie en vertu de lalinéa 134(2)a). | |
Voting list if record date fixed
(2) If a record date for voting is fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after the record date, an alphabetical list of shareholders entitled to vote as of the record date at a meeting of shareholders that shows the number of shares held by each shareholder. |
Liste des actionnaires habiles à voter : date de référence
(2) Si la date de référence a été fixée en vertu de lalinéa 134(1)d), la société dresse, au plus tard dix jours après cette date, une liste alphabétique des actionnaires habiles à exercer les droits de vote attachés aux actions figurant en regard de leur nom. | |
Voting list if no record date fixed
(3) If a record date for voting is not fixed under paragraph 134(1)(d), the corporation shall prepare, not later than 10 days after the record date that is fixed under paragraph 134(1)(c) or not later than the record date that |
Liste des actionnaires habiles à voter : aucune date de référence
(3) Si la date de référence na pas été fixée en vertu de lalinéa 134(1)d), la société dresse, au plus tard dix jours après la date de référence fixée en vertu de lalinéa 134(1)c) ou au plus tard à la date de référence prévue à |
Current to February 11, 2020 |
112 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 138-140 |
Articles 138-140 |
is established under paragraph 134(2)(a), as the case may be, an alphabetical list of shareholders who are entitled to vote as of the record date that shows the number of shares held by each shareholder. |
lalinéa 134(2)a), selon le cas, une liste alphabétique des actionnaires habiles à exercer les droits de vote attachés aux actions figurant en regard de leur nom. | |
Entitlement to vote
(3.1) A shareholder whose name appears on a list prepared under subsection (2) or (3) is entitled to vote the shares shown opposite their name at the meeting to which the list relates. |
Habilité à voter
(3.1) Les actionnaires dont le nom apparaît sur la liste dressée en vertu des paragraphes (2) ou (3) sont habiles à exercer les droits de vote attachés aux actions figurant en regard de leur nom. | |
Examination of list
(4) A shareholder may examine the list of shareholders
(a) during usual business hours at the registered office of the corporation or at the place where its central securities register is maintained; and
(b) at the meeting of shareholders for which the list was prepared.
R.S., 1985, c. C-44, s. 138; 2001, c. 14, s. 60; 2018, c. 8, s. 16(E). |
Examen de la liste
(4) Les actionnaires peuvent prendre connaissance de la liste :
a) au siège social de la société ou au lieu où est tenu son registre central des valeurs mobilières, pendant les heures normales douverture;
b) lors de lassemblée pour laquelle elle a été dressée.
L.R. (1985), ch.
C-44, art. 138; 2001, ch. 14, art. 60; 2018, ch. 8, art. | |
Quorum
139 (1) Unless the by-laws otherwise provide, a quorum of shareholders is present at a meeting of shareholders, irrespective of the number of persons actually present at the meeting, if the holders of a majority of the shares entitled to vote at the meeting are present in person or represented by proxy. |
Quorum
139 (1) Sauf disposition contraire des règlements administratifs, le quorum est atteint quel que soit le nombre de personnes effectivement présentes, lorsque les détenteurs dactions disposant de plus de cinquante pour cent des voix sont présents ou représentés. | |
Opening quorum sufficient
(2) If a quorum is present at the opening of a meeting of shareholders, the shareholders present may, unless the by-laws otherwise provide, proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting. |
Existence du quorum à louverture
(2) Sauf disposition contraire des règlements administratifs, il suffit que le quorum soit atteint à louverture de lassemblée pour que les actionnaires puissent délibérer. | |
Adjournment
(3) If a quorum is not present at the opening of a meeting of shareholders, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other business. |
Ajournement
(3) En labsence de quorum à louverture de lassemblée, les actionnaires présents ne peuvent délibérer que sur son ajournement à une date, une heure et en un lieu précis. | |
One shareholder meeting
(4) If a corporation has only one shareholder, or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.
1974-75-76, c. 33, s. 133; 1978-79, c. 9, ss. 1(F), 41. |
Assemblée avec un seul actionnaire
(4) Lassemblée peut être tenue par le seul actionnaire de la société, par le seul titulaire dune seule catégorie ou série dactions ou par son fondé de pouvoir.
1974-75-76, ch. 33, art. 133; 1978-79, ch. 9, art. 1(F) et 41. | |
Right to vote
140 (1) Unless the articles otherwise provide, each share of a corporation entitles the holder thereof to one vote at a meeting of shareholders. |
Droit de vote
140 (1) Sauf disposition contraire des statuts, lactionnaire dispose, lors de lassemblée, dune voix par action. |
Current to February 11, 2020 |
113 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 140-141 |
Articles 140-141 |
Representative
(2) If a body corporate or association is a shareholder of a corporation, the corporation shall recognize any individual authorized by a resolution of the directors or governing body of the body corporate or association to represent it at meetings of shareholders of the corporation. |
Représentant
(2) La société doit permettre à tout particulier accrédité par résolution des administrateurs ou de la direction dune personne morale ou dune association faisant partie de ses actionnaires, de représenter ces dernières à ses assemblées. | |
Powers of representative
(3) An individual authorized under subsection (2) may exercise on behalf of the body corporate or association all the powers it could exercise if it were an individual shareholder. |
Pouvoirs du représentant
(3) Le particulier accrédité en vertu du paragraphe (2) peut exercer, pour le compte de la personne morale ou de lassociation quil représente, tous les pouvoirs dun actionnaire. | |
Joint shareholders
(4) Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present, in person or by proxy, vote, they shall vote as one on the shares jointly held by them.
R.S., 1985, c. C-44, s. 140; 2001, c. 14, s. 135(E). |
Coactionnaires
(4) Sauf disposition contraire des règlements administratifs, si plusieurs personnes détiennent des actions conjointement, le codétenteur présent à une assemblée peut, en labsence des autres, exercer le droit de vote attaché aux actions; au cas où plusieurs codétenteurs sont présents ou représentés, ils votent comme un seul actionnaire.
L.R. (1985), ch. C-44, art. 140; 2001, ch. 14, art. 135(A). | |
Voting
141 (1) Unless the by-laws otherwise provide, voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting. |
Vote
141 (1) Sauf disposition contraire des règlements administratifs, le vote lors dune assemblée se fait à main levée ou, à la demande de tout actionnaire ou fondé de pouvoir habile à voter, au scrutin secret. | |
Ballot
(2) A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands. |
Scrutin secret
(2) Les actionnaires ou les fondés de pouvoir peuvent demander un vote au scrutin secret avant ou après tout vote à main levée. | |
Electronic voting
(3) Despite subsection (1), unless the by-laws otherwise provide, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the corporation makes available such a communication facility. |
Vote par moyen de communication électronique
(3) Malgré le paragraphe (1) et sauf disposition contraire des règlements administratifs, le vote mentionné à ce paragraphe peut être tenu, conformément aux éventuels règlements, entièrement par un moyen de communication téléphonique, électronique ou autre offert par la société. | |
Voting while participating electronically
(4) Unless the by-laws otherwise provide, any person participating in a meeting of shareholders under subsection 132(4) or (5) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the corporation has made available for that purpose.
R.S., 1985, c. C-44, s. 141; 2001, c. 14, s. 61. |
Vote en cas de participation par moyen de communication électronique
(4) Sauf disposition contraire des règlements administratifs, toute personne participant à une assemblée des actionnaires mentionnée aux paragraphes 132(4) ou (5) et habile à voter à cette assemblée, peut voter, conformément aux éventuels règlements, par le moyen de communication téléphonique, électronique ou autre mis à sa disposition par la société à cette fin.
L.R. (1985), ch. C-44, art. 141; 2001, ch. 14, art. 61. |
Current to February 11, 2020 |
114 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 142-143 |
Articles 142-143 |
Resolution in lieu of meeting
142 (1) Except where a written statement is submitted by a director under subsection 110(2) or by an auditor under subsection 168(5),
(a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and
(b) a resolution in writing dealing with all matters required by this Act to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Act relating to meetings of shareholders. |
Résolution tenant lieu dassemblée
142 (1) À lexception de la déclaration écrite présentée par lun des administrateurs en vertu du paragraphe 110(2) ou par le vérificateur en vertu du paragraphe 168(5), la résolution écrite, signée de tous les actionnaires habiles à voter en loccurrence lors de lassemblée :
a) a la même valeur que si elle avait été adoptée lors de lassemblée;
b) répond aux conditions de la présente loi relatives aux assemblées, si elle porte sur toutes les questions qui doivent, selon la présente loi, être inscrites à lordre du jour de lassemblée. | |
Filing resolution
(2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders. |
Dépôt de la résolution
(2) Un exemplaire des résolutions visées au paragraphe (1) doit être conservé avec les procès-verbaux des assemblées. | |
Evidence
(3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
R.S., 1985, c. C-44, s. 142; 2001, c. 14, s. 62. |
Preuve
(3) Sauf sil y a demande dun vote par scrutin, linscription au procès-verbal de lassemblée précisant que le président a déclaré quune résolution a été adoptée ou rejetée fait foi, sauf preuve contraire, de ce fait, sans quil soit nécessaire de prouver le nombre ou la proportion des votes en faveur de cette résolution ou contre elle.
L.R. (1985), ch. C-44, art. 142; 2001, ch. 14, art. 62. | |
Requisition of meeting
143 (1) The holders of not less than five per cent of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition. |
Demande de convocation
143 (1) Les détenteurs de cinq pour cent au moins des actions émises par la société et ayant le droit de vote à lassemblée dont la tenue est demandée peuvent exiger des administrateurs la convocation dune assemblée aux fins énoncées dans leur requête. | |
Form
(2) The requisition referred to in subsection (1), which may consist of several documents of like form each signed by one or more shareholders, shall state the business to be transacted at the meeting and shall be sent to each director and to the registered office of the corporation. |
Forme
(2) La requête visée au paragraphe (1), qui peut consister en plusieurs documents de forme analogue signés par au moins lun des actionnaires, énonce les points inscrits à lordre du jour de la future assemblée et est envoyée à chaque administrateur ainsi quau siège social de la société. | |
Directors calling meeting
(3) On receiving the requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless
(a) a record date has been fixed under paragraph 134(1)(c) and notice of it has been given under subsection 134(3); |
Convocation de lassemblée par les administrateurs
(3) Les administrateurs convoquent une assemblée dès réception de la requête visée au paragraphe (1), pour délibérer des questions qui y sont énoncées sauf dans lun ou lautre des cas suivants : |
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115 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 143-144 |
Articles 143-144 |
(b) the directors have called a meeting of shareholders and have given notice thereof under section 135; or
(c) the business of the meeting as stated in the requisition includes matters described in paragraphs 137(5)(b) to (e). |
a) lavis dune date de référence fixée en vertu de lalinéa 134(1)c) a été donné conformément au paragraphe 134(3);
b) ils ont déjà convoqué une assemblée et donné lavis prévu à larticle 135;
c) les questions à lordre du jour énoncées dans la requête portent sur les cas visés aux alinéas 137(5)b) à e). | |
Shareholder calling meeting
(4) If the directors do not within twenty-one days after receiving the requisition referred to in subsection (1) call a meeting, any shareholder who signed the requisition may call the meeting. |
Convocation de lassemblée par les actionnaires
(4) Faute par les administrateurs de convoquer lassemblée dans les vingt et un jours suivant la réception de la requête visée au paragraphe (1), tout signataire de celle-ci peut le faire. | |
Procedure
(5) A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws, this Part and Part XIII. |
Procédure
(5) Lassemblée prévue au présent article doit être convoquée, autant que possible, dune manière conforme aux règlements administratifs, à la présente partie et à la partie XIII. | |
Reimbursement
(6) Unless the shareholders otherwise resolve at a meeting called under subsection (4), the corporation shall reimburse the shareholders the expenses reasonably incurred by them in requisitioning, calling and holding the meeting.
R.S., 1985, c. C-44, s. 143; 2001, c. 14, s. 63. |
Remboursement
(6) Sauf adoption par les actionnaires dune résolution à leffet contraire lors dune assemblée convoquée en vertu du paragraphe (4), la société rembourse aux actionnaires les dépenses normales quils ont prises en charge pour demander, convoquer et tenir lassemblée.
L.R. (1985), ch. C-44, art. 143; 2001, ch. 14, art. 63. | |
Meeting called by court
144 (1) A court, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders or the Director, may order a meeting of a corporation to be called, held and conducted in the manner that the court directs, if
(a) it is impracticable to call the meeting within the time or in the manner in which those meetings are to be called;
(b) it is impracticable to conduct the meeting in the manner required by this Act or the by-laws; or
(c) the court thinks that the meeting should be called, held and conducted within the time or in the manner it directs for any other reason. |
Convocation de lassemblée par le tribunal
144 (1) Sil lestime à propos, notamment lorsque la convocation régulière dune assemblée ou la tenue de celle-ci selon les règlements administratifs et la présente loi est pratiquement impossible, le tribunal peut, à la demande dun administrateur, dun actionnaire habile à voter ou du directeur, prévoir, par ordonnance, la convocation et la tenue dune assemblée conformément à ses directives. | |
Varying quorum
(2) Without restricting the generality of subsection (1), the court may order that the quorum required by the by-laws or this Act be varied or dispensed with at a meeting called, held and conducted pursuant to this section. |
Modification du quorum
(2) Sans quil soit porté atteinte au caractère général de la règle énoncée au paragraphe (1), le tribunal peut, à loccasion dune assemblée convoquée et tenue en application du présent article, ordonner la modification |
Current to February 11, 2020 |
116 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 144-146 |
Articles 144-146 |
ou la dispense du quorum exigé par les règlements administratifs ou la présente loi. | ||
Valid meeting
(3) A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the corporation duly called, held and conducted.
R.S., 1985, c. C-44, s. 144; 2001, c. 14, s. 64. |
Validité de lassemblée
(3) Lassemblée convoquée et tenue en application du présent article est, à toutes fins, régulière.
L.R. (1985), ch. C-44, art. 144; 2001, ch. 14, art. 64. | |
Court review of election
145 (1) A corporation or a shareholder or director may apply to a court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation. |
Révision dune élection par le tribunal
145 (1) La société, ainsi que tout actionnaire ou administrateur, peut demander au tribunal de trancher tout différend relatif à lélection dun administrateur ou à la nomination dun vérificateur. | |
Powers of court
(2) On an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute;
(b) an order declaring the result of the disputed election or appointment;
(c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the corporation until a new election is held or appointment made; and
(d) an order determining the voting rights of shareholders and of persons claiming to own shares.
R.S., 1985, c. C-44, s. 145; 2001, c. 14, s. 65(F). |
Pouvoirs du tribunal
(2) Sur demande présentée en vertu du présent article, le tribunal peut, par ordonnance, prendre toute mesure quil estime pertinente et notamment :
a) enjoindre aux administrateurs ou vérificateur, dont lélection ou la nomination est contestée, de sabstenir dagir jusquau règlement du litige;
b) proclamer le résultat de lélection ou de la nomination litigieuse;
c) ordonner une nouvelle élection ou une nouvelle nomination en donnant des directives pour la conduite, dans lintervalle, des activités commerciales et des affaires internes de la société;
d) préciser les droits de vote des actionnaires et des personnes prétendant être propriétaires dactions.
L.R. (1985), ch. C-44, art. 145; 2001, ch. 14, art. 65(F). | |
Pooling agreement
145.1 A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as provided in the agreement.
2001, c. 14, s. 66. |
Convention de vote
145.1 Des actionnaires peuvent conclure entre eux une convention écrite régissant lexercice de leur droit de vote.
2001, ch. 14, art. 66. | |
Unanimous shareholder agreement
146 (1) An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation is valid. |
Convention unanime des actionnaires
146 (1) Est valide, si elle est par ailleurs licite, la convention écrite conclue par tous les actionnaires dune société soit entre eux, soit avec des tiers, qui restreint, en tout ou en partie, les pouvoirs des administrateurs de gérer les activités commerciales et les affaires internes de la société ou den surveiller la gestion. |
Current to February 11, 2020 |
117 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XII Shareholders |
PARTIE XII Actionnaires | |
Sections 146-147 |
Articles 146-147 |
Declaration by single shareholder
(2) If a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, the declaration is deemed to be a unanimous shareholder agreement. |
Déclaration de lactionnaire unique
(2) Est réputée être une convention unanime des actionnaires la déclaration écrite de lunique et véritable propriétaire de la totalité des actions émises de la société, qui restreint, en tout ou en partie, les pouvoirs des administrateurs de gérer les activités commerciales et les affaires internes de la société ou den surveiller la gestion. | |
Constructive party
(3) A purchaser or transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement. |
Présomption
(3) Lacquéreur ou le cessionnaire des actions assujetties à une convention unanime des actionnaires est réputé être partie à celle-ci. | |
When no notice given
(4) If notice is not given to a purchaser or transferee of the existence of a unanimous shareholder agreement, in the manner referred to in subsection 49(8) or otherwise, the purchaser or transferee may, no later than 30 days after they become aware of the existence of the unanimous shareholder agreement, rescind the transaction by which they acquired the shares. |
Avis non donné
(4) Si lacquéreur ou le cessionnaire nest pas avisé de lexistence de la convention unanime des actionnaires par une mention ou un renvoi visés au paragraphe 49(8) ou autrement, il peut, dans les trente jours après avoir pris connaissance de son existence, annuler lopération par laquelle il est devenu acquéreur ou cessionnaire. | |
Rights of shareholder
(5) To the extent that a unanimous shareholder agreement restricts the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, parties to the unanimous shareholder agreement who are given that power to manage or supervise the management of the business and affairs of the corporation have all the rights, powers, duties and liabilities of a director of the corporation, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 119, to the same extent. |
Droits des parties à la convention
(5) Dans la mesure où la convention unanime des actionnaires restreint le pouvoir des administrateurs de gérer les activités commerciales et les affaires internes de la société ou den surveiller la gestion, les droits, pouvoirs, obligations et responsabilités dun administrateur notamment les moyens de défense dont il peut se prévaloir qui découlent dune règle de droit sont dévolus aux parties à la convention auxquelles est conféré ce pouvoir; et les administrateurs sont déchargés des obligations et responsabilités corrélatives, notamment de la responsabilité visée à larticle 119 dans la même mesure. | |
Discretion of shareholders
(6) Nothing in this section prevents shareholders from fettering their discretion when exercising the powers of directors under a unanimous shareholder agreement.
R.S., 1985, c. C-44, s. 146; 1994, c. 24, s. 15(F); 2001, c. 14, s. 66. |
Précision
(6) Il est entendu que le présent article nempêche pas les actionnaires de lier à lavance leur discrétion lorsquils exercent les pouvoirs des administrateurs aux termes dune convention unanime des actionnaires.
L.R. (1985), ch. C-44, art. 146; 1994, ch. 24, art. 15(F); 2001, ch. 14, art. 66. | |
PART XIII
Proxies
Definitions
147 In this Part,
form of proxy means a written or printed form that, on completion and execution or, in Quebec, on signing by or |
PARTIE XIII
Procurations
Définitions
147 Les définitions qui suivent sappliquent à la présente partie.
courtier attitré [Abrogée, 2001, ch. 14, art. 67] |
Current to February 11, 2020 |
118 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Section 147 |
Article 147 |
on behalf of a shareholder, becomes a proxy; (formulaire de procuration)
intermediary means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes
(a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction;
(b) a securities depositary;
(c) a financial institution;
(d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer;
(e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act;
(f) a nominee of a person referred to in any of paragraphs (a) to (e); and
(g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security. (intermédiaire)
proxy means a completed and executed or, in Quebec, signed form of proxy by means of which a shareholder appoints a proxyholder to attend and act on the shareholders behalf at a meeting of shareholders; (procuration)
registrant [Repealed, 2001, c. 14, s. 67]
solicit or solicitation
(a) includes
(i) a request for a proxy whether or not accompanied by or included in a form of proxy,
(ii) a request to execute or not to execute or, in Quebec, to sign or not to sign a form of proxy or to revoke a proxy,
(iii) the sending of a form of proxy or other communication to a shareholder under circumstances |
formulaire de procuration Formulaire manuscrit, dactylographié ou imprimé qui, une fois rempli et signé par lactionnaire ou pour son compte, devient une procuration. (form of proxy)
intermédiaire Personne détenant des valeurs mobilières pour le compte dune autre qui nest pas le détenteur inscrit de celles-ci, notamment :
a) un courtier ou un négociant en valeurs mobilières tenu dêtre enregistré pour faire le commerce des valeurs mobilières en vertu de toute loi applicable;
b) le dépositaire de valeurs mobilières;
c) une institution financière;
d) en ce qui concerne une agence de compensation et de dépôt, un négociant en valeurs mobilières, une société de fiducie, une banque ou toute autre personne notamment une autre agence de compensation ou de dépôt au nom duquel ou de laquelle lagence ou la personne quelle désigne détient les titres dun émetteur;
e) un fiduciaire ou tout administrateur dun régime enregistré dépargne-retraite, dun fonds de revenu de retraite ou dun régime dépargne-études autogérés, ou autre régime dépargne ou de placement autogéré comparable, enregistré en vertu de la Loi de limpôt sur le revenu;
f) une personne désignée par une personne visée à lun des alinéas a) à e);
g) toute personne qui exerce des fonctions comparables à celles exercées par des personnes visées à lun des alinéas a) à e) et qui détient une valeur mobilière nominative, à son nom ou à celui de la personne visée à lalinéa f), pour le compte dune autre personne qui nest pas le détenteur inscrit de cette valeur mobilière. (intermediary)
procuration Formulaire de procuration rempli et signé par lequel lactionnaire nomme un fondé de pouvoir pour assister et agir en son nom aux assemblées. (proxy)
sollicitation
a) Sont assimilés à la sollicitation :
(i) la demande de procuration dont est assorti ou non le formulaire de procuration,
(ii) la demande de signature ou de non-signature du formulaire de procuration ou de révocation de procuration, |
Current to February 11, 2020 |
119 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 147-148 |
Articles 147-148 |
reasonably calculated to result in the procurement, withholding or revocation of a proxy, and
(iv) the sending of a form of proxy to a shareholder under section 149; but
(b) does not include
(i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
(ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy,
(iii) the sending by an intermediary of the documents referred to in section 153,
(iv) a solicitation by a person in respect of shares of which the person is the beneficial owner,
(v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision,
(vi) a communication for the purposes of obtaining the number of shares required for a shareholder proposal under subsection 137(1.1), or
(vii) a communication, other than a solicitation by or on behalf of the management of the corporation, that is made to shareholders, in any circumstances that may be prescribed; (sollicitation)
solicitation by or on behalf of the management of a corporation means a solicitation by any person pursuant to a resolution or instructions of, or with the acquiescence of, the directors or a committee of the directors. (sollicitation effectuée par la direction ou pour son compte)
R.S., 1985, c.
C-44, s. 147; 2001, c. 14, ss. 67, 135(E); 2011, c. 21, s. |
(iii) lenvoi dun formulaire de procuration ou de toute communication aux actionnaires, concerté en vue de lobtention, du refus ou de la révocation dune procuration,
(iv) lenvoi dun formulaire de procuration aux actionnaires conformément à larticle 149;
b) sont exclus de la présente définition :
(i) lenvoi dun formulaire de procuration en réponse à la demande spontanément faite par un actionnaire ou pour son compte,
(ii) laccomplissement dactes dadministration ou de services professionnels pour le compte dune personne sollicitant une procuration,
(iii) lenvoi par un intermédiaire des documents visés à larticle 153,
(iv) la sollicitation faite par une personne pour des actions dont elle est le véritable propriétaire,
(v) lannonce publique au sens des règlements par lactionnaire de ses intentions de vote, motifs à lappui,
(vi) toute communication en vue dobtenir le nombre dactions requis pour la présentation dune proposition par un actionnaire en conformité avec le paragraphe 137(1.1),
(vii) toute communication, autre quune sollicitation effectuée par la direction ou pour son compte, faite aux actionnaires dans les circonstances réglementaires. (solicit or solicitation)
sollicitation effectuée par la direction ou pour son compte Sollicitation faite par toute personne, à la suite dune résolution ou dinstructions ou avec lapprobation des administrateurs ou dun comité du conseil dadministration. (solicitation by or on behalf of the management of a corporation)
L.R. (1985), ch. C-44, art. 147; 2001, ch. 14, art. 67 et 135(A); 2011, ch. 21, art. 54(A). | |
Appointing proxyholder
148 (1) A shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy. |
Nomination dun fondé de pouvoir
148 (1) Lactionnaire habile à voter lors dune assemblée peut, par procuration, nommer un fondé de pouvoir ainsi que plusieurs suppléants qui peuvent ne pas être actionnaires, aux fins dassister à cette assemblée et dy agir dans les limites prévues à la procuration. |
Current to February 11, 2020 |
120 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 148-149 |
Articles 148-149 |
Execution or signing of proxy
(2) A proxy shall be executed or, in Quebec, signed by the shareholder or by the shareholders personal representative authorized in writing. |
Signature de la procuration
(2) Lactionnaire ou son représentant personnel autorisé par écrit doit signer la procuration. | |
Validity of proxy
(3) A proxy is valid only at the meeting in respect of which it is given or any adjournment thereof. |
Validité de la procuration
(3) La procuration est valable pour lassemblée visée et à tout ajournement de cette assemblée. | |
Revocation of proxy
(4) A shareholder may revoke a proxy
(a) by depositing an instrument or act in writing executed or, in Quebec, signed by the shareholder or by the shareholders personal representative authorized in writing
(i) at the registered office of the corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment thereof, at which the proxy is to be used, or
(ii) with the chairman of the meeting on the day of the meeting or an adjournment thereof; or
(b) in any other manner permitted by law. |
Révocation dune procuration
(4) Lactionnaire peut révoquer la procuration :
a) en déposant un acte écrit signé de lui ou de son représentant personnel muni dune autorisation écrite :
(i) soit au siège social de la société au plus tard le dernier jour ouvrable précédant lassemblée en cause ou la date de reprise en cas dajournement,
(ii) soit entre les mains du président de lassemblée à la date de son ouverture ou de sa reprise en cas dajournement;
b) de toute autre manière autorisée par la loi. | |
Deposit of proxies
(5) The directors may specify in a notice calling a meeting of shareholders a time not more than 48 hours, excluding Saturdays and holidays, before the meeting or adjournment before which time proxies to be used at the meeting must be deposited with the corporation or its agent or mandatary.
R.S., 1985, c. C-44, s. 148; 2001, c. 14, s. 135(E); 2011, c. 21, s. 55. |
Dépôt des procurations
(5) Les administrateurs peuvent, dans lavis de convocation dune assemblée, préciser une date limite, qui ne peut être antérieure de plus de quarante-huit heures, non compris les samedis et les jours fériés, à la date douverture de lassemblée ou de sa reprise en cas dajournement, pour la remise des procurations à la société ou à son mandataire.
L.R. (1985), ch. C-44, art. 148; 2001, ch. 14, art. 135(A); 2011, ch. 21, art. 55. | |
Mandatory solicitation
149 (1) Subject to subsection (2), the management of a corporation shall, concurrently with giving notice of a meeting of shareholders, send a form of proxy in prescribed form to each shareholder who is entitled to receive notice of the meeting. |
Sollicitation obligatoire
149 (1) Sous réserve du paragraphe (2), la direction dune société doit, en donnant avis de lassemblée aux actionnaires, leur envoyer un formulaire de procuration en la forme prescrite. | |
Exception
(2) The management of the corporation is not required to send a form of proxy under subsection (1) if it
(a) is not a distributing corporation; and
(b) has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder. |
Exception
(2) La direction dune société autre quune société ayant fait appel au public comptant au plus cinquante actionnaires habiles à voter lors dune assemblée, les codétenteurs dune action étant comptés comme un seul actionnaire, nest pas tenue denvoyer le formulaire de procuration prévu au paragraphe (1). |
Current to February 11, 2020 |
121 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 149-150 |
Articles 149-150 |
Offence
(3) If the management of a corporation fails to comply, without reasonable cause, with subsection (1), the corporation is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars. |
Infraction
(3) La société dont la direction contrevient, sans motif raisonnable, au paragraphe (1), commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars. | |
Officers, etc., of corporations
(4) Where a corporation commits an offence under subsection (3), any director or officer of the corporation who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the corporation has been prosecuted or convicted.
R.S., 1985, c. C-44, s. 149; 2001, c. 14, s. 68. |
Sociétés et leurs dirigeants, etc.
(4) En cas de perpétration par une société dune infraction visée au paragraphe (3), ceux de ses administrateurs ou dirigeants qui y ont sciemment donné leur autorisation, leur permission ou leur acquiescement sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines, que la société ait été ou non poursuivie ou déclarée coupable.
L.R. (1985), ch. C-44, art. 149; 2001, ch. 14, art. 68. | |
Soliciting proxies
150 (1) A person shall not solicit proxies unless
(a) in the case of solicitation by or on behalf of the management of a corporation, a management proxy circular in prescribed form, either as an appendix to or as a separate document accompanying the notice of the meeting, or
(b) in the case of any other solicitation, a dissidents proxy circular in prescribed form stating the purposes of the solicitation
is sent to the auditor of the corporation, to each shareholder whose proxy is solicited, to each director and, if paragraph (b) applies, to the corporation. |
Sollicitation de procuration
150 (1) Les procurations ne peuvent être sollicitées quà laide de circulaires envoyées en la forme prescrite :
a) sous forme dannexe ou de document distinct de lavis de lassemblée, en cas de sollicitation effectuée par la direction ou pour son compte,
b) dans les autres cas, par tout dissident, qui doit y mentionner lobjet de cette sollicitation,
au vérificateur, à chacun des administrateurs, aux actionnaires intéressés et, en cas dapplication de lalinéa b), à la société. | |
Exception solicitation to fifteen or fewer shareholders
(1.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissidents proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder. |
Exception : sollicitation restreinte
(1.1) Malgré le paragraphe (1), il nest pas nécessaire denvoyer de circulaires pour effectuer une sollicitation, sauf si celle-ci est effectuée par la direction ou pour son compte, lorsque le nombre total des actionnaires dont les procurations sont sollicitées ne dépasse pas quinze, les codétenteurs dune action étant comptés comme un seul actionnaire. | |
Exception solicitation by public broadcast
(1.2) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissidents proxy circular if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication. |
Exemption : sollicitation par diffusion publique
(1.2) Malgré le paragraphe (1), il nest pas nécessaire denvoyer de circulaires pour effectuer une sollicitation, sauf si celle-ci est effectuée par la direction ou pour son compte, lorsque la sollicitation est, dans les circonstances prévues par règlement, transmise par diffusion publique, discours ou publication. |
Current to February 11, 2020 |
122 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 150-152 |
Articles 150-152 |
Copy to Director
(2) A person required to send a management proxy circular or dissidents proxy circular shall send concurrently a copy of it to the Director together with a statement in prescribed form, the form of proxy, any other documents for use in connection with the meeting and, in the case of a management proxy circular, a copy of the notice of meeting. |
Copie au directeur
(2) La personne tenue denvoyer une circulaire émanant de la direction ou dun dissident doit en même temps en envoyer un exemplaire au directeur, accompagné tant de la déclaration réglementaire et du formulaire de procuration que des documents utiles à lassemblée; dans le cas où elle émane de la direction, la circulaire est de plus accompagnée dune copie de lavis dassemblée. | |
Offence
(3) A person who fails to comply with subsections (1) and (2) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. |
Infraction
(3) Quiconque contrevient aux paragraphes (1) et (2) commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines. | |
Officers, etc., of bodies corporate
(4) Where a body corporate commits an offence under subsection (3), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted.
R.S., 1985, c. C-44, s. 150; 1992, c. 1, s. 54; 1994, c. 24, s. 16; 2001, c. 14, s. 69. |
Personnes morales et leurs dirigeants, etc.
(4) En cas de perpétration par une personne morale dune infraction visée au paragraphe (3), ceux de ses administrateurs ou dirigeants qui y ont sciemment donné leur autorisation, leur permission ou leur acquiescement sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines, que la personne morale ait été ou non poursuivie ou déclarée coupable.
L.R. (1985), ch. C-44, art. 150; 1992, ch. 1, art. 54; 1994, ch. 24, art. 16; 2001, ch. 14, art. 69. | |
Exemption
151 (1) On the application of an interested person, the Director may exempt the person, on any terms that the Director thinks fit, from any of the requirements of section 149 or subsection 150(1) or 153(1). The exemption may have retroactive effect.
(2) [Repealed, 2018, c. 8, s. 18]
R.S., 1985, c. C-44, s. 151; 2001, c. 14, s. 70; 2018, c. 8, s. 18. |
Dispense
151 (1) Le directeur peut, selon les modalités quil estime utiles, dispenser tout intéressé qui en fait la demande des exigences visées à larticle 149 ou aux paragraphes 150(1) ou 153(1). La dispense peut avoir un effet rétroactif.
(2) [Abrogé, 2018, ch. 8, art. 18]
L.R. (1985), ch. C-44, art. 151; 2001, ch. 14, art. 70; 2018, ch. 8, art. 18. | |
Attendance at meeting
152 (1) A person who solicits a proxy and is appointed proxyholder shall attend in person or cause an alternate proxyholder to attend the meeting in respect of which the proxy is given and comply with the directions of the shareholder who appointed him. |
Présence à lassemblée
152 (1) La personne nommée fondé de pouvoir après avoir sollicité une procuration doit assister personnellement à lassemblée visée, ou sy faire représenter par son suppléant, et se conformer aux instructions de lactionnaire qui la nommée. | |
Right of a proxyholder
(2) A proxyholder or an alternate proxyholder has the same rights as the shareholder by whom they were appointed to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting and, except where a proxyholder or an alternate proxyholder |
Droits du fondé de pouvoir
(2) Au cours dune assemblée, le fondé de pouvoir ou un suppléant a, en ce qui concerne la participation aux délibérations et le vote par voie de scrutin, les mêmes droits que lactionnaire qui la nommé; cependant, le fondé de pouvoir ou un suppléant qui a reçu des |
Current to February 11, 2020 |
123 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 152-153 |
Articles 152-153 |
has conflicting instructions from more than one shareholder, to vote at such a meeting in respect of any matter by way of any show of hands. |
instructions contradictoires de ses mandants ne peut prendre part à un vote à main levée. | |
Show of hands
(3) Despite subsections (1) and (2), if the chairperson of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to the knowledge of the chairperson will be the decision of the meeting in relation to any matter or group of matters is less than five per cent of all the votes that might be cast by shareholders personally or through proxy at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot,
(a) the chairperson may conduct the vote in respect of that matter or group of matters by a show of hands; and
(b) a proxyholder or alternate proxyholder may vote in respect of that matter or group of matters by a show of hands. |
Vote à main levée
(3) Malgré les paragraphes (1) et (2), lorsque le président dune assemblée déclare quen cas de scrutin, lensemble des voix attachées aux actions représentées par des fondés de pouvoir ayant instruction de voter contre la solution qui, à son avis, sera adoptée par lassemblée quant à une question ou un groupe de questions, sera inférieur à cinq pour cent des voix qui peuvent être exprimées par des actionnaires, présents ou représentés par des fondés de pouvoir, au cours de ce scrutin, et sauf si un actionnaire ou un fondé de pouvoir exige la tenue dun scrutin :
a) le président peut procéder à un vote à main levée sur la question ou le groupe de questions;
b) les fondés de pouvoir et les suppléants peuvent participer au vote à main levée sur la question ou le groupe de questions. | |
Offence
(4) A proxyholder or alternate proxyholder who without reasonable cause fails to comply with the directions of a shareholder under this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.
R.S., 1985, c. C-44, s. 152; 2001, c. 14, ss. 71, 135(E). |
Infraction
(4) Le fondé de pouvoir ou son suppléant qui, sans motif raisonnable, contrevient aux instructions données par lactionnaire conformément au présent article commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines.
L.R. (1985), ch. C-44, art. 152; 2001, ch. 14, art. 71 et 135(A). | |
Duty of intermediary
153 (1) Shares of a corporation that are registered in the name of an intermediary or their nominee and not beneficially owned by the intermediary must not be voted unless the intermediary, without delay after receipt of the notice of the meeting, financial statements, management proxy circular, dissidents proxy circular and any other documents other than the form of proxy sent to shareholders by or on behalf of any person for use in connection with the meeting, sends a copy of the document to the beneficial owner and, except when the intermediary has received written voting instructions from the beneficial owner, a written request for such instructions. |
Devoir de lintermédiaire
153 (1) Lintermédiaire qui nest pas le véritable propriétaire des actions inscrites à son nom ou à celui dune personne désignée par lui ne peut exercer les droits de vote dont elles sont assorties que sur envoi au véritable propriétaire, dès leur réception, dun exemplaire de lavis de lassemblée, des états financiers, des circulaires sollicitant des procurations émanant de la direction ou dun dissident et de tous documents à lexception du formulaire de procuration envoyés par toute personne ou pour son compte, aux actionnaires pour lassemblée. Il doit également envoyer une demande écrite dinstructions sur le vote, sil na pas reçu du véritable propriétaire de telles instructions par écrit. | |
Restriction on voting
(2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, |
Restrictions relatives au vote
(2) Lintermédiaire qui nest pas le véritable propriétaire des actions inscrites à son nom ou à celui dune personne désignée par lui ou le fondé de pouvoir nommé par lui ne peut exercer les droits de vote dont elles sont |
Current to February 11, 2020 |
124 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Section 153 |
Article 153 |
as the case may be, receives written voting instructions from the beneficial owner. |
assorties, sil na pas reçu du véritable propriétaire des instructions écrites relatives au vote. | |
Copies
(3) A person by or on behalf of whom a solicitation is made shall provide, at the request of an intermediary, without delay, to the intermediary at the persons expense the necessary number of copies of the documents referred to in subsection (1), other than copies of the document requesting voting instructions. |
Exemplaires
(3) La personne qui fait une sollicitation ou pour le compte de laquelle elle est faite doit fournir sans délai à ses propres frais à lintermédiaire, dès que celui-ci en fait la demande, le nombre nécessaire dexemplaires des documents visés au paragraphe (1), sauf ceux qui réclament des instructions sur le vote. | |
Instructions to intermediary
(4) An intermediary shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner. |
Instructions à lintermédiaire
(4) Les droits de vote dont sont assorties les actions visées au paragraphe (1) doivent être exercés par lintermédiaire ou le fondé de pouvoir quil nomme à cette fin selon les instructions écrites reçues du véritable propriétaire. | |
Beneficial owner as proxyholder
(5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder. |
Véritable propriétaire nommé fondé de pouvoir
(5) Sur demande du véritable propriétaire et après en avoir reçu les documents appropriés, lintermédiaire choisit comme fondé de pouvoir celui-ci ou la personne quil désigne. | |
Validity
(6) The failure of an intermediary to comply with this section does not render void any meeting of shareholders or any action taken at the meeting. |
Validité
(6) Linobservation du présent article par lintermédiaire nannule ni lassemblée ni les mesures prises lors de celle-ci. | |
Limitation
(7) Nothing in this section gives an intermediary the right to vote shares that the intermediary is otherwise prohibited from voting. |
Limitation
(7) Le présent article ne confère nullement à lintermédiaire les droits de vote qui lui sont par ailleurs refusés. | |
Offence
(8) An intermediary who knowingly fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. |
Infraction
(8) Lintermédiaire qui contrevient sciemment au présent article commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines. | |
Officers, etc., of bodies corporate
(9) If an intermediary that is a body corporate commits an offence under subsection (8), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted.
R.S., 1985, c. C-44, s. 153; 2001, c. 14, s. 72. |
Personnes morales et leurs dirigeants, etc.
(9) En cas de perpétration par un intermédiaire qui est une personne morale dune infraction visée au paragraphe (8), ceux de ses administrateurs ou dirigeants qui y ont sciemment donné leur autorisation, leur permission ou leur acquiescement sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces |
Current to February 11, 2020 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIII Proxies |
PARTIE XIII Procurations | |
Sections 153-155 |
Articles 153-155 |
peines, que la personne morale ait été ou non poursuivie ou déclarée coupable.
L.R. (1985), ch. C-44, art. 153; 2001, ch. 14, art. 72. | ||
Restraining order
154 (1) If a form of proxy, management proxy circular or dissidents proxy circular contains an untrue statement of a material fact or omits to state a material fact required therein or necessary to make a statement contained therein not misleading in the light of the circumstances in which it was made, an interested person or the Director may apply to a court and the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining the solicitation, the holding of the meeting, or any person from implementing or acting on any resolution passed at the meeting to which the form of proxy, management proxy circular or dissidents proxy circular relates;
(b) an order requiring correction of any form of proxy or proxy circular and a further solicitation; and
(c) an order adjourning the meeting. |
Ordonnance
154 (1) En cas de faux renseignements sur un fait important, ou domission dun tel fait dont la divulgation était requise ou nécessaire pour éviter que la déclaration ne soit trompeuse eu égard aux circonstances, dans un formulaire de procuration ou dans une circulaire émanant de la direction ou dun dissident, le tribunal peut, à la demande de tout intéressé ou du directeur, prendre par ordonnance toute mesure quil estime pertinente et notamment :
a) interdire la sollicitation et la tenue de lassemblée ou enjoindre à quiconque de ne donner aucune suite aux résolutions adoptées à lassemblée en cause;
b) exiger la correction des documents en cause et prévoir une nouvelle sollicitation;
c) ajourner lassemblée. | |
Notice to Director
(2) An applicant under this section shall give to the Director notice of the application and the Director is entitled to appear and to be heard in person or by counsel.
1974-75-76, c. 33, s. 148; 1978-79, c. 9, s. 1(F). |
Avis au directeur
(2) Lauteur de la demande prévue au présent article doit en aviser le directeur; celui-ci peut comparaître en personne ou par ministère davocat.
1974-75-76, ch. 33, art. 148; 1978-79, ch. 9, art. 1(F). | |
PART XIV
Financial Disclosure |
PARTIE XIV
Présentation de renseignements dordre financier | |
Annual financial statements
155 (1) The directors of a corporation shall place before the shareholders at every annual meeting
(a) prescribed comparative financial statements that conform to any prescribed requirements and relate separately to
(i) the period that began on the date the corporation came into existence and ended not more than six months before the annual meeting or, if the corporation has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, and
(ii) the immediately preceding financial year; |
États financiers annuels
155 (1) Les administrateurs doivent, à lassemblée annuelle, présenter aux actionnaires :
a) les états financiers comparatifs exigés par les règlements, établis conformément à ceux-ci et couvrant séparément :
(i) la période se terminant six mois au plus avant lassemblée et ayant commencé à la date soit de création de la société, soit, si elle a déjà fonctionné durant un exercice complet, de la fin de cet exercice,
(ii) lexercice précédent;
b) le rapport du vérificateur, sil a été établi; |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 155-157 |
Articles 155-157 |
(b) the report of the auditor, if any; and
(c) any further information respecting the financial position of the corporation and the results of its operations required by the articles, the by-laws or any unanimous shareholder agreement. |
c) tous renseignements sur la situation financière de la société et le résultat de ses activités quexigent les statuts, les règlements administratifs ou toute convention unanime des actionnaires. | |
Exception
(2) Notwithstanding paragraph (1)(a), the financial statements referred to in subparagraph (1)(a)(ii) may be omitted if the reason for the omission is set out in the financial statements, or in a note thereto, to be placed before the shareholders at an annual meeting.
R.S., 1985, c. C-44, s. 155; 2018, c. 8, s. 20. |
Exception
(2) Par dérogation à lalinéa (1)a), il nest pas nécessaire de présenter les états financiers visés au sous-alinéa (1)a)(ii) si le motif en est donné dans les états financiers, ou dans une note y annexée, à présenter aux actionnaires à lassemblée annuelle.
L.R. (1985), ch. C-44, art. 155; 2018, ch. 8, art. 20. | |
Application for exemption
156 On the application of a corporation, the Director may exempt the corporation, on any terms that the Director thinks fit, from any requirement set out in section 155 or any of sections 157 to 160, if the Director reasonably believes that the detriment that may be caused to the corporation by the requirement outweighs its benefit to the shareholders or, in the case of a distributing corporation, to the public.
R.S., 1985, c. C-44, s. 156; 2001, c. 14, s. 74; 2018, c. 8, s. 21. |
Demande de dispense
156 Le directeur peut, sur demande de la société, soustraire celle-ci, aux conditions quil estime indiquées, à toute obligation prévue à larticle 155 ou à lun des articles 157 à 160 sil a de bonnes raisons de croire que les inconvénients pour la société qui découleraient du respect de lobligation lemportent sur les avantages qui en résulteraient pour les actionnaires ou, dans le cas de la société ayant fait appel au public, sur les avantages qui en résulteraient pour le public.
L.R. (1985), ch. C-44, art. 156; 2001, ch. 14, art. 74; 2018, ch. 8, art. 21. | |
Consolidated statements
157 (1) A corporation shall keep at its registered office a copy of the financial statements of each of its subsidiary bodies corporate and of each body corporate the accounts of which are consolidated in the financial statements of the corporation. |
États financiers consolidés
157 (1) La société doit conserver à son siège social un exemplaire des états financiers de chacune de ses filiales et de chaque personne morale dont les comptes sont consolidés dans ses propres états financiers. | |
Examination
(2) Shareholders of a corporation and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the corporation and may make extracts free of charge. |
Examen
(2) Les actionnaires ainsi que leurs représentants personnels peuvent, sur demande, examiner gratuitement les états financiers visés au paragraphe (1) et en tirer copie pendant les heures normales douverture des bureaux. | |
Barring examination
(3) A corporation may, within fifteen days of a request to examine under subsection (2), apply to a court for an order barring the right of any person to so examine, and the court may, if it is satisfied that such examination would be detrimental to the corporation or a subsidiary body corporate, bar such right and make any further order it thinks fit. |
Interdiction
(3) Le tribunal saisi dune requête présentée par la société dans les quinze jours dune demande dexamen faite en vertu du paragraphe (2) peut rendre toute ordonnance quil estime pertinente et, notamment, interdire lexamen, sil est convaincu quil serait préjudiciable à la société ou à une filiale. |
Current to February 11, 2020 |
127 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 157-160 |
Articles 157-160 |
Notice to Director
(4) A corporation shall give the Director and the person asking to examine under subsection (2) notice of an application under subsection (3), and the Director and such person may appear and be heard in person or by counsel.
R.S., 1985, c. C-44, s. 157; 2001, c. 14, s. 75. |
Avis au directeur
(4) La société doit donner avis de toute requête présentée en vertu du paragraphe (3) au directeur et à toute personne qui demande lexamen prévu au paragraphe (2); ceux-ci peuvent comparaître en personne ou par ministère davocat.
L.R. (1985), ch. C-44, art. 157; 2001, ch. 14, art. 75. | |
Approval of financial statements
158 (1) The directors of a corporation shall approve the financial statements referred to in section 155 and the approval shall be evidenced by the manual signature of one or more directors or a facsimile of the signatures reproduced in the statements. |
Approbation des états financiers
158 (1) Les administrateurs doivent approuver les états financiers visés à larticle 155; lapprobation est attestée par la signature ou sa reproduction mécanique, notamment sous forme dimprimé dau moins lun dentre eux. | |
Condition precedent
(2) A corporation shall not issue, publish or circulate copies of the financial statements referred to in section 155 unless the financial statements are
(a) approved and signed in accordance with subsection (1); and
(b) accompanied by the report of the auditor of the corporation, if any.
R.S., 1985, c. C-44, s. 158; 2001, c. 14, s. 76. |
Condition préalable
(2) La société ne peut publier ou diffuser les états financiers visés à larticle 155 que lorsque les conditions suivantes sont réunies :
a) ils ont été approuvés et signés conformément au paragraphe (1);
b) ils sont accompagnés du rapport du vérificateur, sil a été établi.
L.R. (1985), ch. C-44, art. 158; 2001, ch. 14, art. 76. | |
Copies to shareholders
159 (1) A corporation shall, not less than twenty-one days before each annual meeting of shareholders or before the signing of a resolution under paragraph 142(1)(b) in lieu of the annual meeting, send a copy of the documents referred to in section 155 to each shareholder, except to a shareholder who has informed the corporation in writing that he or she does not want a copy of those documents. |
Copies aux actionnaires
159 (1) La société doit, vingt et un jours au moins avant chaque assemblée annuelle ou avant la signature de la résolution qui en tient lieu en vertu de lalinéa 142(1)b), envoyer un exemplaire des documents visés à larticle 155 à chaque actionnaire, sauf à ceux qui lont informée par écrit de leur désir de ne pas les recevoir. | |
Offence
(2) A corporation that, without reasonable cause, fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.
R.S., 1985, c. C-44, s. 159; 2001, c. 14, s. 135(E). |
Infraction
(2) La société qui, sans motif raisonnable, contrevient au paragraphe (1) commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars.
L.R. (1985), ch. C-44, art. 159; 2001, ch. 14, art. 135(A). | |
Copies to Director
160 (1) A distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall send a copy of the documents referred to in section 155 to the Director
(a) not less than twenty-one days before each annual meeting of shareholders, or without delay after a resolution referred to in paragraph 142(1)(b) is signed; and |
Copies au directeur
160 (1) La société ayant fait appel au public dont des valeurs mobilières en circulation sont détenues par plusieurs personnes doit envoyer au directeur copie des documents visés à larticle 155 :
a) vingt et un jours au moins avant chaque assemblée annuelle ou sans délai après la signature de la résolution qui en tient lieu en vertu de lalinéa 142(1)b); |
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Dernière modification le 1 janvier 2020 |
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PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 160-161 |
Articles 160-161 |
(b) in any event within fifteen months after the last preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, but no later than six months after the end of the corporations preceding financial year. |
b) en tout état de cause, dans les quinze mois suivant lassemblée annuelle précédente ou la date à laquelle aurait dû être signée la résolution en tenant lieu, mais au plus tard dans les six mois suivant la fin de chaque exercice. | |
Subsidiary corporation exemption
(2) A subsidiary corporation is not required to comply with this section if
(a) the financial statements of its holding corporation are in consolidated or combined form and include the accounts of the subsidiary; and
(b) the consolidated or combined financial statements of the holding corporation are included in the documents sent to the Director by the holding corporation in compliance with this section. |
Dispense
(2) Les filiales ne sont pas tenues de se conformer au présent article si :
a) dune part, leurs états financiers sont inclus dans ceux de la société mère présentés sous forme consolidée ou cumulée;
b) dautre part, les états financiers de la société mère, présentés sous forme consolidée ou cumulée, figurent dans les documents envoyés au directeur en conformité avec le présent article. | |
Offence
(3) A corporation that fails to comply with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars.
R.S., 1985, c. C-44, s. 160; 1992, c. 1, s. 55; 1994, c. 24, s. 17; 2001, c. 14, s. 77. |
Infraction
(3) Toute société qui contrevient au présent article commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars.
L.R. (1985), ch. C-44, art. 160; 1992, ch. 1, art. 55; 1994, ch. 24, art. 17; 2001, ch. 14, art. 77. | |
Qualification of auditor
161 (1) Subject to subsection (5), a person is disqualified from being an auditor of a corporation if the person is not independent of the corporation, any of its affiliates, or the directors or officers of any such corporation or its affiliates. |
Qualités requises pour être vérificateur
161 (1) Sous réserve du paragraphe (5), pour être vérificateur, il faut être indépendant de la société, des personnes morales de son groupe ou de leurs administrateurs ou dirigeants. | |
Independence
(2) For the purposes of this section,
(a) independence is a question of fact; and
(b) a person is deemed not to be independent if they or their business partner
(i) is a business partner, a director, an officer or an employee of the corporation or any of its affiliates, or a business partner of any director, officer or employee of any such corporation or any of its affiliates,
(ii) beneficially owns or controls, directly or indirectly, a material interest in the securities of the corporation or any of its affiliates, or
(iii) has been a receiver, receiver-manager, sequestrator, liquidator or trustee in bankruptcy of the corporation or any of its affiliates within two years |
Indépendance
(2) Pour lapplication du présent article :
a) lindépendance est une question de fait;
b) est réputée ne pas être indépendante la personne qui, ou dont lassocié :
(i) ou bien est associé, administrateur, dirigeant ou employé de la société, dune personne morale de son groupe ou de leurs administrateurs, dirigeants ou employés,
(ii) ou bien est le véritable propriétaire ou détient, directement ou indirectement, le contrôle dune partie importante des valeurs mobilières de la société ou de lune des personnes morales de son groupe,
(iii) ou bien a été séquestre, séquestre-gérant, liquidateur ou syndic de faillite de la société ou dune personne morale de son groupe dans les deux |
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129 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 161-162 |
Articles 161-162 |
of the persons proposed appointment as auditor of the corporation. |
ans précédant la proposition de sa nomination au poste de vérificateur. | |
Business partners
(2.1) For the purposes of subsection (2), a persons business partner includes a shareholder of that person. |
Associé
(2.1) Pour lapplication du paragraphe (2), est assimilé à un associé dune personne lactionnaire de celle-ci. | |
Duty to resign
(3) An auditor who becomes disqualified under this section shall, subject to subsection (5), resign forthwith after becoming aware of the disqualification. |
Obligation de démissionner
(3) Le vérificateur doit, sous réserve du paragraphe (5), se démettre dès quà sa connaissance, il ne possède plus les qualités requises par le présent article. | |
Disqualification order
(4) An interested person may apply to a court for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant. |
Destitution judiciaire
(4) Tout intéressé peut demander au tribunal de rendre une ordonnance déclarant la destitution du vérificateur aux termes du présent article et la vacance de son poste. | |
Exemption order
(5) An interested person may apply to a court for an order exempting an auditor from disqualification under this section and the court may, if it is satisfied that an exemption would not unfairly prejudice the shareholders, make an exemption order on such terms as it thinks fit, which order may have retrospective effect.
R.S., 1985, c. C-44, s. 161; 2001, c. 14, ss. 78, 135(E); 2011, c. 21, s. 56(E); 2018, c. 8, s. 23(E). |
Dispense
(5) Le tribunal, sil est convaincu de ne pas causer un préjudice injustifié aux actionnaires, peut, à la demande de tout intéressé, dispenser, même rétroactivement, le vérificateur de lapplication du présent article, aux conditions quil estime indiquées.
L.R. (1985), ch. C-44, art. 161; 2001, ch. 14, art. 78 et 135(A); 2011, ch. 21, art. 56(A); 2018, ch. 8, art. 23(A). | |
Appointment of auditor
162 (1) Subject to section 163, shareholders of a corporation shall, by ordinary resolution, at the first annual meeting of shareholders and at each succeeding annual meeting, appoint an auditor to hold office until the close of the next annual meeting. |
Nomination du vérificateur
162 (1) Sous réserve de larticle 163, les actionnaires doivent, par voie de résolution ordinaire, à la première assemblée annuelle et à chaque assemblée annuelle subséquente, nommer un vérificateur dont le mandat expirera à la clôture de lassemblée annuelle suivante. | |
Eligibility
(2) An auditor appointed under section 104 is eligible for appointment under subsection (1). |
Éligibilité
(2) Le vérificateur nommé en vertu de larticle 104 peut également lêtre conformément au paragraphe (1). | |
Incumbent auditor
(3) Notwithstanding subsection (1), if an auditor is not appointed at a meeting of shareholders, the incumbent auditor continues in office until a successor is appointed. |
Vérificateur en fonctions
(3) Nonobstant le paragraphe (1), à défaut de nomination du vérificateur lors dune assemblée, le vérificateur en fonctions poursuit son mandat jusquà la nomination de son successeur. | |
Remuneration
(4) The remuneration of an auditor may be fixed by ordinary resolution of the shareholders or, if not so fixed, may be fixed by the directors.
1974-75-76, c. 33, s. 156; 1978-79, c. 9, ss. 1(F), 48. |
Rémunération
(4) La rémunération du vérificateur est fixée par voie de résolution ordinaire des actionnaires ou, à défaut, par les administrateurs.
1974-75-76, ch. 33, art. 156; 1978-79, ch. 9, art. 1(F) et 48. |
Current to February 11, 2020 |
130 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 163-166 |
Articles 163-166 |
Dispensing with auditor
163 (1) The shareholders of a corporation that is not a distributing corporation may resolve not to appoint an auditor. |
Dispense
163 (1) Les actionnaires dune société, autre quune société ayant fait appel au public, peuvent décider, par voie de résolution, de ne pas nommer un vérificateur. | |
Limitation
(2) A resolution under subsection (1) is valid only until the next succeeding annual meeting of shareholders. |
Durée de validité
(2) La résolution mentionnée au paragraphe (1) nest valide que jusquà lassemblée annuelle suivante. | |
Unanimous consent
(3) A resolution under subsection (1) is not valid unless it is consented to by all the shareholders, including shareholders not otherwise entitled to vote. |
Consentement unanime
(3) La résolution mentionnée au paragraphe (1) nest valide que si elle recueille le consentement unanime des actionnaires, y compris ceux qui ne sont pas par ailleurs fondés à voter. | |
(4) [Repealed, 1994, c. 24, s. 18]
R.S., 1985, c. C-44, s. 163; 1992, c. 1, s. 56; 1994, c. 24, s. 18; 2001, c. 14, s. 79. |
(4) [Abrogé, 1994, ch. 24, art. 18]
L.R. (1985), ch. C-44, art. 163; 1992, ch. 1, art. 56; 1994, ch. 24, art. 18; 2001, ch. 14, art. 79. | |
Ceasing to hold office
164 (1) An auditor of a corporation ceases to hold office when the auditor
(a) dies or resigns; or
(b) is removed pursuant to section 165. |
Fin du mandat
164 (1) Le mandat du vérificateur prend fin avec :
a) son décès ou sa démission;
b) sa révocation conformément à larticle 165. | |
Effective date of resignation
(2) A resignation of an auditor becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later.
R.S., 1985, c. C-44, s. 164; 2001, c. 14, s. 135(E). |
Date deffet de la démission
(2) La démission du vérificateur prend effet à la date de son envoi par écrit à la société ou, si elle est postérieure, à celle que précise cette démission.
L.R. (1985), ch. C-44, art. 164; 2001, ch. 14, art. 135(A). | |
Removal of auditor
165 (1) The shareholders of a corporation may by ordinary resolution at a special meeting remove from office the auditor other than an auditor appointed by a court under section 167. |
Révocation
165 (1) Les actionnaires peuvent, par résolution ordinaire adoptée lors dune assemblée extraordinaire, révoquer tout vérificateur qui na pas été nommé par le tribunal en vertu de larticle 167. | |
Vacancy
(2) A vacancy created by the removal of an auditor may be filled at the meeting at which the auditor is removed or, if not so filled, may be filled under section 166.
1974-75-76, c. 33, s. 159; 1978-79, c. 9, s. 1(F). |
Vacance
(2) La vacance créée par la révocation dun vérificateur peut être comblée lors de lassemblée où celle-ci a eu lieu ou, à défaut, en vertu de larticle 166.
1974-75-76, ch. 33, art. 159; 1978-79, ch. 9, art. 1(F). | |
Filling vacancy
166 (1) Subject to subsection (3), the directors shall forthwith fill a vacancy in the office of auditor. |
Manière de combler une vacance
166 (1) Sous réserve du paragraphe (3), les administrateurs doivent immédiatement combler toute vacance du poste de vérificateur. | |
Calling meeting
(2) If there is not a quorum of directors, the directors then in office shall, within twenty-one days after a vacancy in the office of auditor occurs, call a special meeting of |
Convocation dune assemblée
(2) En cas dabsence de quorum au conseil dadministration, les administrateurs en fonctions doivent, dans les vingt et un jours de la vacance du poste |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 166-168 |
Articles 166-168 |
shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors, the meeting may be called by any shareholder. |
de vérificateur, convoquer une assemblée extraordinaire en vue de combler cette vacance; à défaut de cette convocation, ou en labsence dadministrateurs, tout actionnaire peut le faire. | |
Shareholders filling vacancy
(3) The articles of a corporation may provide that a vacancy in the office of auditor shall only be filled by vote of the shareholders. |
Vacance comblée par les actionnaires
(3) Les statuts de la société peuvent prévoir que la vacance ne peut être comblée que par un vote des actionnaires. | |
Unexpired term
(4) An auditor appointed to fill a vacancy holds office for the unexpired term of the auditors predecessor.
R.S., 1985, c. C-44, s. 166; 2001, c. 14, s. 135(E). |
Mandat non expiré
(4) Le vérificateur nommé afin de combler une vacance poursuit jusquà son expiration le mandat de son prédécesseur.
L.R. (1985), ch. C-44, art. 166; 2001, ch. 14, art. 135(A). | |
Court appointed auditor
167 (1) If a corporation does not have an auditor, the court may, on the application of a shareholder or the Director, appoint and fix the remuneration of an auditor who holds office until an auditor is appointed by the shareholders. |
Nomination judiciaire
167 (1) Le tribunal peut, à la demande dun actionnaire ou du directeur, nommer un vérificateur à la société qui nen a pas et fixer sa rémunération; le mandat de ce vérificateur se termine à la nomination de son successeur par les actionnaires. | |
Exception
(2) Subsection (1) does not apply if the shareholders have resolved under section 163 not to appoint an auditor.
1974-75-76, c. 33, s. 161; 1978-79, c. 9, s. 1(F). |
Exception
(2) Le paragraphe (1) ne sapplique pas dans le cas prévu à larticle 163.
1974-75-76, ch. 33, art. 161; 1978-79, ch. 9, art. 1(F). | |
Right to attend meeting
168 (1) The auditor of a corporation is entitled to receive notice of every meeting of shareholders and, at the expense of the corporation, to attend and be heard on matters relating to the auditors duties. |
Droit dassister à lassemblée
168 (1) Le vérificateur est fondé à recevoir avis de toute assemblée, à y assister aux frais de la société et à y être entendu sur toute question relevant de ses fonctions. | |
Duty to attend
(2) If a director or shareholder of a corporation, whether or not the shareholder is entitled to vote at the meeting, gives written notice not less than ten days before a meeting of shareholders to the auditor or a former auditor of the corporation, the auditor or former auditor shall attend the meeting at the expense of the corporation and answer questions relating to their duties as auditor. |
Obligation
(2) Le vérificateur ou ses prédécesseurs, à qui lun des administrateurs ou un actionnaire habile ou non à voter donne avis écrit, au moins dix jours à lavance, de la tenue dune assemblée, doit assister à cette assemblée aux frais de la société et répondre à toute question relevant de ses fonctions. | |
Notice to corporation
(3) A director or shareholder who sends a notice referred to in subsection (2) shall send concurrently a copy of the notice to the corporation. |
Avis de la société
(3) Ladministrateur ou lactionnaire qui envoie lavis visé au paragraphe (2) doit en envoyer simultanément copie à la société. | |
Offence
(4) An auditor or former auditor of a corporation who fails without reasonable cause to comply with subsection (2) is guilty of an offence and liable on summary |
Infraction
(4) Le vérificateur ou lun de ses prédécesseurs qui, sans motif raisonnable, contrevient au paragraphe (2) commet une infraction et encourt, sur déclaration de culpabilité |
Current to February 11, 2020 |
132 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Section 168 |
Article 168 |
conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. |
par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines. | |
Statement of auditor
(5) An auditor is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing any proposed action or resolution when the auditor
(a) resigns;
(b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the auditor from office;
(c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because the auditors term of office has expired or is about to expire; or
(d) receives a notice or otherwise learns of a meeting of shareholders at which a resolution referred to in section 163 is to be proposed. |
Déclaration du vérificateur
(5) Le vérificateur qui, selon le cas :
a) démissionne;
b) est informé, notamment par voie davis, de la convocation dune assemblée en vue de le révoquer;
c) est informé, notamment par voie davis, de la tenue dune réunion du conseil dadministration ou dune assemblée en vue de pourvoir le poste de vérificateur par suite de sa démission, de sa révocation, de lexpiration effective ou prochaine de son mandat;
d) est informé, notamment par voie davis, de la tenue dune assemblée où une résolution doit être proposée conformément à larticle 163,
est fondé à donner par écrit à la société les motifs de sa démission ou de son opposition aux mesures ou résolutions envisagées. | |
Other statements
(5.1) In the case of a proposed replacement of an auditor, whether through removal or at the end of the auditors term, the following rules apply with respect to other statements:
(a) the corporation shall make a statement on the reasons for the proposed replacement; and
(b) the proposed replacement auditor may make a statement in which he or she comments on the reasons referred to in paragraph (a). |
Autres déclarations
(5.1) Dans le cas où la société se propose de remplacer le vérificateur, pour cause de révocation ou dexpiration de son mandat, elle doit soumettre une déclaration motivée et le nouveau vérificateur a le droit de soumettre une déclaration commentant ces motifs. | |
Circulating statement
(6) The corporation shall send a copy of the statements referred to in subsections (5) and (5.1) without delay to every shareholder entitled to receive notice of a meeting referred to in subsection (1) and to the Director, unless the statement is included in or attached to a management proxy circular required by section 150. |
Diffusion des motifs
(6) La société doit sans délai envoyer, à tout actionnaire qui doit être avisé des assemblées mentionnées au paragraphe (1) et au directeur, copie des déclarations visées aux paragraphes (5) et (5.1), sauf si elles sont incorporées ou jointes à la circulaire de sollicitation de procurations de la direction exigée à larticle 150. | |
Replacing auditor
(7) No person shall accept appointment or consent to be appointed as auditor of a corporation to replace an auditor who has resigned, been removed or whose term of office has expired or is about to expire until the person has |
Remplaçant
(7) Nul ne peut accepter de remplacer le vérificateur qui a démissionné ou a été révoqué ou dont le mandat est expiré ou est sur le point dexpirer, avant davoir obtenu, sur demande, quil donne par écrit les circonstances et les motifs justifiant, selon lui, son remplacement. |
Current to February 11, 2020 |
133 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 168-170 |
Articles 168-170 |
requested and received from that auditor a written statement of the circumstances and the reasons, in that auditors opinion, for their replacement. |
| |
Exception
(8) Notwithstanding subsection (7), a person otherwise qualified may accept appointment or consent to be appointed as auditor of a corporation if, within fifteen days after making the request referred to in that subsection, the person does not receive a reply. |
Exception
(8) Par dérogation au paragraphe (7), toute personne par ailleurs compétente peut accepter dêtre nommée vérificateur si, dans les quinze jours suivant la demande visée à ce paragraphe, elle ne reçoit pas de réponse. | |
Effect of non-compliance
(9) Unless subsection (8) applies, an appointment as auditor of a corporation of a person who has not complied with subsection (7) is void.
R.S., 1985, c. C-44, s. 168; 2001, c. 14, ss. 80, 135(E); 2018, c. 8, s. 23.1(F). |
Effet de linobservation
(9) Sauf le cas prévu au paragraphe (8), linobservation du paragraphe (7) entraîne la nullité de la nomination.
L.R. (1985), ch. C-44, art. 168; 2001, ch. 14, art. 80 et 135(A); 2018, ch. 8, art. 23.1(F). | |
Examination
169 (1) An auditor of a corporation shall make the examination that is in their opinion necessary to enable them to report in the prescribed manner on the financial statements required by this Act to be placed before the shareholders, except such financial statements or part thereof that relate to the period referred to in subparagraph 155(1)(a)(ii). |
Examen
169 (1) Le vérificateur doit procéder à lexamen quil estime nécessaire pour faire rapport, de la manière prescrite, sur les états financiers que la présente loi ordonne de présenter aux actionnaires, à lexception des états financiers se rapportant à la période visée au sous-alinéa 155(1)a)(ii). | |
Reliance on other auditor
(2) Notwithstanding section 170, an auditor of a corporation may reasonably rely on the report of an auditor of a body corporate or an unincorporated business the accounts of which are included in whole or in part in the financial statements of the corporation. |
Foi au rapport dun vérificateur
(2) Nonobstant larticle 170, le vérificateur dune société peut, dune manière raisonnable, se fonder sur le rapport du vérificateur dune personne morale ou dune entreprise commerciale dépourvue de personnalité morale, dont les comptes sont entièrement ou partiellement inclus dans les états financiers de la société. | |
Reasonableness
(3) For the purpose of subsection (2), reasonableness is a question of fact. |
Question de fait
(3) Pour lapplication du paragraphe (2), le bien-fondé de la décision du vérificateur est une question de fait. | |
Application
(4) Subsection (2) applies whether or not the financial statements of the holding corporation reported on by the auditor are in consolidated form.
R.S., 1985, c. C-44, s. 169; 2001, c. 14, s. 135(E). |
Application
(4) Le paragraphe (2) sapplique, que les états financiers de la société mère soient consolidés ou non.
L.R. (1985), ch. C-44, art. 169; 2001, ch. 14, art. 135(A). | |
Right to information
170 (1) On the demand of an auditor of a corporation, the present or former directors, officers, employees, agents or mandataries of the corporation shall provide any
(a) information and explanations, and |
Droit à linformation
170 (1) Les administrateurs, dirigeants, employés ou mandataires de la société, ou leurs prédécesseurs, doivent, à la demande du vérificateur :
a) le renseigner; |
Current to February 11, 2020 |
134 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 170-171 |
Articles 170-171 |
(b) access to records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries
that are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169 and that the directors, officers, employees, agents or mandataries are reasonably able to provide. |
b) lui donner accès à tous les registres, documents, livres, comptes et pièces justificatives de la société ou de ses filiales,
dans la mesure où il lestime nécessaire pour agir conformément à larticle 169 et où il est raisonnable pour ces personnes daccéder à cette demande. | |
Idem
(2) On the demand of the auditor of a corporation, the directors of the corporation shall
(a) obtain from the present or former directors, officers, employees and agents or mandataries of any subsidiary of the corporation the information and explanations that the present or former directors, officers, employees and agents or mandataries are reasonably able to provide and that are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169; and
(b) furnish the auditor with the information and explanations so obtained. |
Idem
(2) À la demande du vérificateur, les administrateurs dune société doivent :
a) obtenir des administrateurs, dirigeants, employés et mandataires de ses filiales, ou de leurs prédécesseurs, les renseignements et éclaircissements que ces personnes peuvent raisonnablement fournir et que le vérificateur estime nécessaires aux fins de lexamen et du rapport exigés par larticle 169;
b) fournir au vérificateur les renseignements et éclaircissements ainsi obtenus. | |
No civil liability
(3) A person who in good faith makes an oral or written communication under subsection (1) or (2) is not liable in any civil proceeding arising from having made the communication.
R.S., 1985, c. C-44, s. 170; 2001, c. 14, ss. 81, 135(E); 2011, c. 21, s. 57(E). |
Non-responsabilité
(3) Nul nencourt de responsabilité civile pour avoir fait, de bonne foi, une déclaration orale ou écrite au titre des paragraphes (1) ou (2).
L.R. (1985), ch. C-44, art. 170; 2001, ch. 14, art. 81 et 135(A); 2011, ch. 21, art. 57(A). | |
Audit committee
171 (1) Subject to subsection (2), a corporation described in subsection 102(2) shall, and any other corporation may, have an audit committee composed of not less than three directors of the corporation, a majority of whom are not officers or employees of the corporation or any of its affiliates. |
Comité de vérification
171 (1) Sous réserve du paragraphe (2), les sociétés peuvent, et celles visées au paragraphe 102(2) doivent, avoir un comité de vérification composé dau moins trois administrateurs et dont la majorité nest pas constituée de dirigeants ou demployés de la société ou des personnes morales de son groupe. | |
Exemption
(2) The Director may, on the application of a corporation, authorize the corporation to dispense with an audit committee, and the Director may, if satisfied that the shareholders will not be prejudiced, permit the corporation to dispense with an audit committee on any reasonable conditions that the Director thinks fit. |
Dispense
(2) Le directeur, sil est convaincu de ne causer aucun préjudice aux actionnaires, peut, à la demande de la société, la libérer, aux conditions quil estime raisonnables, de lobligation davoir un comité de vérification. | |
Duty of committee
(3) An audit committee shall review the financial statements of the corporation before such financial statements are approved under section 158. |
Fonctions du comité
(3) Le comité de vérification doit revoir les états financiers de la société avant leur approbation conformément à larticle 158. |
Current to February 11, 2020 |
135 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 171-172 |
Articles 171-172 |
Auditors attendance
(4) The auditor of a corporation is entitled to receive notice of every meeting of the audit committee and, at the expense of the corporation, to attend and be heard thereat; and, if so requested by a member of the audit committee, shall attend every meeting of the committee held during the term of office of the auditor. |
Présence du vérificateur
(4) Le vérificateur est fondé à recevoir avis des réunions du comité de vérification, à y assister aux frais de la société et à y être entendu; à la demande de tout membre du comité, il doit, durant son mandat, assister à toute réunion de ce comité. | |
Calling meeting
(5) The auditor of a corporation or a member of the audit committee may call a meeting of the committee. |
Convocation de la réunion
(5) Le comité de vérification peut être convoqué par lun de ses membres ou par le vérificateur. | |
Notice of errors
(6) A director or an officer of a corporation shall forthwith notify the audit committee and the auditor of any error or mis-statement of which the director or officer becomes aware in a financial statement that the auditor or a former auditor has reported on. |
Avis des erreurs
(6) Tout administrateur ou dirigeant doit immédiatement aviser le comité de vérification et le vérificateur des erreurs ou renseignements inexacts dont il prend connaissance dans les états financiers ayant fait lobjet dun rapport de ce dernier ou de lun de ses prédécesseurs. | |
Error in financial statements
(7) An auditor or former auditor of a corporation who is notified or becomes aware of an error or mis-statement in a financial statement on which they have reported, if in their opinion the error or mis-statement is material, shall inform each director accordingly. |
Erreur dans les états financiers
(7) Le vérificateur ou celui de ses prédécesseurs qui prend connaissance dune erreur ou dun renseignement inexact, à son avis important, dans des états financiers sur lequel il a fait rapport, doit en informer chaque administrateur. | |
Duty of directors
(8) When under subsection (7) the auditor or former auditor informs the directors of an error or mis-statement in a financial statement, the directors shall
(a) prepare and issue revised financial statements; or
(b) otherwise inform the shareholders and, if the corporation is one that is required to comply with section 160, it shall inform the Director of the error or misstatement in the same manner as it informs the shareholders. |
Obligation des administrateurs
(8) Les administrateurs avisés, conformément au paragraphe (7), de lexistence derreurs ou de renseignements inexacts dans les états financiers doivent :
a) soit dresser et publier des états financiers rectifiés;
b) soit en informer par tous moyens les actionnaires et, si la société est tenue de se conformer à larticle 160, en informer de la même manière le directeur. | |
Offence
(9) Every director or officer of a corporation who knowingly fails to comply with subsection (6) or (8) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.
R.S., 1985, c. C-44, s. 171; 2001, c. 14, ss. 82, 135(E). |
Infraction
(9) Ladministrateur ou dirigeant dune société qui, sciemment, contrevient aux paragraphes (6) ou (8) commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines.
L.R. (1985), ch. C-44, art. 171; 2001, ch. 14, art. 82 et 135(A). | |
Qualified privilege (defamation)
172 Any oral or written statement or report made under this Act by the auditor or former auditor of a corporation has qualified privilege.
1974-75-76, c. 33, s. 166; 1978-79, c. 9, s. 1(F). |
Immunité (diffamation)
172 Les vérificateurs ou leurs prédécesseurs jouissent dune immunité relative en ce qui concerne les |
Current to February 11, 2020 |
136 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIV Financial Disclosure |
PARTIE XIV Présentation de renseignements dordre financier | |
Sections 172-173 |
Articles 172-173 |
déclarations orales ou écrites et les rapports quils font en vertu de la présente loi.
1974-75-76, ch. 33, art. 166; 1978-79, ch. 9, art. 1(F). | ||
PART XIV.1
Disclosure Relating to Diversity |
PARTIE XIV.1
Présentation de renseignements relatifs à la diversité | |
Diversity in corporations
172.1 (1) The directors of a prescribed corporation shall place before the shareholders, at every annual meeting, the prescribed information respecting diversity among the directors and among the members of senior management as defined by regulation. |
Diversité dans les sociétés
172.1 (1) À chaque assemblée annuelle, les administrateurs dune société visée par règlement présentent aux actionnaires les renseignements réglementaires concernant la diversité au sein des administrateurs et au sein des membres de la haute direction au sens des règlements. | |
Information to shareholders and Director
(2) The corporation shall provide the information referred to in subsection (1) to each shareholder, except to a shareholder who has informed the corporation in writing that they do not want to receive that information, by sending the information along with the notice referred to in subsection 135(1) or by making the information available along with a proxy circular referred to in subsection 150(1). |
Envoi au directeur et aux actionnaires
(2) La société fournit les renseignements visés au paragraphe (1) à chaque actionnaire, sauf à ceux qui lont informée par écrit quils ne souhaitent pas les recevoir, en les envoyant avec lavis visé au paragraphe 135(1) ou en les mettant à sa disposition avec toute circulaire visée au paragraphe 150(1). | |
Information to Director
(3) The corporation shall concurrently send the information referred to in subsection (1) to the Director.
2018, c. 8, s. 24. |
Envoi au directeur
(3) La société envoie simultanément au directeur les renseignements visés au paragraphe (1).
2018, ch. 8, art. 24. | |
PART XV
Fundamental Changes |
PARTIE XV
Modifications de structure | |
Amendment of articles
173 (1) Subject to sections 176 and 177, the articles of a corporation may by special resolution be amended to
(a) change its name;
(b) change the province in which its registered office is situated;
(c) add, change or remove any restriction on the business or businesses that the corporation may carry on;
(d) change any maximum number of shares that the corporation is authorized to issue;
(e) create new classes of shares; |
Modification des statuts
173 (1) Sous réserve des articles 176 et 177, les statuts de la société peuvent, par résolution spéciale, être modifiés afin :
a) den changer la dénomination sociale;
b) de transférer le siège social dans une autre province;
c) dajouter, de modifier ou de supprimer toute restriction quant à ses activités commerciales;
d) de modifier le nombre maximal dactions quelle est autorisée à émettre; |
Current to February 11, 2020 |
137 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 173 |
Article 173 |
(f) reduce or increase its stated capital, if its stated capital is set out in the articles;
(g) change the designation of all or any of its shares, and add, change or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any of its shares, whether issued or unissued;
(h) change the shares of any class or series, whether issued or unissued, into a different number of shares of the same class or series or into the same or a different number of shares of other classes or series;
(i) divide a class of shares, whether issued or unissued, into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof;
(j) authorize the directors to divide any class of unissued shares into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof;
(k) authorize the directors to change the rights, privileges, restrictions and conditions attached to unissued shares of any series;
(l) revoke, diminish or enlarge any authority conferred under paragraphs (j) and (k);
(m) increase or decrease the number of directors or the minimum or maximum number of directors, subject to sections 107 and 112;
(n) add, change or remove restrictions on the issue, transfer or ownership of shares; or
(o) add, change or remove any other provision that is permitted by this Act to be set out in the articles. |
e) de créer de nouvelles catégories dactions;
f) de réduire ou daugmenter son capital déclaré, si celui-ci figure dans les statuts;
g) de modifier la désignation de tout ou partie de ses actions, et dajouter, de modifier ou de supprimer tous droits, privilèges, restrictions et conditions, y compris le droit à des dividendes accumulés, concernant tout ou partie de ses actions, émises ou non;
h) de modifier le nombre dactions, émises ou non, dune catégorie ou dune série ou de les changer de catégorie ou de série;
i) de diviser en séries une catégorie dactions, émises ou non, en indiquant le nombre dactions par série, ainsi que les droits, privilèges, restrictions et conditions dont elles sont assorties;
j) dautoriser les administrateurs à diviser en séries une catégorie dactions non émises, en indiquant le nombre dactions par série, ainsi que les droits, privilèges, restrictions et conditions dont elles sont assorties;
k) dautoriser les administrateurs à modifier les droits, privilèges, restrictions et conditions dont sont assorties les actions non émises dune série;
l) de révoquer ou de modifier les autorisations conférées en vertu des alinéas j) et k);
m) daugmenter ou de diminuer le nombre fixe, minimal ou maximal dadministrateurs, sous réserve des articles 107 et 112;
n) dapporter, de modifier ou de supprimer des restrictions quant à lémission, au transfert ou au droit de propriété des actions;
o) dajouter, de modifier ou de supprimer toute autre disposition que la présente loi autorise à y insérer. | |
Termination
(2) The directors of a corporation may, if authorized by the shareholders in the special resolution effecting an amendment under this section, revoke the resolution before it is acted on without further approval of the shareholders. |
Annulation
(2) Les administrateurs peuvent, si les actionnaires les y autorisent par la résolution spéciale prévue au présent article, annuler la résolution avant quil ny soit donné suite. | |
Amendment of number name
(3) Notwithstanding subsection (1), where a corporation has a designating number as a name, the directors may amend its articles to change that name to a verbal name.
R.S., 1985, c. C-44, s. 173; 1994, c. 24, s. 19; 2001, c. 14, ss. 83, 134(F). |
Modification de la dénomination exprimée en chiffres
(3) Nonobstant le paragraphe (1), les administrateurs dune société ayant une dénomination sociale numérique |
Current to February 11, 2020 |
138 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 173-174 |
Articles 173-174 |
peuvent en modifier les statuts pour adopter une dénomination exprimée en lettres.
L.R. (1985), ch. C-44, art. 173; 1994, ch. 24, art. 19; 2001, ch. 14, art. 83 et 134(F). | ||
Constraints on shares
174 (1) Subject to sections 176 and 177, a distributing corporation, any of the issued shares of which remain outstanding and are held by more than one person, may by special resolution amend its articles in accordance with the regulations to constrain
(a) the issue or transfer of shares of any class or series to persons who are not resident Canadians;
(b) the issue or transfer of shares of any class or series to enable the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province
(i) to obtain a licence to carry on any business,
(ii) to become a publisher of a Canadian newspaper or periodical, or
(iii) to acquire shares of a financial intermediary as defined in the regulations;
(c) the issue, transfer or ownership of shares of any class or series in order to assist the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control;
(d) the issue, transfer or ownership of shares of any class or series in order to assist the corporation to comply with any prescribed law.
(e) the issue, transfer or ownership of shares of any class or series to enable the corporation to be a registered labour-sponsored venture capital corporation under Part X.3 of the Income Tax Act. |
Restrictions concernant les actions
174 (1) Sous réserve des articles 176 et 177, la société ayant fait appel au public dont des actions en circulation sont détenues par plusieurs personnes, peut, en modifiant ses statuts par résolution spéciale, imposer, conformément aux règlements, des restrictions :
a) quant à lémission ou au transfert des actions de nimporte quelle catégorie ou série au profit de non-résidents canadiens;
b) quant à lémission ou au transfert des actions de nimporte quelle catégorie ou série en vue de rendre la société ou les personnes morales faisant partie de son groupe ou ayant des liens avec elle, mieux à même de remplir les conditions prévues par une loi fédérale ou provinciale prescrite :
(i) pour obtenir un permis en vue dexercer toute activité commerciale,
(ii) pour publier un journal ou un périodique canadien,
(iii) pour acquérir les actions dun intermédiaire financier au sens de ces règlements;
c) quant à lémission, au transfert ou au droit de propriété des actions de nimporte quelle catégorie ou série en vue de rendre la société ou les personnes morales faisant partie de son groupe ou ayant des liens avec elle, mieux à même de remplir les conditions de participation ou de contrôle canadiens auxquelles est subordonné, sous le régime des lois fédérales ou provinciales prescrites, le droit de recevoir certains avantages, notamment des licences, permis, subventions et paiements;
d) quant à lémission, au transfert ou à la propriété des actions de nimporte quelle catégorie ou série en vue de rendre la société mieux à même de se conformer aux lois prescrites.
e) quant à lémission, au transfert ou à la propriété des actions de nimporte quelle catégorie ou série en vue de permettre à la société dêtre une société agréée à capital de risque de travailleurs en vertu de la partie X.3 de la Loi de limpôt sur le revenu. |
Current to February 11, 2020 |
139 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 174 |
Article 174 |
Exception in respect of paragraph (1)(c)
(2) Paragraph (1)(c) does not permit a constraint on the issue, transfer or ownership of shares of any class or series of which any shares are outstanding unless
(a) in the case of a constraint in respect of a class, the shares of the class, or
(b) in the case of a constraint in respect of a series, the shares of the series
are already subject to a constraint permitted under that paragraph. |
Exception à lal. (1)c)
(2) Lalinéa (1)c) nautorise les restrictions à lémission, au transfert ou au droit de propriété dactions en circulation dune catégorie ou série que si font déjà lobjet de restrictions autorisées à cet alinéa :
a) soit les actions dune catégorie dans le cas où ces restrictions sappliquent à celle-ci;
b) soit les actions dune série dans le cas où ces restrictions sappliquent à celle-ci. | |
Limitation on ownership of shares
(3) A corporation may, pursuant to paragraph (1)(c), limit the number of shares of that corporation that may be owned, or prohibit the ownership of shares, by any person whose ownership would adversely affect the ability of the corporation or any of its affiliates or associates to attain or maintain a level of Canadian ownership or control specified in its articles that equals or exceeds a specified level referred to in paragraph (1)(c). |
Limitation du nombre dactions
(3) La société peut, en vertu de lalinéa (1)c), limiter le nombre dactions qui peuvent appartenir à une personne ou interdire à celle-ci le droit de propriété dactions si le droit de propriété compromet la possibilité pour la société ou les personnes morales faisant partie de son groupe ou ayant des liens avec elle, de remplir les conditions de participation ou de contrôle canadiens qui sont précisées à ses statuts et qui sont aussi exigeantes que celles qui sont visées à lalinéa (1)c). | |
Change or removal of constraint
(4) A corporation referred to in subsection (1) may by special resolution amend its articles to change or remove any constraint on the issue, transfer or ownership of its shares. |
Suppression ou modification des restrictions
(4) La société visée au paragraphe (1) peut, en modifiant ses statuts par résolution spéciale, modifier ou supprimer les restrictions applicables à lémission, au transfert ou au droit de propriété de ses actions. | |
Termination
(5) The directors of a corporation may, if authorized by the shareholders in the special resolution effecting an amendment under subsection (1) or (4), revoke the resolution before it is acted on without further approval of the shareholders. |
Annulation
(5) Les administrateurs peuvent, si les actionnaires les y autorisent dans la résolution spéciale prévue aux paragraphes (1) ou (4), annuler la résolution avant quil y soit donné suite. | |
Regulations
(6) Subject to subsections 261(2) and (3), the Governor in Council may make regulations with respect to a corporation that constrains the issue, transfer or ownership of its shares prescribing
(a) the disclosure required of the constraints in documents issued or published by the corporation;
(b) the duties and powers of the directors to refuse to issue or register transfers of shares in accordance with the articles of the corporation;
(c) the limitations on voting rights of any shares held contrary to the articles of the corporation; |
Règlements
(6) Sous réserve des paragraphes 261(2) et (3), le gouverneur en conseil peut, au cas où lémission, le transfert ou le droit de propriété des actions dune société fait lobjet de restrictions, prescrire :
a) les modalités relatives à la divulgation obligatoire de ces restrictions dans les documents présentés ou publiés par la société;
b) lobligation et le pouvoir des administrateurs de refuser lémission dactions ou linscription de transferts en conformité avec les statuts de la société;
c) les limites du droit de vote dont sont assorties les actions détenues en contravention des statuts de la société; |
Current to February 11, 2020 |
140 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 174-176 |
Articles 174-176 |
(d) the powers of the directors to require disclosure of beneficial ownership of shares of the corporation and the right of the corporation and its directors, employees and agents or mandataries to rely on that disclosure and the effects of that reliance; and
(e) the rights of any person owning shares of the corporation at the time of an amendment to its articles constraining share issues or transfers. |
d) le pouvoir des administrateurs dexiger la divulgation relative à la propriété effective des actions, ainsi que le droit de la société, de ses administrateurs, employés ou mandataires dy ajouter foi et les conséquences qui en découlent;
e) les droits des propriétaires dactions de la société au moment de la modification des statuts aux fins de restreindre lémission ou le transfert des actions. | |
Validity of acts
(7) An issue or a transfer of a share or an act of a corporation is valid notwithstanding any failure to comply with this section or the regulations.
R.S., 1985, c. C-44, s. 174; 1991, c. 45, s. 554, c. 47, s. 722; 1994, c. 21, s. 125; 2001, c. 14, ss. 84, 134(F); 2011, c. 21, s. 58(E). |
Validité des actes
(7) Lémission ou le transfert dactions ainsi que les actes dune société sont valides nonobstant linobservation du présent article ou des règlements.
L.R. (1985), ch. C-44, art. 174; 1991, ch. 45, art. 554, ch. 47, art. 722; 1994, ch. 21, art. 125; 2001, ch. 14, art. 84 et 134(F); 2011, ch. 21, art. 58(A). | |
Proposal to amend
175 (1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 137, make a proposal to amend the articles. |
Proposition de modification
175 (1) Sous réserve du paragraphe (2), tout administrateur ou tout actionnaire ayant le droit de voter à une assemblée annuelle peut, conformément à larticle 137, présenter une proposition de modification des statuts. | |
Notice of amendment
(2) Notice of a meeting of shareholders at which a proposal to amend the articles is to be considered shall set out the proposed amendment and, where applicable, shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amendment.
R.S., 1985, c. C-44, s. 175; 2001, c. 14, s. 135(E). |
Avis de modification
(2) La proposition de modification doit figurer dans lavis de convocation de lassemblée où elle sera examinée; elle précise, sil y a lieu, que les actionnaires dissidents ont le droit de se faire verser la juste valeur de leurs actions conformément à larticle 190; cependant, le défaut de cette précision ne rend pas nulle la modification.
L.R. (1985), ch. C-44, art. 175; 2001, ch. 14, art. 135(A). | |
Class vote
176 (1) The holders of shares of a class or, subject to subsection (4), of a series are, unless the articles otherwise provide in the case of an amendment referred to in paragraphs (a), (b) and (e), entitled to vote separately as a class or series on a proposal to amend the articles to
(a) increase or decrease any maximum number of authorized shares of such class, or increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the shares of such class;
(b) effect an exchange, reclassification or cancellation of all or part of the shares of such class;
(c) add, change or remove the rights, privileges, restrictions or conditions attached to the shares of such class and, without limiting the generality of the foregoing, |
Vote par catégorie
176 (1) Sauf disposition contraire des statuts relative aux modifications visées aux alinéas a), b) et e), les détenteurs dactions dune catégorie ou, sous réserve du paragraphe (4), dune série, sont fondés à voter séparément sur les propositions de modification des statuts tendant à :
a) changer le nombre maximal autorisé dactions de ladite catégorie ou à augmenter le nombre maximal dactions autorisées dune autre catégorie conférant des droits ou des privilèges égaux ou supérieurs;
b) faire échanger, reclasser ou annuler tout ou partie des actions de cette catégorie;
c) étendre, modifier ou supprimer les droits, privilèges, restrictions ou conditions dont sont assorties les actions de ladite catégorie, notamment : |
Current to February 11, 2020 |
141 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 176 |
Article 176 |
(i) remove or change prejudicially rights to accrued dividends or rights to cumulative dividends,
(ii) add, remove or change prejudicially redemption rights,
(iii) reduce or remove a dividend preference or a liquidation preference, or
(iv) add, remove or change prejudicially conversion privileges, options, voting, transfer or pre-emptive rights, or rights to acquire securities of a corporation, or sinking fund provisions;
(d) increase the rights or privileges of any class of shares having rights or privileges equal or superior to the shares of such class;
(e) create a new class of shares equal or superior to the shares of such class;
(f) make any class of shares having rights or privileges inferior to the shares of such class equal or superior to the shares of such class;
(g) effect an exchange or create a right of exchange of all or part of the shares of another class into the shares of such class; or
(h) constrain the issue, transfer or ownership of the shares of such class or change or remove such constraint. |
(i) en supprimant ou modifiant, de manière préjudiciable, le droit aux dividendes accumulés ou cumulatifs,
(ii) en étendant, supprimant ou modifiant, de manière préjudiciable, les droits de rachat,
(iii) en réduisant ou supprimant une préférence en matière de dividende ou de liquidation,
(iv) en étendant, supprimant ou modifiant, de manière préjudiciable, les privilèges de conversion, options, droits de vote, de transfert, de préemption ou dacquisition de valeurs mobilières ou des dispositions en matière des fonds damortissement;
d) accroître les droits ou privilèges des actions dune autre catégorie, conférant des droits ou des privilèges égaux ou supérieurs à ceux de ladite catégorie;
e) créer une nouvelle catégorie dactions égales ou supérieures à celles de ladite catégorie;
f) rendre égales ou supérieures aux actions de ladite catégorie, les actions dune catégorie conférant des droits ou des privilèges inférieurs;
g) faire échanger tout ou partie des actions dune autre catégorie contre celles de ladite catégorie ou créer un droit à cette fin;
h) soit apporter des restrictions à lémission, au transfert ou au droit de propriété des actions de ladite catégorie soit modifier ou supprimer ces restrictions. | |
Exception
(2) Subsection (1) does not apply in respect of a proposal to amend the articles to add a right or privilege for a holder to convert shares of a class or series into shares of another class or series that is subject to a constraint permitted under paragraph 174(1)(c) but is otherwise equal to the class or series first mentioned. |
Exception
(2) Le paragraphe (1) ne sapplique pas aux propositions de modification de statuts tendant à accorder au détenteur le droit ou le privilège supplémentaire de convertir les actions dune catégorie ou série en actions dune autre catégorie ou série qui, sauf quelle est assujettie à des restrictions autorisées à lalinéa 174(1)c), est égale à la première catégorie ou série. | |
Deeming provision
(3) For the purpose of paragraph (1)(e), a new class of shares, the issue, transfer or ownership of which is to be constrained by an amendment to the articles pursuant to paragraph 174(1)(c), that is otherwise equal to an existing class of shares shall be deemed not to be equal or superior to the existing class of shares. |
Présomption
(3) En cas de modification des statuts dans le cadre de lalinéa 174(1)c) en vue de la création dune nouvelle catégorie dactions dont lémission, le transfert ou le droit de propriété font lobjet de restrictions et qui sont par ailleurs égales aux actions dune ancienne catégorie, les actions de la nouvelle catégorie sont réputées, pour lapplication de lalinéa (1)e), être ni égales ni supérieures à celles de lancienne catégorie. |
Current to February 11, 2020 |
142 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 176-179 |
Articles 176-179 |
Limitation
(4) The holders of a series of shares of a class are entitled to vote separately as a series under subsection (1) only if such series is affected by an amendment in a manner different from other shares of the same class. |
Limitation
(4) Les détenteurs dactions dune série ne sont fondés à voter séparément, comme prévu au paragraphe (1), que sur les modifications visant la série et non lensemble de la catégorie. | |
Right to vote
(5) Subsection (1) applies whether or not shares of a class or series otherwise carry the right to vote. |
Droit de vote
(5) Le paragraphe (1) sapplique même si les actions dune catégorie ou dune série ne confèrent aucun droit de vote par ailleurs. | |
Separate resolutions
(6) A proposed amendment to the articles referred to in subsection (1) is adopted when the holders of the shares of each class or series entitled to vote separately thereon as a class or series have approved such amendment by a special resolution.
R.S., 1985, c. C-44, s. 176; 2001, c. 14, s. 134(F). |
Résolutions distinctes
(6) Ladoption de toute proposition visée au paragraphe (1) est subordonnée à son approbation par voie de résolution spéciale votée séparément par les actionnaires de chaque catégorie ou série intéressée.
L.R. (1985), ch. C-44, art. 176; 2001, ch. 14, art. 134(F). | |
Delivery of articles
177 (1) Subject to any revocation under subsection 173(2) or 174(5), after an amendment has been adopted under section 173, 174 or 176 articles of amendment in the form that the Director fixes shall be sent to the Director. |
Remise des statuts
177 (1) Sous réserve de lannulation conformément aux paragraphes 173(2) ou 174(5), après une modification adoptée en vertu des articles 173, 174 ou 176, les clauses modificatrices des statuts sont envoyées au directeur en la forme établie par lui. | |
Reduction of stated capital
(2) If an amendment effects or requires a reduction of stated capital, subsections 38(3) and (4) apply.
R.S., 1985, c. C-44, s. 177; 2001, c. 14, s. 85. |
Réduction du capital déclaré
(2) En cas de modification donnant lieu à une réduction du capital déclaré, les paragraphes 38(3) et (4) sappliquent.
L.R. (1985), ch. C-44, art. 177; 2001, ch. 14, art. 85. | |
Certificate of amendment
178 On receipt of articles of amendment, the Director shall issue a certificate of amendment in accordance with section 262.
1974-75-76, c. 33, s. 172; 1978-79, c. 9, s. 1(F). |
Certificat de modification
178 Sur réception des clauses modificatrices, le directeur délivre un certificat de modification en conformité avec larticle 262.
1974-75-76, ch. 33, art. 172; 1978-79, ch. 9, art. 1(F). | |
Effect of certificate
179 (1) An amendment becomes effective on the date shown in the certificate of amendment and the articles are amended accordingly. |
Effet du certificat
179 (1) La modification prend effet à la date figurant sur le certificat de modification et les statuts sont modifiés en conséquence. | |
Rights preserved
(2) No amendment to the articles affects an existing cause of action or claim or liability to prosecution in favour of or against the corporation or its directors or officers, or any civil, criminal or administrative action or proceeding to which a corporation or its directors or officers is a party.
1974-75-76, c. 33, s. 173; 1978-79, c. 9, s. 1(F). |
Maintien des droits
(2) Nulle modification ne porte atteinte aux causes dactions déjà nées pouvant engager la société, ses administrateurs ou ses dirigeants, ni aux poursuites civiles, pénales ou administratives auxquelles ils sont parties.
1974-75-76, ch. 33, art. 173; 1978-79, ch. 9, art. 1(F). |
Current to February 11, 2020 |
143 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 180-182 |
Articles 180-182 |
Restated articles
180 (1) The directors may at any time, and shall when reasonably so directed by the Director, restate the articles of incorporation. |
Mise à jour des statuts
180 (1) Les administrateurs peuvent, et doivent si le directeur a de bonnes raisons de le leur ordonner, mettre à jour les statuts constitutifs. | |
Delivery of articles
(2) Restated articles of incorporation in the form that the Director fixes shall be sent to the Director. |
Envoi des statuts
(2) Les statuts mis à jour sont envoyés au directeur en la forme établie par lui. | |
Restated certificate
(3) On receipt of restated articles of incorporation, the Director shall issue a restated certificate of incorporation in accordance with section 262. |
Certificat
(3) Sur réception des statuts mis à jour, le directeur délivre un certificat de constitution à jour en conformité avec larticle 262. | |
Effect of certificate
(4) Restated articles of incorporation are effective on the date shown in the restated certificate of incorporation and supersede the original articles of incorporation and all amendments thereto.
R.S., 1985, c. C-44, s. 180; 2001, c. 14, s. 86. |
Effet du certificat
(4) Les statuts mis à jour prennent effet à la date figurant sur le certificat.
L.R. (1985), ch. C-44, art. 180; 2001, ch. 14, art. 86. | |
Amalgamation
181 Two or more corporations, including holding and subsidiary corporations, may amalgamate and continue as one corporation.
1974-75-76, c. 33, s. 175; 1978-79, c. 9, s. 1(F). |
Fusion
181 Plusieurs sociétés, y compris une société mère et ses filiales, peuvent fusionner en une seule et même société.
1974-75-76, ch. 33, art. 175; 1978-79, ch. 9, art. 1(F). | |
Amalgamation agreement
182 (1) Each corporation proposing to amalgamate shall enter into an agreement setting out the terms and means of effecting the amalgamation and, in particular, setting out
(a) the provisions that are required to be included in articles of incorporation under section 6;
(b) the name and address of each proposed director of the amalgamated corporation;
(c) the manner in which the shares of each amalgamating corporation are to be converted into shares or other securities of the amalgamated corporation;
(d) if any shares of an amalgamating corporation are not to be converted into securities of the amalgamated corporation, the amount of money or securities of any body corporate that the holders of such shares are to receive in addition to or instead of securities of the amalgamated corporation;
(e) the manner of payment of money instead of the issue of fractional shares of the amalgamated corporation or of any other body corporate the securities of which are to be received in the amalgamation; |
Convention de fusion
182 (1) Les sociétés qui se proposent de fusionner doivent conclure une convention qui énonce les modalités de la fusion et notamment :
a) les dispositions dont larticle 6 exige linsertion dans les statuts constitutifs;
b) les nom et adresse des futurs administrateurs de la société issue de la fusion;
c) les modalités déchange des actions de chaque société contre les actions ou autres valeurs mobilières de la société issue de la fusion;
d) au cas où des actions de lune de ces sociétés ne doivent pas être échangées contre des valeurs mobilières de la société issue de la fusion, la somme en numéraire ou les valeurs mobilières de toute autre personne morale que les détenteurs de ces actions doivent recevoir en plus ou à la place des valeurs mobilières de la société issue de la fusion;
e) le mode du paiement en numéraire remplaçant lémission de fractions dactions de la société issue de la fusion ou de toute autre personne morale dont les |
Current to February 11, 2020 |
144 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 182-183 |
Articles 182-183 |
(f) whether the by-laws of the amalgamated corporation are to be those of one of the amalgamating corporations and, if not, a copy of the proposed by-laws; and
(g) details of any arrangements necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated corporation. |
valeurs mobilières doivent être données en échange à loccasion de la fusion;
f) les règlements administratifs envisagés pour la société issue de la fusion qui peuvent être ceux de lune des sociétés fusionnantes;
g) les détails des dispositions nécessaires pour parfaire la fusion et pour assurer la gestion et lexploitation de la société issue de la fusion. | |
Cancellation
(2) If shares of one of the amalgamating corporations are held by or on behalf of another of the amalgamating corporations, the amalgamation agreement shall provide for the cancellation of such shares when the amalgamation becomes effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of such shares into shares of the amalgamated corporation.
1974-75-76, c. 33, s. 176; 1978-79, c. 9, s. 1(F). |
Annulation
(2) La convention de fusion doit prévoir, au moment de la fusion, lannulation, sans remboursement du capital quelles représentent, des actions de lune des sociétés fusionnantes, détenues par une autre de ces sociétés ou pour son compte, mais ne peut prévoir léchange de ces actions contre celles de la société issue de la fusion.
1974-75-76, ch. 33, art. 176; 1978-79, ch. 9, art. 1(F). | |
Shareholder approval
183 (1) The directors of each amalgamating corporation shall submit the amalgamation agreement for approval to a meeting of the holders of shares of the amalgamating corporation of which they are directors and, subject to subsection (4), to the holders of each class or series of such shares. |
Approbation des actionnaires
183 (1) Les administrateurs de chacune des sociétés fusionnantes doivent respectivement soumettre la convention de fusion, pour approbation, à lassemblée des actionnaires et, sous réserve du paragraphe (4), aux actionnaires de chaque catégorie ou de chaque série. | |
Notice of meeting
(2) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder of each amalgamating corporation, and shall
(a) include or be accompanied by a copy or summary of the amalgamation agreement; and
(b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amalgamation. |
Avis de lassemblée
(2) Doit être envoyé, conformément à larticle 135, aux actionnaires de chaque société fusionnante un avis de lassemblée :
a) assorti dun exemplaire ou dun résumé de la convention de fusion;
b) précisant le droit des actionnaires dissidents de se faire verser la juste valeur de leurs actions conformément à larticle 190, le défaut de cette mention ne rendant pas nulle la fusion. | |
Right to vote
(3) Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation agreement whether or not it otherwise carries the right to vote. |
Validité de la fusion
(3) Chaque action des sociétés fusionnantes, assortie ou non du droit de vote, comporte un droit de vote quant à la convention de fusion. | |
Class vote
(4) The holders of shares of a class or series of shares of each amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation agreement if the amalgamation agreement contains a provision that, if contained in a proposed amendment to |
Vote par catégorie
(4) Les détenteurs dactions dune catégorie ou dune série de chaque société fusionnante sont habiles à voter séparément au sujet de la convention de fusion si celle-ci contient une clause qui, dans une proposition de |
Current to February 11, 2020 |
145 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 183-184 |
Articles 183-184 |
the articles, would entitle such holders to vote as a class or series under section 176. |
modification des statuts, leur aurait conféré ce droit en vertu de larticle 176. | |
Shareholder approval
(5) Subject to subsection (4), an amalgamation agreement is adopted when the shareholders of each amalgamating corporation have approved of the amalgamation by special resolutions. |
Approbation des actionnaires
(5) Sous réserve du paragraphe (4), ladoption de la convention de fusion intervient lors de son approbation par résolution spéciale des actionnaires de chaque société fusionnante. | |
Termination
(6) An amalgamation agreement may provide that at any time before the issue of a certificate of amalgamation the agreement may be terminated by the directors of an amalgamating corporation, notwithstanding approval of the agreement by the shareholders of all or any of the amalgamating corporations.
R.S., 1985, c. C-44, s. 183; 2001, c. 14, ss. 87, 135(E). |
Résiliation
(6) Les administrateurs de lune des sociétés fusionnantes peuvent résilier la convention de fusion, si elle prévoit une disposition à cet effet, avant la délivrance du certificat de fusion, malgré son approbation par les actionnaires de toutes ou de certaines sociétés fusionnantes.
L.R. (1985), ch. C-44, art. 183; 2001, ch. 14, art. 87 et 135(A). | |
Vertical short-form amalgamation
184 (1) A holding corporation and one or more of its subsidiary corporations may amalgamate and continue as one corporation without complying with sections 182 and 183 if
(a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation;
(a.1) all of the issued shares of each amalgamating subsidiary corporation are held by one or more of the other amalgamating corporations; and
(b) the resolutions provide that
(i) the shares of each amalgamating subsidiary corporation shall be cancelled without any repayment of capital in respect thereof,
(ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating holding corporation, and
(iii) no securities shall be issued by the amalgamated corporation in connection with the amalgamation and the stated capital of the amalgamated corporation shall be the same as the stated capital of the amalgamating holding corporation. |
Fusion verticale simplifiée
184 (1) La société mère et les sociétés qui sont ses filiales peuvent fusionner en une seule et même société sans se conformer aux articles 182 et 183 lorsque les conditions suivantes sont réunies :
a) leurs administrateurs respectifs approuvent la fusion par voie de résolution;
a.1) toutes les actions émises de chacune des filiales sont détenues par une ou plusieurs des sociétés fusionnantes;
b) ces résolutions prévoient à la fois que :
(i) les actions des filiales seront annulées sans remboursement de capital,
(ii) sous réserve des dispositions réglementaires, les statuts de fusion seront les mêmes que les statuts de la société mère,
(iii) la société issue de la fusion némettra aucune valeur mobilière à cette occasion et son capital déclaré sera égal à celui de la société mère. | |
Horizontal short-form amalgamation
(2) Two or more wholly-owned subsidiary corporations of the same holding body corporate may amalgamate and continue as one corporation without complying with sections 182 and 183 if
(a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and |
Fusion horizontale simplifiée
(2) Plusieurs filiales dont est entièrement propriétaire la même personne morale peuvent fusionner en une seule et même société sans se conformer aux articles 182 et 183 lorsque les conditions suivantes sont réunies :
a) leurs administrateurs respectifs approuvent la fusion par voie de résolution; |
Current to February 11, 2020 |
146 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 184-185 |
Articles 184-185 |
(b) the resolutions provide that
(i) the shares of all but one of the amalgamating subsidiary corporations shall be cancelled without any repayment of capital in respect thereof,
(ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating subsidiary corporation whose shares are not cancelled, and
(iii) the stated capital of the amalgamating subsidiary corporations whose shares are cancelled shall be added to the stated capital of the amalgamating subsidiary corporation whose shares are not cancelled.
R.S., 1985, c. C-44, s. 184; 1994, c. 24, s. 20; 2001, c. 14, s. 88. |
b) ces résolutions prévoient à la fois que :
(i) les actions de toutes les filiales, sauf celles de lune dentre elles, seront annulées sans remboursement de capital,
(ii) sous réserve des dispositions réglementaires, les statuts de fusion seront les mêmes que les statuts de la filiale dont les actions ne sont pas annulées,
(iii) le capital déclaré de toutes les filiales fusionnées sera ajouté à celui de la société dont les actions ne sont pas annulées.
L.R. (1985), ch. C-44, art. 184; 1994, ch. 24, art. 20; 2001, ch. 14, art. 88. | |
Sending of articles
185 (1) Subject to subsection 183(6), after an amalgamation has been adopted under section 183 or approved under section 184, articles of amalgamation in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106. |
Remise des statuts
185 (1) Sous réserve du paragraphe 183(6), les statuts de la société issue de la fusion, en la forme établie par le directeur, doivent, après lapprobation de la fusion en vertu des articles 183 ou 184, être envoyés au directeur avec tous les documents exigés aux articles 19 et 106. | |
Attached declarations
(2) The articles of amalgamation shall have attached thereto a statutory declaration of a director or an officer of each amalgamating corporation that establishes to the satisfaction of the Director that
(a) there are reasonable grounds for believing that
(i) each amalgamating corporation is and the amalgamated corporation will be able to pay its liabilities as they become due, and
(ii) the realizable value of the amalgamated corporations assets will not be less than the aggregate of its liabilities and stated capital of all classes; and
(b) there are reasonable grounds for believing that
(i) no creditor will be prejudiced by the amalgamation, or
(ii) adequate notice has been given to all known creditors of the amalgamating corporations and no creditor objects to the amalgamation otherwise than on grounds that are frivolous or vexatious. |
Déclarations annexées
(2) Les statuts de la société issue de la fusion doivent comporter en annexe une déclaration solennelle de lun des administrateurs ou dirigeants de chaque société établissant, à la satisfaction du directeur, lexistence de motifs raisonnables de croire à la fois :
a) que :
(i) dune part, chaque société fusionnante peut et la société issue de la fusion pourra acquitter son passif à échéance,
(ii) dautre part, la valeur de réalisation de lactif de la société issue de la fusion ne sera pas inférieure au total de son passif et de son capital déclaré;
b) que :
(i) ou bien la fusion ne portera préjudice à aucun créancier,
(ii) ou bien les créanciers connus des sociétés fusionnantes, ayant reçu un avis adéquat, ne sopposent pas à la fusion, si ce nest pour des motifs futiles ou vexatoires. | |
Adequate notice
(3) For the purposes of subsection (2), adequate notice is given if |
Avis adéquat
(3) Pour lapplication du paragraphe (2), pour être adéquat lavis doit à la fois : |
Current to February 11, 2020 |
147 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 185-186 |
Articles 185-186 |
(a) a notice in writing is sent to each known creditor having a claim against the corporation that exceeds one thousand dollars;
(b) a notice is published once in a newspaper published or distributed in the place where the corporation has its registered office and reasonable notice thereof is given in each province where the corporation carries on business; and
(c) each notice states that the corporation intends to amalgamate with one or more specified corporations in accordance with this Act and that a creditor of the corporation may object to the amalgamation within thirty days from the date of the notice. |
a) être écrit et envoyé à chaque créancier connu dont la créance est supérieure à mille dollars;
b) être inséré une fois dans un journal publié ou diffusé au lieu du siège social et recevoir une publicité suffisante dans chaque province où la société exerce ses activités commerciales;
c) indiquer lintention de la société de fusionner, en conformité avec la présente loi, avec les sociétés quil mentionne et le droit des créanciers de cette société de sopposer à la fusion dans les trente jours de la date de lavis. | |
Certificate of amalgamation
(4) On receipt of articles of amalgamation, the Director shall issue a certificate of amalgamation in accordance with section 262.
R.S., 1985, c. C-44, s. 185; 2001, c. 14, s. 89. |
Certificat de fusion
(4) Sur réception des statuts de fusion, le directeur délivre un certificat de fusion en conformité avec larticle 262.
L.R. (1985), ch. C-44, art. 185; 2001, ch. 14, art. 89. | |
Effect of certificate
186 On the date shown in a certificate of amalgamation
(a) the amalgamation of the amalgamating corporations and their continuance as one corporation become effective;
(b) the property of each amalgamating corporation continues to be the property of the amalgamated corporation;
(c) the amalgamated corporation continues to be liable for the obligations of each amalgamating corporation;
(d) an existing cause of action, claim or liability to prosecution is unaffected;
(e) a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may be continued to be prosecuted by or against the amalgamated corporation;
(f) a conviction against, or ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against the amalgamated corporation; and
(g) the articles of amalgamation are deemed to be the articles of incorporation of the amalgamated corporation and the certificate of amalgamation is deemed to be the certificate of incorporation of the amalgamated corporation.
1974-75-76, c. 33, s. 180; 1978-79, c. 9, s. 1(F). |
Effet du certificat
186 À la date figurant sur le certificat de fusion :
a) la fusion des sociétés en une seule et même société prend effet;
b) les biens de chaque société appartiennent à la société issue de la fusion;
c) la société issue de la fusion est responsable des obligations de chaque société;
d) aucune atteinte nest portée aux causes dactions déjà nées;
e) la société issue de la fusion remplace toute société fusionnante dans les poursuites civiles, pénales ou administratives engagées par ou contre celle-ci;
f) toute décision, judiciaire ou quasi-judiciaire, rendue en faveur dune société fusionnante ou contre elle est exécutoire à légard de la société issue de la fusion;
g) les statuts de fusion et le certificat de fusion sont réputés être les statuts constitutifs et le certificat de constitution de la société issue de la fusion.
1974-75-76, ch. 33, art. 180; 1978-79, ch. 9, art. 1(F). |
Current to February 11, 2020 |
148 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 186.1-187 |
Articles 186.1-187 |
Amalgamation under other federal Acts
186.1 (1) Subject to subsection (2), a corporation may not amalgamate with one or more bodies corporate pursuant to the Bank Act, the Canada Cooperatives Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act unless the corporation is first authorized to do so by the shareholders in accordance with section 183. |
Fusion : société et autres personnes morales
186.1 (1) Sous réserve du paragraphe (2), une société ne peut fusionner avec une ou plusieurs autres personnes morales en vertu de la Loi sur les banques, de la Loi canadienne sur les coopératives, de la Loi sur les associations coopératives de crédit, de la Loi sur les sociétés dassurances ou de la Loi sur les sociétés de fiducie et de prêt que si elle y est préalablement autorisée par ses actionnaires en conformité avec larticle 183. | |
Short-form amalgamations
(2) A corporation may not amalgamate with one or more bodies corporate pursuant to the provisions of one of the Acts referred to in subsection (1) respecting short-form amalgamations unless the corporation is first authorized to do so by the directors in accordance with section 184. |
Fusion simplifiée
(2) Une société ne peut fusionner avec une ou plusieurs personnes morales en vertu dune loi mentionnée au paragraphe (1) selon la procédure simplifiée prévue à cette loi que si elle y est préalablement autorisée par ses administrateurs en conformité avec larticle 184. | |
Discontinuance
(3) On receipt of a notice satisfactory to the Director that a corporation has amalgamated pursuant to one of the Acts referred to in subsection (1), the Director shall file the notice and issue a certificate of discontinuance in accordance with section 262. |
Changement de régime
(3) Le directeur enregistre, dès réception, tout avis attestant, à sa satisfaction, que la société a fusionné en vertu dune loi mentionnée au paragraphe (1) et délivre un certificat de changement de régime en conformité avec larticle 262. | |
Notice deemed to be articles
(4) For the purposes of section 262, a notice referred to in subsection (3) is deemed to be articles that are in the form that the Director fixes. |
Assimilation
(4) Pour lapplication de larticle 262, lavis prévu au paragraphe (3) est réputé être des statuts en la forme établie par le directeur. | |
Act ceases to apply
(5) This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance. |
Cessation deffet
(5) La présente loi cesse de sappliquer à la société à la date figurant sur le certificat de changement de régime. | |
Non-application
(6) For greater certainty, section 185 does not apply to a corporation that amalgamates pursuant to one of the Acts referred to in subsection (1).
1994, c. 24, s. 21; 1998, c. 1, s. 380; 2001, c. 14, s. 90. |
Non-application
(6) Il demeure entendu que larticle 185 ne sapplique pas à la société qui fusionne en vertu dune loi mentionnée au paragraphe (1).
1994, ch. 24, art. 21; 1998, ch. 1, art. 380; 2001, ch. 14, art. 90. | |
Continuance (import)
187 (1) A body corporate incorporated otherwise than by or under an Act of Parliament may, if so authorized by the laws of the jurisdiction where it is incorporated, apply to the Director for a certificate of continuance. |
Prorogation (importation)
187 (1) La personne morale constituée autrement quen vertu dune loi fédérale peut, si la loi sous le régime de laquelle elle est constituée le permet, demander au directeur de lui délivrer un certificat de prorogation. | |
Amendments in articles of continuance
(2) A body corporate that applies for continuance under subsection (1) may, without so stating in its articles of continuance, effect by those articles any amendment to its Act of incorporation, articles, letters patent or memorandum or articles of association if the amendment is an |
Modifications effectuées par les clauses de prorogation
(2) La personne morale qui demande sa prorogation conformément au paragraphe (1) peut, par ses clauses de prorogation et sans autre précision, modifier son acte constitutif, ses statuts, ses lettres patentes ou son mémoire de conventions, pourvu quil sagisse de |
Current to February 11, 2020 |
149 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 187 |
Article 187 |
amendment a corporation incorporated under this Act may make to its articles. |
modifications quune société constituée en vertu de la présente loi peut apporter à ses statuts. | |
Articles of continuance
(3) Articles of continuance in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106. |
Clauses
(3) Les clauses de prorogation doivent être envoyées au directeur, en la forme établie par lui, avec les documents exigés aux articles 19 et 106. | |
Certificate of continuance
(4) On receipt of articles of continuance, the Director shall issue a certificate of continuance in accordance with section 262. |
Certificat
(4) Sur réception des clauses de prorogation, le directeur doit délivrer un certificat de prorogation en conformité avec larticle 262. | |
Effect of certificate
(5) On the date shown in the certificate of continuance
(a) the body corporate becomes a corporation to which this Act applies as if it had been incorporated under this Act;
(b) the articles of continuance are deemed to be the articles of incorporation of the continued corporation; and
(c) the certificate of continuance is deemed to be the certificate of incorporation of the continued corporation. |
Effet du certificat
(5) À la date figurant sur le certificat de prorogation :
a) la présente loi sapplique à la personne morale comme si elle avait été constituée en vertu de celle-ci;
b) les clauses de prorogation sont réputées être les statuts constitutifs de la société prorogée;
c) le certificat de prorogation est réputé constituer le certificat de constitution de la société prorogée. | |
Copy of certificate
(6) The Director shall forthwith send a copy of the certificate of continuance to the appropriate official or public body in the jurisdiction in which continuance under this Act was authorized. |
Exemplaire du certificat
(6) Le directeur doit immédiatement envoyer un exemplaire du certificat de prorogation au fonctionnaire ou à ladministration compétents du ressort où la prorogation sous le régime de la présente loi a été autorisée. | |
Rights preserved
(7) When a body corporate is continued as a corporation under this Act,
(a) the property of the body corporate continues to be the property of the corporation;
(b) the corporation continues to be liable for the obligations of the body corporate;
(c) an existing cause of action, claim or liability to prosecution is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may be continued to be prosecuted by or against the corporation; and |
Maintien des droits
(7) En cas de prorogation dune personne morale sous forme de société régie par la présente loi :
a) la société est propriétaire des biens de cette personne morale;
b) la société est responsable des obligations de cette personne morale;
c) aucune atteinte nest portée aux causes dactions déjà nées;
d) la société remplace la personne morale dans les poursuites civiles, pénales ou administratives engagées par ou contre celle-ci;
e) toute décision judiciaire ou quasi-judiciaire rendue en faveur de la personne morale ou contre elle est exécutoire à légard de la société. |
Current to February 11, 2020 |
150 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 187 |
Article 187 |
(e) a conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the corporation. |
||
Issued shares
(8) Subject to subsections (9) and 49(8), a share of a body corporate issued before the body corporate was continued under this Act is deemed to have been issued in compliance with this Act and with the provisions of the articles of continuance irrespective of whether the share is fully paid and irrespective of any designation, rights, privileges, restrictions or conditions set out on or referred to in the certificate representing the share. Continuance under this section does not deprive a holder of any right or privilege that the holder claims under, or relieve the holder of any liability in respect of, an issued share. |
Actions déjà émises
(8) Sous réserve des paragraphes (9) et 49(8), les actions émises avant la prorogation dune personne morale sous forme de société régie par la présente loi sont réputées lavoir été en conformité avec la présente loi et avec les clauses de prorogation, quelles aient été ou non entièrement libérées et indépendamment de leur désignation et des droits, privilèges, restrictions ou conditions mentionnés dans les certificats représentant ces actions; la prorogation, en vertu du présent article, nentraîne pas la suppression des droits, privilèges et obligations découlant des actions déjà émises. | |
Convertible shares
(9) If a corporation continued under this Act had, before it was so continued, issued a share certificate in registered form that is convertible to bearer form, the corporation shall not, if a holder of such a share certificate exercises the conversion privilege attached to the certificate, issue a share certificate in bearer form. |
Actions convertibles
(9) La société qui, avant sa prorogation sous le régime de la présente loi, avait émis des certificats dactions nominatifs mais convertibles au porteur ne peut pas émettre, au profit des titulaires qui exercent leur privilège, des certificats au porteur. | |
Definition of share
(10) For the purposes of subsections (8) and (9), share includes an instrument referred to in subsection 29(1), a share warrant as defined in the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, or a like instrument. |
Définition de action
(10) Pour lapplication des paragraphes (8) et (9), action sentend, entre autres, du titre visé au paragraphe 29(1), dune option dachat dactions au sens donné à titre au porteur dans la Loi sur les corporations canadiennes, chapitre C-32 des Statuts revisés du Canada de 1970, ou de tout titre analogue. | |
Where continued reference to par value shares permissible
(11) Where the Director determines, on the application of a body corporate, that it is not practicable to change a reference to the nominal or par value of shares of a class or series that the body corporate was authorized to issue before it was continued under this Act, the Director may, notwithstanding subsection 24(1), permit the body corporate to continue to refer in its articles to those shares, whether issued or unissued, as shares having a nominal or par value. |
Autorisation des mentions relatives à la valeur nominale ou au pair
(11) Au cas où le directeur, saisi par une personne morale, décide quil est pratiquement impossible de supprimer la référence aux actions à valeur nominale ou au pair dune catégorie ou dune série que celle-ci était autorisée à émettre avant sa prorogation en vertu de la présente loi, il peut, par dérogation au paragraphe 24(1), lautoriser à maintenir, dans ses statuts, la désignation de ces actions, même non encore émises, comme actions à valeur nominale ou au pair. | |
Limitation
(12) A corporation shall set out in its articles the maximum number of shares of a class or series referred to in subsection (11) and may not amend its articles to increase that maximum number of shares or to change the nominal or par value of those shares.
R.S., 1985, c. C-44, s. 187; 2001, c. 14, ss. 91, 135(E); 2018, c. 8, s. 25. |
Restriction
(12) La société doit énoncer dans ses statuts le nombre maximal des actions dune série ou catégorie visées au paragraphe (11) et elle ne peut modifier ses statuts en vue daugmenter ce nombre ni changer la valeur nominale ou au pair de ces actions.
L.R. (1985), ch. C-44, art. 187; 2001, ch. 14, art. 91 et 135(A); 2018, ch. 8, art. 25. |
Current to February 11, 2020 |
151 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 188 |
Article 188 |
Continuance other jurisdictions
188 (1) Subject to subsection (10), a corporation may apply to the appropriate official or public body of another jurisdiction requesting that the corporation be continued as if it had been incorporated under the laws of that other jurisdiction if the corporation
(a) is authorized by the shareholders in accordance with this section to make the application; and
(b) establishes to the satisfaction of the Director that its proposed continuance in the other jurisdiction will not adversely affect creditors or shareholders of the corporation. |
Prorogation (exportation)
188 (1) Sous réserve du paragraphe (10), la société qui y est autorisée par ses actionnaires conformément au présent article et qui convainc le directeur que ni ses créanciers ni ses actionnaires nen subiront de préjudice peut demander au fonctionnaire ou à ladministration compétents relevant dune autre autorité législative de la proroger sous le régime de celle-ci. | |
Continuance other federal Acts
(2) A corporation that is authorized by the shareholders in accordance with this section may apply to the appropriate Minister for its continuance under the Bank Act, the Canada Cooperatives Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act.
(2.1) [Repealed, 2001, c. 14, s. 92] |
Prorogation sous le régime de lois fédérales
(2) La société qui y est autorisée par ses actionnaires conformément au présent article peut demander au ministre compétent de la proroger sous le régime de la Loi sur les banques, de la Loi canadienne sur les coopératives, de la Loi sur les associations coopératives de crédit, de la Loi sur les sociétés dassurances ou de la Loi sur les sociétés de fiducie et de prêt.
(2.1) [Abrogé, 2001, ch. 14, art. 92] | |
Notice of meeting
(3) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder and shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a discontinuance under this Act. |
Avis de lassemblée
(3) Doit être envoyé aux actionnaires, conformément à larticle 135, un avis de lassemblée mentionnant le droit des actionnaires dissidents de se faire verser la juste valeur de leurs actions conformément à larticle 190, le défaut de cette mention ne rendant pas nulle le changement de régime que prévoit la présente loi. | |
Right to vote
(4) Each share of the corporation carries the right to vote in respect of a continuance whether or not it otherwise carries the right to vote. |
Droit de vote
(4) Chaque action de la société, assortie ou non du droit de vote, emporte droit de vote quant à la prorogation. | |
Shareholder approval
(5) An application for continuance becomes authorized when the shareholders voting thereon have approved of the continuance by a special resolution. |
Approbation des actionnaires
(5) La demande de prorogation est autorisée lorsque les actionnaires habiles à voter lapprouvent par voie de résolution spéciale. | |
Termination
(6) The directors of a corporation may, if authorized by the shareholders at the time of approving an application for continuance under this section, abandon the application without further approval of the shareholders. |
Désistement
(6) Les administrateurs qui y sont autorisés par les actionnaires au moment de lapprobation de la demande de prorogation peuvent renoncer à la demande. | |
Discontinuance
(7) On receipt of a notice satisfactory to the Director that the corporation has been continued under the laws of |
Changement de régime
(7) Le directeur enregistre, dès réception, tout avis attestant, à sa satisfaction, que la société a été prorogée |
Current to February 11, 2020 |
152 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 188-189 |
Articles 188-189 |
another jurisdiction or under one of the Acts referred to in subsection (2.1), the Director shall file the notice and issue a certificate of discontinuance in accordance with section 262. |
sous le régime dune autre autorité législative ou dune loi mentionnée au paragraphe (2.1) et délivre un certificat de changement de régime en conformité avec larticle 262. | |
Notice deemed to be articles
(8) For the purposes of section 262, a notice referred to in subsection (7) is deemed to be articles that are in the form that the Director fixes. |
Lavis est réputé être des statuts
(8) Pour lapplication de larticle 262, lavis visé au paragraphe (7) est réputé être des statuts en la forme établie par le directeur. | |
Rights preserved
(9) This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance. |
Maintien des droits
(9) La présente loi cesse de sappliquer à la société à la date figurant sur le certificat de changement de régime. | |
Prohibition
(10) A corporation shall not be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that
(a) the property of the corporation continues to be the property of the body corporate;
(b) the body corporate continues to be liable for the obligations of the corporation;
(c) an existing cause of action, claim or liability to prosecution is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the corporation may be continued to be prosecuted by or against the body corporate; and
(e) a conviction against, or ruling, order or judgment in favour of or against, the corporation may be enforced by or against the body corporate.
R.S., 1985, c. C-44, s. 188; 1991, c. 45, s. 555, c. 46, s. 596, c. 47, s. 723; 1994, c. 24, s. 22; 1998, c. 1, s. 381; 2001, c. 14, ss. 92, 135(E); 2007, c. 6, s. 400. |
Interdiction
(10) La loi de toute autre autorité législative sous le régime de laquelle la société est prorogée sous forme de personne morale doit prévoir que :
a) la personne morale est propriétaire des biens de cette société;
b) la personne morale est responsable des obligations de cette société;
c) aucune atteinte nest portée aux causes dactions déjà nées;
d) la personne morale remplace la société dans les poursuites civiles, pénales ou administratives engagées par ou contre celle-ci;
e) toute décision judiciaire ou quasi judiciaire rendue en faveur de la société ou contre elle est exécutoire à légard de la personne morale.
L.R. (1985), ch. C-44, art. 188; 1991, ch. 45, art. 555, ch. 46, art. 596, ch. 47, art. 723; 1994, ch. 24, art. 22; 1998, ch. 1, art. 381; 2001, ch. 14, art. 92 et 135(A); 2007, ch. 6, art. 400. | |
Borrowing powers
189 (1) Unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors of a corporation may, without authorization of the shareholders,
(a) borrow money on the credit of the corporation;
(b) issue, reissue, sell, pledge or hypothecate debt obligations of the corporation;
(c) give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and |
Pouvoir demprunt
189 (1) Sauf disposition contraire des statuts, des règlements administratifs ou de toute convention unanime des actionnaires, le conseil dadministration peut, sans lautorisation des actionnaires :
a) contracter des emprunts, compte tenu du crédit de la société;
b) émettre, réémettre ou vendre les titres de créance de la société ou les donner en garantie sous forme dhypothèque mobilière, de gage ou de nantissement;
c) garantir, au nom de la société, lexécution dune obligation à la charge dune autre personne; |
Current to February 11, 2020 |
153 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 189 |
Article 189 |
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. |
d) grever dune sûreté, notamment par hypothèque, tout ou partie des biens, présents ou futurs, de la société, afin de garantir ses obligations. | |
Delegation of borrowing powers
(2) Notwithstanding subsection 115(3) and paragraph 121(a), unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors may, by resolution, delegate the powers referred to in subsection (1) to a director, a committee of directors or an officer. |
Délégation du pouvoir demprunt
(2) Nonobstant le paragraphe 115(3) et lalinéa 121a) et sauf disposition contraire des statuts, des règlements administratifs ou de toute convention unanime dactionnaires, le conseil dadministration peut, par résolution, déléguer les pouvoirs, visés au paragraphe (1), à un administrateur, à un comité dadministrateurs ou à un dirigeant. | |
Extraordinary sale, lease or exchange
(3) A sale, lease or exchange of all or substantially all the property of a corporation other than in the ordinary course of business of the corporation requires the approval of the shareholders in accordance with subsections (4) to (8). |
Vente, location ou échange faits hors du cours normal des affaires
(3) Les ventes, locations ou échanges de la totalité ou la quasi-totalité des biens de la société, qui ninterviennent pas dans le cours normal de ses activités, sont soumis à lapprobation des actionnaires conformément aux paragraphes (4) à (8). | |
Notice of meeting
(4) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder and shall
(a) include or be accompanied by a copy or summary of the agreement of sale, lease or exchange; and
(b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a sale, lease or exchange referred to in subsection (3). |
Avis dassemblée
(4) Doit être envoyé aux actionnaires, conformément à larticle 135, un avis de lassemblée :
a) assorti dun exemplaire ou dun résumé de lacte de vente, de location ou déchange;
b) précisant le droit des actionnaires dissidents de se faire verser la juste valeur de leurs actions conformément à larticle 190, le défaut de cette mention ne rendant pas nulles les opérations visées au paragraphe (3). | |
Shareholder approval
(5) At the meeting referred to in subsection (4), the shareholders may authorize the sale, lease or exchange and may fix or authorize the directors to fix any of the terms and conditions thereof. |
Approbation des actionnaires
(5) Lors de lassemblée visée au paragraphe (4), les actionnaires peuvent autoriser la vente, la location ou léchange et en fixer les modalités, ou autoriser les administrateurs à le faire. | |
Right to vote
(6) Each share of the corporation carries the right to vote in respect of a sale, lease or exchange referred to in subsection (3) whether or not it otherwise carries the right to vote. |
Droit de vote
(6) Chaque action de la société, assortie ou non du droit de vote, emporte droit de vote quant aux opérations visées au paragraphe (3). | |
Class vote
(7) The holders of shares of a class or series of shares of the corporation are entitled to vote separately as a class or series in respect of a sale, lease or exchange referred to in subsection (3) only if such class or series is affected by |
Vote par catégorie
(7) Les détenteurs dactions dune catégorie ou dune série ne sont fondés à voter séparément sur les opérations visées au paragraphe (3) que si elles ont un effet particulier sur cette catégorie ou série. |
Current to February 11, 2020 |
154 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 189-190 |
Articles 189-190 |
the sale, lease or exchange in a manner different from the shares of another class or series. |
||
Shareholder approval
(8) A sale, lease or exchange referred to in subsection (3) is adopted when the holders of each class or series entitled to vote thereon have approved of the sale, lease or exchange by a special resolution. |
Approbation des actionnaires
(8) Ladoption des opérations visées au paragraphe (3) est subordonnée à leur approbation par résolution spéciale des actionnaires de chaque catégorie ou série fondés à voter à cet effet. | |
Termination
(9) The directors of a corporation may, if authorized by the shareholders approving a proposed sale, lease or exchange, and subject to the rights of third parties, abandon the sale, lease or exchange without further approval of the shareholders.
R.S., 1985, c. C-44, s. 189; 2001, c. 14, ss. 93, 135(E); 2011, c. 21, s. |
Abandon du projet
(9) Sous réserve des droits des tiers, les administrateurs peuvent renoncer aux opérations visées au paragraphe (3), si les actionnaires les y ont autorisés en approuvant le projet.
L.R. (1985), ch. C-44, art. 189; 2001, ch. 14, art. 93 et 135(A); 2011, ch. 21, art. 59(F). | |
Right to dissent
190 (1) Subject to sections 191 and 241, a holder of shares of any class of a corporation may dissent if the corporation is subject to an order under paragraph 192(4)(d) that affects the holder or if the corporation resolves to
(a) amend its articles under section 173 or 174 to add, change or remove any provisions restricting or constraining the issue, transfer or ownership of shares of that class;
(b) amend its articles under section 173 to add, change or remove any restriction on the business or businesses that the corporation may carry on;
(c) amalgamate otherwise than under section 184;
(d) be continued under section 188;
(e) sell, lease or exchange all or substantially all its property under subsection 189(3); or
(f) carry out a going-private transaction or a squeeze-out transaction. |
Droit à la dissidence
190 (1) Sous réserve des articles 191 et 241, les détenteurs dactions dune catégorie peuvent faire valoir leur dissidence si la société fait lobjet dune ordonnance visée à lalinéa 192(4)d), les affectant, ou si la société décide, selon le cas :
a) de modifier ses statuts conformément aux articles 173 ou 174, afin dy ajouter, de modifier ou de supprimer certaines dispositions limitant lémission, le transfert ou le droit de propriété dactions de cette catégorie;
b) de modifier ses statuts, conformément à larticle 173, afin dajouter, de modifier ou de supprimer toute restriction à ses activités commerciales;
c) de fusionner autrement quen vertu de larticle 184;
d) dobtenir une prorogation conformément à larticle 188;
e) de vendre, louer ou échanger la totalité ou la quasitotalité de ses biens en vertu du paragraphe 189(3).
f) deffectuer une opération de fermeture ou déviction. | |
Further right
(2) A holder of shares of any class or series of shares entitled to vote under section 176 may dissent if the corporation resolves to amend its articles in a manner described in that section. |
Droit complémentaire
(2) Les détenteurs dactions dune catégorie ou dune série, habiles à voter en vertu de larticle 176, peuvent faire valoir leur dissidence si la société décide dapporter à ses statuts une modification visée à cet article. | |
If one class of shares
(2.1) The right to dissent described in subsection (2) applies even if there is only one class of shares. |
Précision
(2.1) Le droit à la dissidence prévu au paragraphe (2) peut être invoqué même si la société na quune seule catégorie dactions. |
Current to February 11, 2020 |
155 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 190 |
Article 190 |
Payment for shares
(3) In addition to any other right the shareholder may have, but subject to subsection (26), a shareholder who complies with this section is entitled, when the action approved by the resolution from which the shareholder dissents or an order made under subsection 192(4) becomes effective, to be paid by the corporation the fair value of the shares in respect of which the shareholder dissents, determined as of the close of business on the day before the resolution was adopted or the order was made. |
Remboursement des actions
(3) Outre les autres droits quil peut avoir, mais sous réserve du paragraphe (26), lactionnaire qui se conforme au présent article est fondé, à lentrée en vigueur des mesures approuvées par la résolution à propos de laquelle il a fait valoir sa dissidence ou à la date de prise deffet de lordonnance visée au paragraphe 192(4), à se faire verser par la société la juste valeur des actions en cause fixée à lheure de fermeture des bureaux la veille de la date de la résolution ou de lordonnance. | |
No partial dissent
(4) A dissenting shareholder may only claim under this section with respect to all the shares of a class held on behalf of any one beneficial owner and registered in the name of the dissenting shareholder. |
Dissidence partielle interdite
(4) Lactionnaire dissident ne peut se prévaloir du présent article que pour la totalité des actions dune catégorie, inscrites à son nom mais détenues pour le compte du véritable propriétaire. | |
Objection
(5) A dissenting shareholder shall send to the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution, unless the corporation did not give notice to the shareholder of the purpose of the meeting and of their right to dissent. |
Opposition
(5) Lactionnaire dissident doit envoyer par écrit à la société, avant ou pendant lassemblée convoquée pour voter sur la résolution visée aux paragraphes (1) ou (2), son opposition à cette résolution, sauf si la société ne lui a donné avis ni de lobjet de cette assemblée ni de son droit à la dissidence. | |
Notice of resolution
(6) The corporation shall, within ten days after the shareholders adopt the resolution, send to each shareholder who has filed the objection referred to in subsection (5) notice that the resolution has been adopted, but such notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn their objection. |
Avis de résolution
(6) La société doit, dans les dix jours suivant ladoption de la résolution, en aviser les actionnaires ayant maintenu leur opposition conformément au paragraphe (5). | |
Demand for payment
(7) A dissenting shareholder shall, within twenty days after receiving a notice under subsection (6) or, if the shareholder does not receive such notice, within twenty days after learning that the resolution has been adopted, send to the corporation a written notice containing
(a) the shareholders name and address;
(b) the number and class of shares in respect of which the shareholder dissents; and
(c) a demand for payment of the fair value of such shares. |
Demande de paiement
(7) Lactionnaire dissident doit, dans les vingt jours de la réception de lavis prévu au paragraphe (6) ou, à défaut, de la date où il prend connaissance de ladoption de la résolution, envoyer un avis écrit à la société indiquant :
a) ses nom et adresse;
b) le nombre et la catégorie des actions sur lesquelles est fondée sa dissidence;
c) une demande de versement de la juste valeur de ces actions. | |
Share certificate
(8) A dissenting shareholder shall, within thirty days after sending a notice under subsection (7), send the certificates representing the shares in respect of which the |
Certificat dactions
(8) Lactionnaire dissident doit, dans les trente jours de lenvoi de lavis prévu au paragraphe (7), envoyer à la société ou à son agent de transfert, les certificats des actions sur lesquelles est fondée sa dissidence. |
Current to February 11, 2020 |
156 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 190 |
Article 190 |
shareholder dissents to the corporation or its transfer agent. |
||
Forfeiture
(9) A dissenting shareholder who fails to comply with subsection (8) has no right to make a claim under this section. |
Déchéance
(9) Pour se prévaloir du présent article, lactionnaire dissident doit se conformer au paragraphe (8). | |
Endorsing certificate
(10) A corporation or its transfer agent shall endorse on any share certificate received under subsection (8) a notice that the holder is a dissenting shareholder under this section and shall forthwith return the share certificates to the dissenting shareholder. |
Endossement du certificat
(10) La société ou son agent de transfert doit immédiatement renvoyer à lactionnaire dissident les certificats, reçus conformément au paragraphe (8), munis à lendos dune mention, dûment signée, attestant que lactionnaire est un dissident conformément au présent article. | |
Suspension of rights
(11) On sending a notice under subsection (7), a dissenting shareholder ceases to have any rights as a shareholder other than to be paid the fair value of their shares as determined under this section except where
(a) the shareholder withdraws that notice before the corporation makes an offer under subsection (12),
(b) the corporation fails to make an offer in accordance with subsection (12) and the shareholder withdraws the notice, or
(c) the directors revoke a resolution to amend the articles under subsection 173(2) or 174(5), terminate an amalgamation agreement under subsection 183(6) or an application for continuance under subsection 188(6), or abandon a sale, lease or exchange under subsection 189(9),
in which case the shareholders rights are reinstated as of the date the notice was sent. |
Suspension des droits
(11) Dès lenvoi de lavis visé au paragraphe (7), lactionnaire dissident perd tous ses droits sauf celui de se faire rembourser la juste valeur de ses actions conformément au présent article; cependant, il recouvre ses droits rétroactivement à compter de la date denvoi de lavis visé au paragraphe (7) si, selon le cas :
a) il retire lavis avant que la société fasse loffre visée au paragraphe (12);
b) la société nayant pas fait loffre conformément au paragraphe (12), il retire son avis;
c) les administrateurs annulent, en vertu des paragraphes 173(2) ou 174(5), la résolution visant la modification des statuts, résilient la convention de fusion en vertu du paragraphe 183(6), renoncent à la demande de prorogation en vertu du paragraphe 188(6), ou à la vente, à la location ou à léchange en vertu du paragraphe 189(9). | |
Offer to pay
(12) A corporation shall, not later than seven days after the later of the day on which the action approved by the resolution is effective or the day the corporation received the notice referred to in subsection (7), send to each dissenting shareholder who has sent such notice
(a) a written offer to pay for their shares in an amount considered by the directors of the corporation to be the fair value, accompanied by a statement showing how the fair value was determined; or
(b) if subsection (26) applies, a notification that it is unable lawfully to pay dissenting shareholders for their shares. |
Offre de versement
(12) La société doit, dans les sept jours de la date dentrée en vigueur des mesures approuvées dans la résolution ou, si elle est postérieure, de celle de réception de lavis visé au paragraphe (7), envoyer aux actionnaires dissidents qui ont envoyé leur avis :
a) une offre écrite de remboursement de leurs actions à leur juste valeur, avec une déclaration précisant le mode de calcul retenu par les administrateurs;
b) en cas dapplication du paragraphe (26), un avis les informant quil lui est légalement impossible de rembourser. |
Current to February 11, 2020 |
157 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 190 |
Article 190 |
Same terms
(13) Every offer made under subsection (12) for shares of the same class or series shall be on the same terms. |
Modalités identiques
(13) Les offres prévues au paragraphe (12) doivent être faites selon les mêmes modalités si elles visent des actions de la même catégorie ou série. | |
Payment
(14) Subject to subsection (26), a corporation shall pay for the shares of a dissenting shareholder within ten days after an offer made under subsection (12) has been accepted, but any such offer lapses if the corporation does not receive an acceptance thereof within thirty days after the offer has been made. |
Remboursement
(14) Sous réserve du paragraphe (26), la société doit procéder au remboursement dans les dix jours de lacceptation de loffre faite en vertu du paragraphe (12); loffre devient caduque si lacceptation ne lui parvient pas dans les trente jours de loffre. | |
Corporation may apply to court
(15) Where a corporation fails to make an offer under subsection (12), or if a dissenting shareholder fails to accept an offer, the corporation may, within fifty days after the action approved by the resolution is effective or within such further period as a court may allow, apply to a court to fix a fair value for the shares of any dissenting shareholder. |
Demande de la société au tribunal
(15) À défaut par la société de faire loffre prévue au paragraphe (12), ou par lactionnaire dissident de laccepter, la société peut, dans les cinquante jours de lentrée en vigueur des mesures approuvées dans la résolution ou dans tel délai supplémentaire accordé par le tribunal, demander au tribunal de fixer la juste valeur des actions. | |
Shareholder application to court
(16) If a corporation fails to apply to a court under subsection (15), a dissenting shareholder may apply to a court for the same purpose within a further period of twenty days or within such further period as a court may allow. |
Demande de lactionnaire au tribunal
(16) Faute par la société de saisir le tribunal conformément au paragraphe (15), lactionnaire dissident bénéficie, pour le faire, dun délai supplémentaire de vingt jours ou du délai supplémentaire qui peut être accordé par le tribunal. | |
Venue
(17) An application under subsection (15) or (16) shall be made to a court having jurisdiction in the place where the corporation has its registered office or in the province where the dissenting shareholder resides if the corporation carries on business in that province. |
Compétence territoriale
(17) La demande prévue aux paragraphes (15) ou (16) doit être présentée au tribunal du ressort du siège social de la société ou de la résidence de lactionnaire dissident, si celle-ci est fixée dans une province où la société exerce son activité commerciale. | |
No security for costs
(18) A dissenting shareholder is not required to give security for costs in an application made under subsection (15) or (16). |
Absence de caution pour frais
(18) Dans le cadre dune demande visée aux paragraphes (15) ou (16), lactionnaire dissident nest pas tenu de fournir une caution pour les frais. | |
Parties
(19) On an application to a court under subsection (15) or (16),
(a) all dissenting shareholders whose shares have not been purchased by the corporation shall be joined as parties and are bound by the decision of the court; and
(b) the corporation shall notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. |
Parties
(19) Sur demande présentée au tribunal en vertu des paragraphes (15) ou (16) :
a) tous les actionnaires dissidents dont la société na pas acheté les actions doivent être joints comme parties à linstance et sont liés par la décision du tribunal;
b) la société avise chaque actionnaire dissident concerné de la date, du lieu et de la conséquence de la demande, ainsi que de son droit de comparaître en personne ou par ministère davocat. |
Current to February 11, 2020 |
158 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 190 |
Article 190 |
Powers of court
(20) On an application to a court under subsection (15) or (16), the court may determine whether any other person is a dissenting shareholder who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting shareholders. |
Pouvoirs du tribunal
(20) Sur présentation de la demande prévue aux paragraphes (15) ou (16), le tribunal peut décider sil existe dautres actionnaires dissidents à joindre comme parties à linstance et doit fixer la juste valeur des actions en question. | |
Appraisers
(21) A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of the dissenting shareholders. |
Experts
(21) Le tribunal peut charger des estimateurs de laider à calculer la juste valeur des actions des actionnaires dissidents. | |
Final order
(22) The final order of a court shall be rendered against the corporation in favour of each dissenting shareholder and for the amount of the shares as fixed by the court. |
Ordonnance définitive
(22) Lordonnance définitive est rendue contre la société en faveur de chaque actionnaire dissident et indique la valeur des actions fixée par le tribunal. | |
Interest
(23) A court may in its discretion allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective until the date of payment. |
Intérêts
(23) Le tribunal peut allouer sur la somme versée à chaque actionnaire dissident des intérêts à un taux raisonnable pour la période comprise entre la date dentrée en vigueur des mesures approuvées dans la résolution et celle du versement. | |
Notice that subsection (26) applies
(24) If subsection (26) applies, the corporation shall, within ten days after the pronouncement of an order under subsection (22), notify each dissenting shareholder that it is unable lawfully to pay dissenting shareholders for their shares. |
Avis dapplication du par. (26)
(24) Dans les cas prévus au paragraphe (26), la société doit, dans les dix jours du prononcé de lordonnance prévue au paragraphe (22), aviser chaque actionnaire dissident quil lui est légalement impossible de rembourser. | |
Effect where subsection (26) applies
(25) If subsection (26) applies, a dissenting shareholder, by written notice delivered to the corporation within thirty days after receiving a notice under subsection (24), may
(a) withdraw their notice of dissent, in which case the corporation is deemed to consent to the withdrawal and the shareholder is reinstated to their full rights as a shareholder; or
(b) retain a status as a claimant against the corporation, to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the corporation but in priority to its shareholders. |
Effet de lapplication du par. (26)
(25) Dans les cas prévus au paragraphe (26), lactionnaire dissident peut, par avis écrit remis à la société dans les trente jours de la réception de lavis prévu au paragraphe (24) :
a) soit retirer son avis de dissidence et recouvrer ses droits, la société étant réputée consentir à ce retrait;
b) soit conserver la qualité de créancier pour être remboursé par la société dès quelle sera légalement en mesure de le faire ou, en cas de liquidation, pour être colloqué après les droits des autres créanciers mais par préférence aux actionnaires. | |
Limitation
(26) A corporation shall not make a payment to a dissenting shareholder under this section if there are reasonable grounds for believing that |
Limitation
(26) La société ne peut effectuer aucun paiement aux actionnaires dissidents en vertu du présent article sil existe des motifs raisonnables de croire que : |
Current to February 11, 2020 |
159 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 190-191 |
Articles 190-191 |
(a) the corporation is or would after the payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporations assets would thereby be less than the aggregate of its liabilities.
R.S., 1985, c. C-44, s. 190; 1994, c. 24, s. 23; 2001, c. 14, ss. 94, 134(F), 135(E); 2011, c. 21, s. 60(F). |
a) ou bien elle ne peut, ou ne pourrait de ce fait, acquitter son passif à échéance;
b) ou bien la valeur de réalisation de son actif serait, de ce fait, inférieure à son passif.
L.R. (1985), ch. C-44, art. 190; 1994, ch. 24, art. 23; 2001, ch. 14, art. 94, 134(F) et 135(A); 2011, ch. 21, art. 60(F). | |
Definition of reorganization
191 (1) In this section, reorganization means a court order made under
(a) section 241;
(b) the Bankruptcy and Insolvency Act approving a proposal; or
(c) any other Act of Parliament that affects the rights among the corporation, its shareholders and creditors. |
Définition de réorganisation
191 (1) Au présent article, la réorganisation dune société se fait par voie dordonnance que le tribunal rend en vertu :
a) soit de larticle 241;
b) soit de la Loi sur la faillite et linsolvabilitépour approuver une proposition;
c) soit de toute loi fédérale touchant les rapports de droit entre la société, ses actionnaires ou ses créanciers. | |
Powers of court
(2) If a corporation is subject to an order referred to in subsection (1), its articles may be amended by such order to effect any change that might lawfully be made by an amendment under section 173. |
Pouvoirs du tribunal
(2) Lordonnance rendue conformément au paragraphe (1) à légard dune société peut effectuer dans ses statuts les modifications prévues à larticle 173. | |
Further powers
(3) If a court makes an order referred to in subsection (1), the court may also
(a) authorize the issue of debt obligations of the corporation, whether or not convertible into shares of any class or having attached any rights or options to acquire shares of any class, and fix the terms thereof; and
(b) appoint directors in place of or in addition to all or any of the directors then in office. |
Pouvoirs supplémentaires
(3) Le tribunal qui rend lordonnance visée au paragraphe (1) peut également :
a) autoriser, en en fixant les modalités, lémission de titres de créance, convertibles ou non en actions de toute catégorie ou assortis du droit ou de loption dacquérir de telles actions;
b) ajouter dautres administrateurs ou remplacer ceux qui sont en fonctions. | |
Articles of reorganization
(4) After an order referred to in subsection (1) has been made, articles of reorganization in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable. |
Réorganisation
(4) Après le prononcé de lordonnance visée au paragraphe (1), les clauses réglementant la réorganisation sont envoyées au directeur, en la forme établie par lui, accompagnées, le cas échéant, des documents exigés aux articles 19 et 113. | |
Certificate of reorganization
(5) On receipt of articles of reorganization, the Director shall issue a certificate of amendment in accordance with section 262. |
Certificat
(5) Sur réception des clauses de réorganisation, le directeur délivre un certificat de modification en conformité avec larticle 262. |
Current to February 11, 2020 |
160 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 191-192 |
Articles 191-192 |
Effect of certificate
(6) A reorganization becomes effective on the date shown in the certificate of amendment and the articles of incorporation are amended accordingly. |
Effet du certificat
(6) La réorganisation prend effet à la date figurant sur le certificat de modification; les statuts constitutifs sont modifiés en conséquence. | |
No dissent
(7) A shareholder is not entitled to dissent under section 190 if an amendment to the articles of incorporation is effected under this section.
R.S., 1985, c. C-44, s. 191; 1992, c. 27, s. 90; 2001, c. 14, s. 95. |
Pas de dissidence
(7) Les actionnaires ne peuvent invoquer larticle 190 pour faire valoir leur dissidence à loccasion de la modification des statuts constitutifs conformément au présent article.
L.R. (1985), ch. C-44, art. 191; 1992, ch. 27, art. 90; 2001, ch. 14, art. 95. | |
Definition of arrangement
192 (1) In this section, arrangement includes
(a) an amendment to the articles of a corporation;
(b) an amalgamation of two or more corporations;
(c) an amalgamation of a body corporate with a corporation that results in an amalgamated corporation subject to this Act;
(d) a division of the business carried on by a corporation;
(e) a transfer of all or substantially all the property of a corporation to another body corporate in exchange for property, money or securities of the body corporate;
(f) an exchange of securities of a corporation for property, money or other securities of the corporation or property, money or securities of another body corporate;
(f.1) a going-private transaction or a squeeze-out transaction in relation to a corporation;
(g) a liquidation and dissolution of a corporation; and
(h) any combination of the foregoing. |
Définition de arrangement
192 (1) Au présent article, arrangement sentend également de :
a) la modification des statuts dune société;
b) la fusion de sociétés;
c) la fusion dune personne morale et dune société pour former une société régie par la présente loi;
d) le fractionnement de lactivité commerciale dune société;
e) la cession de la totalité ou de la quasi-totalité des biens dune société à une autre personne morale moyennant du numéraire, des biens ou des valeurs mobilières de celle-ci;
f) léchange de valeurs mobilières dune société contre des biens, du numéraire ou dautres valeurs mobilières soit de la société, soit dune autre personne morale;
f.1) une opération de fermeture ou déviction au sein dune société;
g) la liquidation et la dissolution dune société;
h) une combinaison des opérations susvisées. | |
Where corporation insolvent
(2) For the purposes of this section, a corporation is insolvent
(a) where it is unable to pay its liabilities as they become due; or
(b) where the realizable value of the assets of the corporation are less than the aggregate of its liabilities and stated capital of all classes. |
Cas dinsolvabilité de la société
(2) Pour lapplication du présent article, une société est insolvable dans lun ou lautre des cas suivants :
a) elle ne peut acquitter son passif à échéance;
b) la valeur de réalisation de son actif est inférieure à la somme de son passif et de son capital déclaré. |
Current to February 11, 2020 |
161 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Section 192 |
Article 192 |
Application to court for approval of arrangement
(3) Where it is not practicable for a corporation that is not insolvent to effect a fundamental change in the nature of an arrangement under any other provision of this Act, the corporation may apply to a court for an order approving an arrangement proposed by the corporation. |
Demande dapprobation au tribunal
(3) Lorsquil est pratiquement impossible pour la société qui nest pas insolvable dopérer, en vertu dune autre disposition de la présente loi, une modification de structure équivalente à un arrangement, elle peut demander au tribunal dapprouver, par ordonnance, larrangement quelle propose. | |
Powers of court
(4) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,
(a) an order determining the notice to be given to any interested person or dispensing with notice to any person other than the Director;
(b) an order appointing counsel, at the expense of the corporation, to represent the interests of the shareholders;
(c) an order requiring a corporation to call, hold and conduct a meeting of holders of securities or options or rights to acquire securities in such manner as the court directs;
(d) an order permitting a shareholder to dissent under section 190; and
(e) an order approving an arrangement as proposed by the corporation or as amended in any manner the court may direct. |
Pouvoir du tribunal
(4) Le tribunal, saisi dune demande en vertu du présent article, peut rendre toute ordonnance provisoire ou finale en vue notamment :
a) de prévoir lavis à donner aux intéressés ou de dispenser de donner avis à toute personne autre que le directeur;
b) de nommer, aux frais de la société, un avocat pour défendre les intérêts des actionnaires;
c) denjoindre à la société, selon les modalités quil fixe, de convoquer et de tenir une assemblée des détenteurs de valeurs mobilières, doptions ou de droits dacquérir des valeurs mobilières;
d) dautoriser un actionnaire à faire valoir sa dissidence en vertu de larticle 190;
e) dapprouver ou de modifier selon ses directives larrangement proposé par la société. | |
Notice to Director
(5) An applicant for any interim or final order under this section shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. |
Avis au directeur
(5) La personne qui présente une demande dordonnance provisoire ou finale en vertu du présent article doit en donner avis au directeur, et celui-ci peut comparaître en personne ou par ministère davocat. | |
Articles of arrangement
(6) After an order referred to in paragraph (4)(e) has been made, articles of arrangement in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable. |
Clauses de larrangement
(6) Après le prononcé de lordonnance visée à lalinéa (4)e), les clauses de larrangement sont envoyées au directeur en la forme établie par lui, accompagnés, le cas échéant, des documents exigés par les articles 19 et 113. | |
Certificate of arrangement
(7) On receipt of articles of arrangement, the Director shall issue a certificate of arrangement in accordance with section 262. |
Certificat darrangement
(7) Dès réception des clauses de larrangement, le directeur délivre un certificat darrangement conformément à larticle 262. |
Current to February 11, 2020 |
162 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XV Fundamental Changes |
PARTIE XV Modifications de structure | |
Sections 192-206 |
Articles 192-206 |
Effect of certificate
(8) An arrangement becomes effective on the date shown in the certificate of arrangement.
R.S., 1985, c. C-44, s. 192; 1994, c. 24, s. 24; 2001, c. 14, s. 96. |
Prise deffet de larrangement
(8) Larrangement prend effet à la date figurant sur le certificat darrangement.
L.R. (1985), ch. C-44, art. 192; 1994, ch. 24, art. 24; 2001, ch. 14, art. 96. | |
PART XVI | PARTIE XVI | |
Going-private Transactions and Squeeze-out Transactions | Opérations de fermeture et déviction | |
Going-private transactions
193 A corporation may carry out a going-private transaction. However, if there are any applicable provincial securities laws, a corporation may not carry out a going-private transaction unless the corporation complies with those laws.
R.S., 1985, c. C-44, s. 193; 2001, c. 14, s. 97; 2018, c. 8, s. 26(F). |
Opérations de fermeture
193 La société peut effectuer une opération de fermeture. Toutefois, si léventuelle législation provinciale en matière de valeurs mobilières sapplique dans son cas, elle ne peut le faire à moins de sy conformer.
L.R. (1985), ch. C-44, art. 193; 2001, ch. 14, art. 97; 2018, ch. 8, art. 26(F). | |
Squeeze-out transactions
194 A corporation may not carry out a squeeze-out transaction unless, in addition to any approval by holders of shares required by or under this Act or the articles of the corporation, the transaction is approved by ordinary resolution of the holders of each class of shares that are affected by the transaction, voting separately, whether or not the shares otherwise carry the right to vote. However, the following do not have the right to vote on the resolution:
(a) affiliates of the corporation; and
(b) holders of shares that would, following the squeeze-out transaction, be entitled to consideration of greater value or to superior rights or privileges than those available to other holders of shares of the same class.
R.S., 1985, c. C-44, s. 194; 2001, c. 14, s. 97.
195 to 205 [Repealed, 2001, c. 14, s. 97] |
Opérations déviction
194 Une opération déviction ne peut être effectuée que si, en plus de toute approbation exigée des détenteurs dactions de la société par la présente loi et les statuts, lopération est approuvée par les détenteurs dactions de chaque catégorie visée par celle-ci par résolution ordinaire votée séparément, même si les actions de cette catégorie ne confèrent aucun droit de vote, à lexception des détenteurs suivants :
a) les personnes morales du même groupe que la société;
b) ceux qui, à la suite de lopération, auraient droit à une contrepartie ou à des droits ou privilèges supérieurs à ceux que pourraient recevoir les détenteurs des autres actions de la même catégorie.
L.R. (1985), ch. C-44, art. 194; 2001, ch. 14, art. 97.
195 à 205 [Abrogés, 2001, ch. 14, art. 97] | |
PART XVII | PARTIE XVII | |
Compulsory and Compelled Acquisitions | Acquisitions forcées | |
Definitions
206 (1) The definitions in this subsection apply in this Part.
dissenting offeree means, where a take-over bid is made for all the shares of a class of shares, a holder of a |
Définitions
206 (1) Les définitions qui suivent sappliquent à la présente partie.
action Action conférant ou non un droit de vote, y compris la valeur mobilière immédiatement convertible |
Current to February 11, 2020 |
163 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Section 206 |
Article 206 |
share of that class who does not accept the take-over bid and includes a subsequent holder of that share who acquires it from the first mentioned holder; (pollicité dissident)
offer includes an invitation to make an offer. (pollicitation)
offeree means a person to whom a take-over bid is made. (pollicité)
offeree corporation means a distributing corporation whose shares are the object of a take-over bid. (société pollicitée)
offeror means a person, other than an agent or mandatary, who makes a take-over bid, and includes two or more persons who, directly or indirectly,
(a) make take-over bids jointly or in concert; or
(b) intend to exercise jointly or in concert voting rights attached to shares for which a take-over bid is made. (pollicitant)
share means a share, with or without voting rights, and includes
(a) a security currently convertible into such a share; and
(b) currently exercisable options and rights to acquire such a share or such a convertible security. (action)
take-over bid means an offer made by an offeror to shareholders of a distributing corporation at approximately the same time to acquire all of the shares of a class of issued shares, and includes an offer made by a distributing corporation to repurchase all of the shares of a class of its shares. (offre dachat visant à la mainmise) |
en une telle action et loption ou le droit, susceptible dexercice immédiat, dacquérir une telle action ou valeur mobilière. (share)
offre dachat visant à la mainmise Loffre quun pollicitant adresse à peu près au même moment à des actionnaires dune société ayant fait appel au public pour acquérir toutes les actions dune catégorie dactions émises. Y est assimilée la pollicitation dune telle société visant le rachat de toutes les actions dune catégorie de ses actions. (take-over bid)
pollicitant Toute personne, à lexception du mandataire, qui fait une offre dachat visant à la mainmise et, en outre, les personnes qui, même indirectement, conjointement ou de concert :
a) ou bien font une telle offre;
b) ou bien ont lintention dexercer les droits de vote attachés aux actions faisant lobjet de loffre. (offeror)
pollicitation Est assimilée à la pollicitation linvitation à faire une offre. (offer)
pollicité Toute personne à laquelle est faite loffre dachat visant à la mainmise. (offeree)
pollicité dissident Dans le cas dune offre dachat visant à la mainmise et portant sur la totalité des actions dune catégorie, lactionnaire pollicité qui refuse loffre ainsi que ses ayants cause. (dissenting offeree)
société pollicitée Société ayant fait appel au public dont les actions font lobjet dune offre dachat visant à la mainmise. (offeree corporation) | |
Right to acquire
(2) If within one hundred and twenty days after the date of a take-over bid the bid is accepted by the holders of not less than ninety per cent of the shares of any class of shares to which the take-over bid relates, other than shares held at the date of the take-over bid by or on behalf of the offeror or an affiliate or associate of the offer-or, the offeror is entitled, on complying with this section, to acquire the shares held by the dissenting offerees. |
Acquisition
(2) Le pollicitant a le droit, en se conformant au présent article, dacquérir les actions des pollicités dissidents, en cas dacceptation de loffre dachat visant à la mainmise, dans les cent vingt jours de la date où elle est faite, par les détenteurs de quatre-vingt-dix pour cent au moins des actions de la catégorie en cause, sans tenir compte des actions détenues, même indirectement, par le pollicitant ou les personnes morales de son groupe ou les personnes qui ont des liens avec lui, à la date de loffre. | |
Notice
(3) An offeror may acquire shares held by a dissenting offeree by sending by registered mail within sixty days |
Avis
(3) Le pollicitant peut acquérir les actions des pollicités dissidents en leur envoyant ainsi quau directeur, par |
Current to February 11, 2020 |
164 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Section 206 |
Article 206 |
after the date of termination of the take-over bid and in any event within one hundred and eighty days after the date of the take-over bid, an offerors notice to each dissenting offeree and to the Director stating that
(a) the offerees holding not less than ninety per cent of the shares to which the bid relates accepted the take-over bid;
(b) the offeror is bound to take up and pay for or has taken up and paid for the shares of the offerees who accepted the take-over bid;
(c) a dissenting offeree is required to elect
(i) to transfer their shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or
(ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within twenty days after receiving the offerors notice;
(d) a dissenting offeree who does not notify the offer-or in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the of-feror on the same terms that the offeror acquired the shares from the offerees who accepted the take-over bid; and
(e) a dissenting offeree must send their shares to which the take-over bid relates to the offeree corporation within twenty days after receiving the offerors notice. |
courrier recommandé, dans les soixante jours de la date dexpiration de loffre dachat visant à la mainmise et, en tout état de cause, dans les cent quatre-vingts jours de la date de loffre, un avis précisant à la fois :
a) que les pollicités détenant au moins quatre-vingt-dix pour cent des actions en cause ont accepté loffre;
b) quil est tenu de prendre livraison, contre paiement, des actions des pollicités acceptants, ou quil la déjà fait;
c) que les pollicités dissidents doivent décider :
(i) soit de lui céder leurs actions selon les conditions offertes aux pollicités acceptants,
(ii) soit dexiger le paiement de la juste valeur de leurs actions en conformité avec les paragraphes (9) à (18), en le lui faisant savoir dans les vingt jours de la réception de lavis;
d) quà défaut de donner avis conformément à lalinéa (5)b), ils sont réputés avoir choisi de lui céder leurs actions aux conditions faites aux pollicités acceptants;
e) quils doivent envoyer les actions en cause à la société pollicitée dans les vingt jours de la réception de lavis. | |
Notice of adverse claim
(4) Concurrently with sending the offerors notice under subsection (3), the offeror shall send to the offeree corporation a notice of adverse claim in accordance with section 78 with respect to each share held by a dissenting of-feree. |
Avis dopposition
(4) Le pollicitant envoie à la société pollicitée, simultanément, lavis mentionné au paragraphe (3) et, pour chaque action détenue par un pollicité dissident, lavis dopposition visé à larticle 78. | |
Share certificate
(5) A dissenting offeree to whom an offerors notice is sent under subsection (3) shall, within twenty days after receiving the notice,
(a) send the share certificates of the class of shares to which the take-over bid relates to the offeree corporation; and
(b) elect |
Certificat daction
(5) Les pollicités dissidents doivent, dans les vingt jours suivant la réception de lavis mentionné au paragraphe (3) :
a) envoyer à la société pollicitée les certificats des actions visées par loffre;
b) soit céder au pollicitant leurs actions aux conditions offertes aux pollicités acceptants, soit exiger, en donnant avis au pollicitant dans ce délai, le paiement de la juste valeur de leurs actions en conformité avec les paragraphes (9) à (18). |
Current to February 11, 2020 |
165 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Section 206 |
Article 206 |
(i) to transfer the shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or
(ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within those twenty days. |
||
Deemed election
(5.1) A dissenting offeree who does not notify the offeror in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the offeror on the same terms on which the offeror acquired the shares from the offerees who accepted the take-over bid. |
Choix réputé
(5.1) À défaut par les pollicités dissidents de donner avis conformément à lalinéa (5)b), ils sont réputés avoir choisi de céder au pollicitant leurs actions aux conditions faites aux pollicités acceptants. | |
Payment
(6) Within twenty days after the offeror sends an offer-ors notice under subsection (3), the offeror shall pay or transfer to the offeree corporation the amount of money or other consideration that the offeror would have had to pay or transfer to a dissenting offeree if the dissenting of-feree had elected to accept the take-over bid under sub-paragraph (5)(b)(i). |
Paiement
(6) Dans les vingt jours suivant lenvoi de lavis mentionné au paragraphe (3), le pollicitant doit remettre à la société pollicitée les fonds ou toute autre contrepartie quil aurait eu à remettre aux pollicités dissidents sils avaient accepté de lui céder leurs actions conformément à lalinéa (5)b). | |
Consideration
(7) The offeree corporation is deemed to hold in trust for the dissenting shareholders the money or other consideration it receives under subsection (6), and the offeree corporation shall deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board, and shall place the other consideration in the custody of a bank or such other body corporate. |
Contrepartie
(7) La société pollicitée est réputée détenir en fiducie, pour le compte des actionnaires dissidents, les fonds ou toute autre contrepartie reçus en vertu du paragraphe (6); elle doit déposer les fonds à un compte distinct ouvert auprès dune banque ou dune autre personne morale bénéficiant de lassurance de la Société dassurance-dépôts du Canada ou de la Régie de lassurance-dépôts du Québec et confier toute autre contrepartie à la garde dune de ces institutions. | |
When corporation is offeror
(7.1) A corporation that is an offeror making a take-over bid to repurchase all of the shares of a class of its shares is deemed to hold in trust for the dissenting shareholders the money and other consideration that it would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (5)(b)(i), and the corporation shall, within twenty days after a notice is sent under subsection (3), deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board, and shall place the other consideration in the custody of a bank or such other body corporate. |
Contrepartie
(7.1) Dans le cas où le pollicitant est une société qui vise à racheter toutes les actions dune catégorie quelconque, celui-ci est réputé détenir en fiducie, pour le compte des pollicités dissidents, les fonds ou toute autre contrepartie quil aurait eu à leur remettre sils avaient accepté de lui céder leurs actions conformément à lalinéa (5)b). Il doit, dans les vingt jours suivant lenvoi de lavis visé au paragraphe (3), déposer les fonds dans un compte distinct ouvert auprès dune banque ou dune autre personne morale bénéficiant de lassurance de la Société dassurance-dépôts du Canada ou de la Régie de lassurance-dépôts du Québec et confier toute autre contrepartie à la garde de lune de ces institutions. | |
Duty of offeree corporation
(8) Within thirty days after the offeror sends a notice under subsection (3), the offeree corporation shall |
Obligation de la société pollicitée
(8) Dans les trente jours suivant lenvoi de lavis mentionné au paragraphe (3), la société pollicitée doit : |
Current to February 11, 2020 |
166 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Section 206 |
Article 206 |
(a) if the payment or transfer required by subsection (6) is made, issue to the offeror a share certificate in respect of the shares that were held by dissenting of-ferees;
(b) give to each dissenting offeree who elects to accept the take-over bid terms under subparagraph (5)(b)(i) and who sends share certificates as required by paragraph (5)(a) the money or other consideration to which the offeree is entitled, disregarding fractional shares, which may be paid for in money; and
(c) if the payment or transfer required by subsection (6) is made and the money or other consideration is deposited as required by subsection (7) or (7.1), send to each dissenting shareholder who has not sent share certificates as required by paragraph (5)(a) a notice stating that
(i) the dissenting shareholders shares have been cancelled,
(ii) the offeree corporation or some designated person holds in trust for the dissenting shareholder the money or other consideration to which that shareholder is entitled as payment for or in exchange for the shares, and
(iii) the offeree corporation will, subject to subsections (9) to (18), send that money or other consideration to that shareholder without delay after receiving the shares. |
a) délivrer au pollicitant les certificats des actions que détenaient les pollicités dissidents sil sest conformé au paragraphe (6);
b) remettre aux pollicités dissidents qui acceptent de céder leurs actions conformément à lalinéa (5)b) et qui envoient leurs certificats dactions conformément à lalinéa (5)a), les fonds ou toute autre contrepartie auxquels ils ont droit, sans tenir compte des fractions dactions dont le règlement peut toujours se faire en numéraire;
c) si la contrepartie exigée par le paragraphe (6) est remise et, selon quelle est en numéraire ou en nature, déposée ou confiée conformément aux paragraphes (7) ou (7.1), envoyer aux pollicités dissidents qui ne se sont pas conformés à lalinéa (5)a) un avis les informant que :
(i) leurs actions ont été annulées,
(ii) la société pollicitée ou toute autre personne désignée détient pour eux en fiducie les fonds ou toute autre contrepartie auxquels ils ont droit,
(iii) la société pollicitée leur enverra, sous réserve des paragraphes (9) à (18), les fonds ou la contrepartie dès réception de leurs actions. | |
Application to court
(9) If a dissenting offeree has elected to demand payment of the fair value of the shares under subparagraph (5)(b)(ii), the offeror may, within twenty days after it has paid the money or transferred the other consideration under subsection (6), apply to a court to fix the fair value of the shares of that dissenting offeree. |
Demande au tribunal
(9) Le pollicitant peut, dans les vingt jours suivant la remise prévue au paragraphe (6), demander au tribunal de fixer la juste valeur des actions des pollicités dissidents qui souhaitent obtenir paiement de leurs actions conformément à lalinéa (5)b). | |
Idem
(10) If an offeror fails to apply to a court under subsection (9), a dissenting offeree may apply to a court for the same purpose within a further period of twenty days. |
Idem
(10) Faute par le pollicitant de saisir le tribunal conformément au paragraphe (9), les pollicités dissidents bénéficient dun délai supplémentaire de vingt jours pour le faire. | |
Status of dissenter if no court application
(11) Where no application is made to a court under subsection (10) within the period set out in that subsection, a dissenting offeree is deemed to have elected to transfer their shares to the offeror on the same terms that the of-feror acquired the shares from the offerees who accepted the take-over bid. |
Cas de dissident qui ne saisit pas le tribunal
(11) Le pollicité dissident, qui na pas saisi le tribunal conformément au paragraphe (10) et dans le délai qui y est fixé, est censé avoir transféré ses actions au pollicitant aux mêmes conditions que celui-ci a acquis celles des pollicités acceptants. |
Current to February 11, 2020 |
167 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Section 206 |
Article 206 |
Venue
(12) An application under subsection (9) or (10) shall be made to a court having jurisdiction in the place where the corporation has its registered office or in the province where the dissenting offeree resides if the corporation carries on business in that province. |
Compétence territoriale
(12) Les demandes prévues aux paragraphes (9) ou (10) doivent être présentées au tribunal du ressort du siège social de la société ou de la résidence du pollicité dissident, si celle-ci est fixée dans une province où la société exerce son activité commerciale. | |
No security for costs
(13) A dissenting offeree is not required to give security for costs in an application made under subsection (9) or (10). |
Absence de cautionnement pour frais
(13) Dans le cadre dune demande visée aux paragraphes (9) ou (10), les pollicités dissidents ne sont pas tenus de fournir de cautionnement pour les frais. | |
Parties
(14) On an application under subsection (9) or (10)
(a) all dissenting offerees referred to in subparagraph (5)(b)(ii) whose shares have not been acquired by the offeror shall be joined as parties and are bound by the decision of the court; and
(b) the offeror shall notify each affected dissenting of-feree of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. |
Parties
(14) Sur demande présentée conformément aux paragraphes (9) ou (10) :
a) tous les pollicités dissidents qui veulent obtenir paiement et dont les actions nont pas été acquises par le pollicitant sont joints comme parties à linstance et liés par la décision du tribunal;
b) le pollicitant avise chaque pollicité dissident concerné de la date, du lieu et des conséquences de la demande, ainsi que de son droit de comparaître en personne ou par ministère davocat. | |
Powers of court
(15) On an application to a court under subsection (9) or (10), the court may determine whether any other person is a dissenting offeree who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting offerees. |
Pouvoirs du tribunal
(15) Avant de fixer la juste valeur des actions de tous les pollicités dissidents, le tribunal peut, sur demande présentée conformément aux paragraphes (9) ou (10), décider sil existe dautres pollicités dissidents à joindre comme parties à linstance. | |
Appraisers
(16) A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of a dissenting offeree. |
Experts
(16) Le tribunal peut charger des estimateurs experts de laider à fixer la juste valeur des actions des pollicités dissidents. | |
Final order
(17) The final order of the court shall be made against the offeror in favour of each dissenting offeree and for the amount for the shares as fixed by the court. |
Ordonnance définitive
(17) Lordonnance définitive est rendue contre le pollicitant, en faveur de chaque pollicité dissident, et indique la valeur des actions fixée par le tribunal. | |
Additional powers
(18) In connection with proceedings under this section, a court may make any order it thinks fit and, without limiting the generality of the foregoing, it may
(a) fix the amount of money or other consideration that is required to be held in trust under subsection (7) or (7.1); |
Pouvoirs supplémentaires
(18) À loccasion des procédures prévues au présent article, le tribunal peut rendre toute ordonnance quil estime pertinente et, notamment :
a) fixer le montant en numéraire ou toute autre contrepartie, à détenir en fiducie conformément aux paragraphes (7) ou (7.1); |
Current to February 11, 2020 |
168 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVII Compulsory and Compelled Acquisitions |
PARTIE XVII Acquisitions forcées | |
Sections 206-207 |
Articles 206-207 |
(b) order that that money or other consideration be held in trust by a person other than the offeree corporation;
(c) allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date they send or deliver their share certificates under subsection (5) until the date of payment; and
(d) order that any money payable to a shareholder who cannot be found be paid to the Receiver General and subsection 227(3) applies in respect thereof.
R.S., 1985, c. C-44, s. 206; 2001, c. 14, ss. 99, 135(E); 2011, c. 21, s. 61. |
b) faire détenir le montant en numéraire ou toute autre contrepartie en fiducie par une personne autre que la société pollicitée;
c) allouer, sur la somme à payer à chaque pollicité dissident, des intérêts à un taux raisonnable pour la période comprise entre la date denvoi des certificats dactions conformément au paragraphe (5) et celle du paiement;
d) prévoir le versement, au receveur général, des fonds payables aux actionnaires introuvables, auquel cas le paragraphe 227(3) sapplique.
L.R. (1985), ch. C-44, art. 206; 2001, ch. 14, art. 99 et 135(A); 2011, ch. 21, art. 61. | |
Obligation to acquire shares
206.1 (1) If a shareholder holding shares of a distributing corporation does not receive an offerors notice under subsection 206(3), the shareholder may
(a) within ninety days after the date of termination of the take-over bid, or
(b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of
(i) the date of termination of the take-over bid, and
(ii) the date on which the shareholder learned of the take-over bid,
require the offeror to acquire those shares. |
Acquisition forcée à la demande dun actionnaire
206.1 (1) Lactionnaire qui détient des actions dune société ayant fait appel au public et qui na pas reçu du pollicitant lavis visé au paragraphe 206(3) peut exiger de ce dernier lacquisition de ces actions :
a) soit dans les quatre-vingt-dix jours suivant la date dexpiration de loffre dachat visant à la mainmise;
b) soit, sil na pas reçu une telle offre, dans le délai visé à lalinéa a) ou dans les quatre-vingt-dix jours suivant la date où il a pris connaissance de loffre si ce délai est plus long. | |
Conditions
(2) If a shareholder requires the offeror to acquire shares under subsection (1), the offeror shall acquire the shares on the same terms under which the offeror acquired or will acquire the shares of the offerees who accepted the take-over bid.
2001, c. 14, s. 100. |
Conditions
(2) Le pollicitant est alors tenu dacquérir les actions aux mêmes conditions que celles faites aux pollicités acceptants.
2001, ch. 14, art. 100. | |
PART XVIII | PARTIE XVIII | |
Liquidation and Dissolution | Liquidation et dissolution | |
Definition of court
207 In this Part, court means a court having jurisdiction in the place where the corporation has its registered office.
1974-75-76, c. 33, s. 200; 1978-79, c. 9, s. 1(F). |
Définition de tribunal
207 Dans la présente partie, tribunal désigne le tribunal compétent du ressort du siège social de la société.
1974-75-76, ch. 33, art. 200; 1978-79, ch. 9, art. 1(F). |
Current to February 11, 2020 |
169 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 208-209 |
Articles 208-209 |
Application of Part
208 (1) This Part, other than sections 209 and 212, does not apply to a corporation that is an insolvent person or a bankrupt as those terms are defined in section 2 of the Bankruptcy and Insolvency Act. |
Application de la présente partie
208 (1) La présente partie, sauf les articles 209 et 212, ne sapplique pas aux sociétés qui sont des personnes insolvables au sens de larticle 2 de la Loi sur la faillite et linsolvabilité ou des faillies au sens de cet article 2. | |
Staying proceedings
(2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve a corporation shall be stayed if the corporation is at any time found, in a proceeding under the Bankruptcy and Insolvency Act, to be an insolvent person as defined in section 2 of that Act.
R.S., 1985, c. C-44, s. 208; 1992, c. 27, s. 90; 2001, c. 14, s. 101; 2018, c. 8, s. 27. |
Suspension des procédures
(2) Toute procédure soit de dissolution, soit de liquidation et de dissolution engagée en vertu de la présente partie à légard dune société est suspendue dès la constatation, au cours de procédures intentées en vertu de la Loi sur la faillite et linsolvabilité, que la société est une personne insolvable au sens de larticle 2 de cette loi.
L.R. (1985), ch. C-44, art. 208; 1992, ch. 27, art. 90; 2001, ch. 14, art. 101; 2018, ch. 8, art. 27. | |
Revival
209 (1) When a corporation or other body corporate is dissolved under this Part, section 268 of this Act, section 261 of the Canada Business Corporations Act, chapter 33 of the Statutes of Canada, 1974-75-76, or subsection 297(6) of the Canada Not-for-profit Corporations Act, any interested person may apply to the Director to have the dissolved corporation or other body corporate revived as a corporation under this Act. |
Reconstitution
209 (1) Tout intéressé peut demander au directeur la reconstitution en société régie par la présente loi dune société ou dune autre personne morale dissoute en vertu de la présente partie, de larticle 268 de la présente loi, de larticle 261 de la Loi sur les corporations commerciales canadiennes, chapitre 33 des Statuts du Canada de 1974-75-76, ou du paragraphe 297(6) de la Loi canadienne sur les organisations à but non lucratif. | |
Articles of revival
(2) Articles of revival in the form that the Director fixes shall be sent to the Director. |
Clauses de reconstitution
(2) Les clauses de reconstitution sont envoyées au directeur en la forme établie par lui. | |
Certificate of revival
(3) On receipt of articles of revival, the Director shall issue a certificate of revival in accordance with section 262, if
(a) the dissolved corporation or other body corporate has fulfilled all conditions precedent that the Director considers reasonable; and
(b) there is no valid reason for refusing to issue the certificate. |
Certificat de reconstitution
(3) À la réception des clauses de reconstitution, le directeur délivre un certificat de reconstitution au titre de larticle 262 si :
a) dune part, la société ou la personne morale dissoute a rempli les conditions préalables à la délivrance quil estime raisonnables;
b) dautre part, il ny a aucun motif valable den refuser la délivrance. | |
Date of revival
(3.1) The dissolved corporation or other body corporate is revived as a corporation under this Act on the date shown on the certificate of revival. |
Reconstitution
(3.1) La société ou la personne morale dissoute est reconstituée en société régie par la présente loi à la date précisée sur le certificat. | |
Rights and obligations preserved
(4) Subject to any reasonable terms that may be imposed by the Director, to the rights acquired by any person after its dissolution and to any changes to the internal affairs |
Maintien des droits et obligations
(4) Sous réserve des modalités raisonnables imposées par le directeur, des droits acquis par toute personne après sa dissolution et de tout changement aux affaires internes de la société ou de la personne morale survenu |
Current to February 11, 2020 |
170 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 209-210 |
Articles 209-210 |
of the corporation or other body corporate after its dissolution, the revived corporation is, in the same manner and to the same extent as if it had not been dissolved,
(a) restored to its previous position in law, including the restoration of any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and
(b) liable for the obligations that it would have had if it had not been dissolved whether they arise before its dissolution or after its dissolution and before its revival. |
après sa dissolution, la société reconstituée recouvre, comme si elle navait jamais été dissoute :
a) la même situation juridique, notamment ses droits et privilèges, indépendamment de leur date dacquisition;
b) la responsabilité des obligations qui seraient les siennes si elle navait pas été dissoute, indépendamment de la date où elles ont été contractées. | |
Legal actions
(5) Any legal action respecting the affairs of a revived corporation taken between the time of its dissolution and its revival is valid and effective. |
Action en justice
(5) Est valide toute action en justice concernant les affaires internes de la société reconstituée intentée entre le moment de sa dissolution et celui de sa reconstitution. | |
Definition of interested person
(6) In this section, interested person includes
(a) a shareholder, a director, an officer, an employee and a creditor of the dissolved corporation or other body corporate;
(b) a person who has a contract other than, in Que-bec, a contract by gratuitous title with the dissolved corporation or other body corporate;
(c) a person who, although at the time of dissolution of the corporation or other body corporate was not a person described in paragraph (a), would be such a person if a certificate of revival is issued under this section; and
(d) a trustee in bankruptcy or liquidator for the dissolved corporation or other body corporate.
R.S., 1985, c. C-44, s. 209; 2001, c. 14, s. 102; 2009, c. 23, s. 310; 2018, c. 8, s. 28. |
Définition
(6) Pour lapplication du présent article, intéressé sentend notamment :
a) des actionnaires, administrateurs, dirigeants, employés et créanciers de la société ou de la personne morale dissoute;
b) de toute personne liée par un contrat à lexclusion, au Québec, du contrat à titre gratuit conclu avec la société ou la personne morale dissoute;
c) de toute personne qui, bien que non visée par lalinéa a) à la date de la dissolution, le deviendrait si la société ou la personne morale était reconstituée;
d) du syndic de faillite ou du liquidateur de la société ou de la personne morale dissoute.
L.R. (1985), ch. C-44, art. 209; 2001, ch. 14, art. 102; 2009, ch. 23, art. 310; 2018, ch. 8, art. 28. | |
Dissolution before commencing business
210 (1) A corporation that has not issued any shares may be dissolved at any time by resolution of all the directors. |
Dissolution avant le début des opérations
210 (1) La société nayant émis aucune action peut être dissoute par résolution de tous les administrateurs. | |
Dissolution if no property
(2) A corporation that has no property and no liabilities may be dissolved by special resolution of the shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote. |
Dissolution lorsquil ny a pas de biens
(2) La société sans biens ni dettes peut être dissoute par résolution spéciale soit des actionnaires soit, en présence de plusieurs catégories dactions, des détenteurs dactions de chaque catégorie assorties ou non du droit de vote. | |
Dissolution where property disposed of
(3) A corporation that has property or liabilities or both may be dissolved by special resolution of the |
Dissolution après répartition des biens
(3) La société, qui a des biens ou des dettes ou les deux à la fois, peut être dissoute par résolution spéciale soit des |
Current to February 11, 2020 |
171 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 210-211 |
Articles 210-211 |
shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote, if
(a) by the special resolution or resolutions the shareholders authorize the directors to cause the corporation to distribute any property and discharge any liabilities; and
(b) the corporation has distributed any property and discharged any liabilities before it sends articles of dissolution to the Director pursuant to subsection (4). |
actionnaires soit, en présence de plusieurs catégories dactions, des détenteurs dactions de chaque catégorie assorties ou non du droit de vote, pourvu que :
a) dune part, les résolutions autorisent les administrateurs à effectuer une répartition de biens et un règlement de dettes;
b) dautre part, la société ait effectué une répartition de biens et un règlement de dettes avant denvoyer les clauses de dissolution au directeur conformément au paragraphe (4). | |
Articles of dissolution
(4) Articles of dissolution in the form that the Director fixes shall be sent to the Director. |
Clauses de dissolution
(4) Les clauses de dissolution sont envoyées au directeur en la forme établie par lui. | |
Certificate of dissolution
(5) On receipt of articles of dissolution, the Director shall issue a certificate of dissolution in accordance with section 262. |
Certificat de dissolution
(5) Sur réception des clauses de dissolution, le directeur délivre un certificat de dissolution en conformité avec larticle 262. | |
Effect of certificate
(6) The corporation ceases to exist on the date shown in the certificate of dissolution.
R.S., 1985, c. C-44, s. 210; 2001, c. 14, s. 103. |
Effet du certificat
(6) La société cesse dexister à la date figurant sur le certificat de dissolution.
L.R. (1985), ch. C-44, art. 210; 2001, ch. 14, art. 103. | |
Proposing liquidation and dissolution
211 (1) The directors may propose, or a shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 137, make a proposal for, the voluntary liquidation and dissolution of a corporation. |
Proposition de liquidation et dissolution
211 (1) La liquidation et la dissolution volontaires de la société peuvent être proposées par les administrateurs ou, conformément à larticle 137, par tout actionnaire habile à voter à lassemblée annuelle. | |
Notice of meeting
(2) Notice of any meeting of shareholders at which voluntary liquidation and dissolution is to be proposed shall set out the terms thereof. |
Avis dassemblée
(2) Lavis de convocation de lassemblée, qui doit statuer sur la proposition de liquidation et de dissolution volontaires, doit en exposer les modalités. | |
Shareholders resolution
(3) A corporation may liquidate and dissolve by special resolution of the shareholders or, where the corporation has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote. |
Résolution des actionnaires
(3) La société peut prononcer sa liquidation et sa dissolution par résolution spéciale des actionnaires ou, le cas échéant, par résolution spéciale des détenteurs de chaque catégorie dactions, assorties ou non du droit de vote. | |
Statement of intent to dissolve
(4) A statement of intent to dissolve in the form that the Director fixes shall be sent to the Director. |
Déclaration dintention
(4) Une déclaration dintention de dissolution est envoyée au directeur en la forme établie par lui. |
Current to February 11, 2020 |
172 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Section 211 |
Article 211 |
Certificate of intent to dissolve
(5) On receipt of a statement of intent to dissolve, the Director shall issue a certificate of intent to dissolve in accordance with section 262. |
Certificat dintention
(5) Sur réception de la déclaration dintention de dissolution, le directeur délivre, en conformité avec larticle 262, un certificat dintention de dissolution. | |
Effect of certificate
(6) On issue of a certificate of intent to dissolve, the corporation shall cease to carry on business except to the extent necessary for the liquidation, but its corporate existence continues until the Director issues a certificate of dissolution. |
Effet du certificat
(6) Dès la délivrance du certificat, la société doit cesser toute activité commerciale, sauf dans la mesure nécessaire à la liquidation, mais sa personnalité morale ne cesse dexister quà la délivrance du certificat de dissolution. | |
Liquidation
(7) After issue of a certificate of intent to dissolve, the corporation shall
(a) immediately cause notice thereof to be sent to each known creditor of the corporation;
(b) without delay take reasonable steps to give notice of it in each province in Canada where the corporation was carrying on business at the time it sent the statement of intent to dissolve to the Director;
(c) proceed to collect its property, to dispose of properties that are not to be distributed in kind to its shareholders, to discharge all its obligations and to do all other acts required to liquidate its business; and
(d) after giving the notice required under paragraphs (a) and (b) and adequately providing for the payment or discharge of all its obligations, distribute its remaining property, either in money or in kind, among its shareholders according to their respective rights. |
Liquidation
(7) À la suite de la délivrance du certificat dintention de dissolution, la société doit :
a) en envoyer immédiatement avis à chaque créancier connu;
b) prendre sans délai toute disposition utile pour en donner avis dans chaque province où la société exerçait ses activités commerciales au moment de lenvoi au directeur de la déclaration dintention de dissolution;
c) accomplir tous actes utiles à la dissolution, notamment recouvrer ses biens, disposer des biens non destinés à être répartis en nature entre les actionnaires et honorer ses obligations;
d) après avoir donné les avis exigés aux alinéas a) et b) et constitué une provision suffisante pour honorer ses obligations, répartir le reliquat de lactif, en numéraire ou en nature, entre les actionnaires, selon leurs droits respectifs. | |
Supervision by court
(8) The Director or any interested person may, at any time during the liquidation of a corporation, apply to a court for an order that the liquidation be continued under the supervision of the court as provided in this Part, and on such application the court may so order and make any further order it thinks fit. |
Surveillance judiciaire
(8) Le tribunal, sur demande présentée à cette fin et au cours de la liquidation par le directeur ou par tout intéressé, peut, par ordonnance, décider que la liquidation sera poursuivie sous sa surveillance conformément à la présente partie, et prendre toute autre mesure pertinente. | |
Notice to Director
(9) An applicant under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel. |
Avis au directeur
(9) Lintéressé qui présente la demande prévue au présent article doit en donner avis au directeur; celui-ci peut comparaître en personne ou par ministère davocat. | |
Revocation
(10) At any time after issue of a certificate of intent to dissolve and before issue of a certificate of dissolution, a certificate of intent to dissolve may be revoked by sending to the Director a statement of revocation of intent to |
Révocation
(10) Le certificat dintention de dissolution peut, après sa délivrance et avant celle du certificat de dissolution, être révoqué par résolution adoptée conformément au paragraphe (3) et sur envoi au directeur dune |
Current to February 11, 2020 |
173 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 211-212 |
Articles 211-212 |
dissolve in the form that the Director fixes, if such revocation is approved in the same manner as the resolution under subsection (3). |
déclaration de renonciation à dissolution en la forme établie par lui. | |
Certificate of revocation of intent to dissolve
(11) On receipt of a statement of revocation of intent to dissolve, the Director shall issue a certificate of revocation of intent to dissolve in accordance with section 262. |
Certificat
(11) Sur réception de la déclaration de renonciation à dissolution, le directeur délivre, en conformité avec larticle 262, le certificat à cet effet. | |
Effect of certificate
(12) On the date shown in the certificate of revocation of intent to dissolve, the revocation is effective and the corporation may continue to carry on its business or businesses. |
Effet du certificat
(12) Le certificat de renonciation à dissolution prend effet à la date qui y figure et la société peut dès lors continuer à exercer ses activités commerciales. | |
Right to dissolve
(13) If a certificate of intent to dissolve has not been revoked and the corporation has complied with subsection (7), the corporation shall prepare articles of dissolution. |
Droit de dissolution
(13) En labsence de renonciation à dissolution, la société, après avoir observé le paragraphe (7), rédige les clauses régissant la dissolution. | |
Articles of dissolution
(14) Articles of dissolution in the form that the Director fixes shall be sent to the Director. |
Clauses de dissolution
(14) Les clauses de dissolution sont envoyées au directeur en la forme établie par lui. | |
Certificate of dissolution
(15) On receipt of articles of dissolution, the Director shall issue a certificate of dissolution in accordance with section 262. |
Certificat de dissolution
(15) Sur réception des clauses de dissolution, le directeur délivre un certificat de dissolution en conformité avec larticle 262. | |
Effect of certificate
(16) The corporation ceases to exist on the date shown in the certificate of dissolution.
R.S., 1985, c. C-44, s. 211; 2001, c. 14, s. 104. |
Effet du certificat
(16) La société cesse dexister à la date figurant sur le certificat de dissolution.
L.R. (1985), ch. C-44, art. 211; 2001, ch. 14, art. 104. | |
Dissolution by Director
212 (1) Subject to subsections (2) and (3), the Director may
(a) dissolve a corporation by issuing a certificate of dissolution under this section if the corporation
(i) has not commenced business within three years after the date shown in its certificate of incorporation,
(ii) has not carried on its business for three consecutive years,
(iii) is in default for a period of one year in sending to the Director any fee, notice or document required by this Act, or
(iv) does not have any directors or is in the situation described in subsection 109(4); or |
Dissolution par le directeur
212 (1) Sous réserve des paragraphes (2) et (3), le directeur peut :
a) soit dissoudre, par la délivrance du certificat de dissolution prévu au présent article, toute société qui, selon le cas :
(i) na pas commencé ses opérations dans les trois ans suivant la date figurant sur son certificat de constitution,
(ii) na pas exercé ses activités commerciales pendant trois ans consécutifs,
(iii) omet, pendant un délai dun an, denvoyer au directeur les droits, avis ou documents exigés par la présente loi, |
Current to February 11, 2020 |
174 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 212-213 |
Articles 212-213 |
(b) apply to a court for an order dissolving the corporation, in which case section 217 applies. |
(iv) est sans administrateur ou se trouve dans la situation visée au paragraphe 109(4);
b) soit demander au tribunal sa dissolution par voie dordonnance, auquel cas larticle 217 sapplique. | |
Publication
(2) The Director shall not dissolve a corporation under this section until the Director has
(a) given one hundred and twenty days notice of the decision to dissolve the corporation to the corporation and to each director thereof; and
(b) published notice of that decision in a publication generally available to the public. |
Publication
(2) Le directeur ne peut dissoudre, en vertu du présent article, une société avant :
a) de lui avoir donné, ainsi quà chacun de ses administrateurs, un préavis de cent vingt jours de sa décision;
b) davoir publié un avis de son intention dans une publication destinée au grand public. | |
Certificate of dissolution
(3) Unless cause to the contrary has been shown or an order has been made by a court under section 246, the Director may, after the expiration of the period referred to in subsection (2), issue a certificate of dissolution in the form that the Director fixes. |
Certificat de dissolution
(3) En labsence dopposition justifiée ou dordonnance rendue en vertu de larticle 246, le directeur peut, à lexpiration du délai visé au paragraphe (2), délivrer le certificat de dissolution en la forme établie par lui. | |
Exception non-payment of incorporation fee
(3.1) Despite anything in this section, the Director may dissolve a corporation by issuing a certificate of dissolution if the required fee for the issuance of a certificate of incorporation has not been paid. |
Non-paiement des droits de constitution
(3.1) Malgré toute autre disposition du présent article, le directeur peut dissoudre une société par la délivrance du certificat de dissolution lorsque les droits requis pour la délivrance dun certificat de constitution nont pas été payés. | |
Effect of certificate
(4) The corporation ceases to exist on the date shown in the certificate of dissolution.
R.S., 1985, c. C-44, s. 212; 1994, c. 24, s. 25; 2001, c. 14, ss. 105, 135(E); 2018, c. 8, s. 29(F). |
Effet du certificat
(4) La société cesse dexister à la date figurant sur le certificat de dissolution.
L.R. (1985), ch. C-44, art. 212; 1994, ch. 24, art. 25; 2001, ch. 14, art. 105 et 135(A); 2018, ch. 8, art. 29(F). | |
Grounds for dissolution
213 (1) The Director or any interested person may apply to a court for an order dissolving a corporation if the corporation has
(a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings of shareholders;
(b) contravened subsection 16(2) or section 21, 157 or 159; or
(c) procured any certificate under this Act by misrepresentation. |
Motifs de dissolution
213 (1) Le directeur ou tout intéressé peut demander au tribunal de prononcer, par ordonnance, la dissolution de la société qui, selon le cas :
a) na pas observé pendant au moins deux ans consécutifs les dispositions de la présente loi en matière de tenue des assemblées annuelles;
b) a enfreint les dispositions du paragraphe 16(2) ou des articles 21, 157 ou 159;
c) a obtenu un certificat sur présentation de faits erronés. |
Current to February 11, 2020 |
175 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 213-214 |
Articles 213-214 |
Notice to Director
(2) An applicant under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel. |
Avis au directeur
(2) Lintéressé qui présente la demande prévue au présent article doit en donner avis au directeur; celui-ci peut comparaître en personne ou par ministère davocat. | |
Dissolution order
(3) On an application under this section or section 212, the court may order that the corporation be dissolved or that the corporation be liquidated and dissolved under the supervision of the court, and the court may make any other order it thinks fit. |
Ordonnance de dissolution
(3) Sur demande présentée en vertu du présent article ou de larticle 212, le tribunal peut rendre toute ordonnance quil estime pertinente et, notamment, prononcer la dissolution de la société ou en prescrire la dissolution et la liquidation sous sa surveillance. | |
Certificate
(4) On receipt of an order under this section, section 212 or 214, the Director shall
(a) if the order is to dissolve the corporation, issue a certificate of dissolution in the form that the Director fixes; or
(b) if the order is to liquidate and dissolve the corporation under the supervision of the court, issue a certificate of intent to dissolve in the form that the Director fixes and publish notice of the order in a publication generally available to the public. |
Certificat
(4) Sur réception de lordonnance visée au présent article ou aux articles 212 ou 214, le directeur délivre, en la forme établie par lui, un certificat :
a) de dissolution, sil sagit dune ordonnance à cet effet;
b) dintention de dissolution, sil sagit dune ordonnance de liquidation et de dissolution sous la surveillance du tribunal; il en fait publier un avis dans une publication destinée au grand public. | |
Effect of certificate
(5) The corporation ceases to exist on the date shown in the certificate of dissolution.
R.S., 1985, c. C-44, s. 213; 2001, c. 14, s. 106; 2018, c. 8, s. 30(F). |
Effet du certificat
(5) La société cesse dexister à la date figurant sur le certificat de dissolution.
L.R. (1985), ch. C-44, art. 213; 2001, ch. 14, art. 106; 2018, ch. 8, art. 30(F). | |
Further grounds
214 (1) A court may order the liquidation and dissolution of a corporation or any of its affiliated corporations on the application of a shareholder,
(a) if the court is satisfied that in respect of a corporation or any of its affiliates
(i) any act or omission of the corporation or any of its affiliates effects a result,
(ii) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or
(iii) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner
that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer; or
(b) if the court is satisfied that |
Autres motifs
214 (1) À la demande dun actionnaire, le tribunal peut ordonner la liquidation et la dissolution de la société ou de toute autre société de son groupe dans lun ou lautre des cas suivants :
a) il constate quelle abuse des droits de tout détenteur de valeurs mobilières, créancier, administrateur ou dirigeant, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :
(i) soit en raison de son comportement,
(ii) soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes,
(iii) soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs;
b) il constate : |
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Dernière modification le 1 janvier 2020 |
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PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 214-216 |
Articles 214-216 |
(i) a unanimous shareholder agreement entitles a complaining shareholder to demand dissolution of the corporation after the occurrence of a specified event and that event has occurred, or
(ii) it is just and equitable that the corporation should be liquidated and dissolved. |
(i) soit la survenance dun événement qui, selon une convention unanime des actionnaires permet à lactionnaire mécontent dexiger la dissolution,
(ii) soit le caractère juste et équitable de cette mesure. | |
Alternative order
(2) On an application under this section, a court may make such order under this section or section 241 as it thinks fit. |
Ordonnance subsidiaire
(2) Sur demande présentée en vertu du présent article, le tribunal peut rendre, conformément à cet article ou à larticle 241, toute ordonnance quil estime pertinente. | |
Application of s. 242
(3) Section 242 applies to an application under this section.
R.S., 1985, c. C-44, s. 214; 2001, c. 14, s. 107(F). |
Application de lart. 242
(3) Larticle 242 sapplique aux demandes visées au présent article.
L.R. (1985), ch. C-44, art. 214; 2001, ch. 14, art. 107(F). | |
Application for supervision
215 (1) An application to a court to supervise a voluntary liquidation and dissolution under subsection 211(8) shall state the reasons, verified by an affidavit of the applicant, why the court should supervise the liquidation and dissolution. |
Demande de surveillance
215 (1) La demande de surveillance présentée au tribunal conformément au paragraphe 211(8) doit être motivée, avec laffidavit du demandeur à lappui. | |
Court supervision
(2) If a court makes an order applied for under subsection 211(8), the liquidation and dissolution of the corporation shall continue under the supervision of the court in accordance with this Act.
1974-75-76, c. 33, s. 208; 1978-79, c. 9, s. 1(F). |
Surveillance
(2) La liquidation et la dissolution doivent se poursuivre, conformément à la présente loi, sous la surveillance du tribunal, si lordonnance prévue au paragraphe 211(8) est rendue.
1974-75-76, ch. 33, art. 208; 1978-79, ch. 9, art. 1(F). | |
Application to court
216 (1) An application to a court under subsection 214(1) shall state the reasons, verified by an affidavit of the applicant, why the corporation should be liquidated and dissolved. |
Demande au tribunal
216 (1) La demande de liquidation et de dissolution visée au paragraphe 214(1) doit être motivée, avec laffidavit du demandeur à lappui. | |
Show cause order
(2) On an application under subsection 214(1), the court may make an order requiring the corporation and any person having an interest in the corporation or claim against it to show cause, at a time and place specified in the order, within four weeks after the date of the order, why the corporation should not be liquidated and dissolved. |
Ordonnance préliminaire
(2) Après le dépôt de la demande visée au paragraphe 214(1), le tribunal peut, par ordonnance, requérir la société ainsi que tout intéressé ou créancier dexpliquer, dans les quatre semaines de lordonnance et aux lieu, date et heure indiqués, pourquoi la liquidation et la dissolution seraient inopportunes. | |
Powers of court
(3) On an application under subsection 214(1), the court may order the directors and officers of the corporation to furnish the court with all material information known to or reasonably ascertainable by them, including
(a) financial statements of the corporation; |
Pouvoirs du tribunal
(3) Après le dépôt de la demande visée au paragraphe 214(1), le tribunal peut ordonner aux administrateurs et dirigeants de lui fournir tous les renseignements pertinents en leur possession ou quils peuvent raisonnablement obtenir, y compris : |
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Dernière modification le 1 janvier 2020 |
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PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 216-217 |
Articles 216-217 |
(b) the name and address of each shareholder of the corporation; and
(c) the name and address of each known creditor or claimant, including any creditor or claimant with unliquidated, future or contingent claims, and any person with whom the corporation has a contract. |
a) les états financiers de la société;
b) les noms et adresses des actionnaires;
c) les noms et adresses des créanciers ou réclamants connus, y compris ceux qui ont des créances non liquidées, futures ou éventuelles, et des cocontractants de la société. | |
Publication
(4) A copy of an order made under subsection (2) shall be
(a) published as directed in the order, at least once in each week before the time appointed for the hearing, in a newspaper published or distributed in the place where the corporation has its registered office; and
(b) served on the Director and each person named in the order. |
Publication
(4) Lordonnance rendue en vertu du paragraphe (2) est à la fois :
a) insérée de la manière y indiquée, une fois au moins chaque semaine précédant la date de laudience, dans un journal publié ou diffusé au lieu du siège social de la société;
b) signifiée au directeur et aux personnes y désignées. | |
Person responsible
(5) Publication and service of an order under this section shall be effected by the corporation or by such other person and in such manner as the court may order.
R.S., 1985, c. C-44, s. 216; 1999, c. 31, s. 64(E). |
Personne responsable
(5) La publication et la signification des ordonnances visées au présent article sont faites, selon les modalités que prescrit le tribunal, par la société ou la personne quil désigne.
L.R. (1985), ch. C-44, art. 216; 1999, ch. 31, art. 64(A). | |
Powers of court
217 In connection with the dissolution or the liquidation and dissolution of a corporation, the court may, if it is satisfied that the corporation is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order to liquidate;
(b) an order appointing a liquidator, with or without security, fixing the liquidators remuneration and replacing a liquidator;
(c) an order appointing inspectors or referees, specifying their powers, fixing their remuneration and replacing inspectors or referees;
(d) an order determining the notice to be given to any interested person, or dispensing with notice to any person;
(e) an order determining the validity of any claims made against the corporation;
(f) an order, at any stage of the proceedings, restraining the directors and officers from |
Pouvoirs du tribunal
217 À loccasion de la dissolution ou de la liquidation et de la dissolution, le tribunal peut, sil constate la capacité de la société de payer ou de constituer une provision pour honorer ses obligations, rendre les ordonnances quil estime pertinentes et en vue, notamment :
a) de procéder à la liquidation;
b) de nommer un liquidateur et dexiger de lui une garantie, de fixer sa rémunération et de le remplacer;
c) de nommer des inspecteurs ou des arbitres, de préciser leurs pouvoirs, de fixer leur rémunération et de les remplacer;
d) de décider sil y a lieu de donner avis aux intéressés ou à toute autre personne;
e) de juger de la validité des réclamations faites contre la société;
f) dinterdire, à tout stade de la procédure, aux administrateurs et aux dirigeants :
(i) soit dexercer tout ou partie de leurs pouvoirs, |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
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PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Section 217 |
Article 217 |
(i) exercising any of their powers, or
(ii) collecting or receiving any debt or other property of the corporation, and from paying out or transferring any property of the corporation, except as permitted by the court;
(g) an order determining and enforcing the duty or liability of any present or former director, officer or shareholder
(i) to the corporation, or
(ii) for an obligation of the corporation;
(h) an order approving the payment, satisfaction or compromise of claims against the corporation and the retention of assets for such purpose, and determining the adequacy of provisions for the payment or discharge of obligations of the corporation, whether liquidated, unliquidated, future or contingent;
(i) an order disposing of or destroying the documents and records of the corporation;
(j) on the application of a creditor, the inspectors or the liquidator, an order giving directions on any matter arising in the liquidation;
(k) after notice has been given to all interested parties, an order relieving a liquidator from any omission or default on such terms as the court thinks fit and confirming any act of the liquidator;
(l) subject to section 223, an order approving any proposed interim or final distribution to shareholders in money or in property;
(m) an order disposing of any property belonging to creditors or shareholders who cannot be found;
(n) on the application of any director, officer, security holder, creditor or the liquidator,
(i) an order staying the liquidation on such terms and conditions as the court thinks fit,
(ii) an order continuing or discontinuing the liquidation proceedings, or
(iii) an order to the liquidator to restore to the corporation all its remaining property; and
(o) after the liquidator has rendered a final account to the court, an order dissolving the corporation.
R.S., 1985, c. C-44, s. 217; 2001, c. 14, ss. 108, 135(E); 2011, c. 21, s. 62(F). |
(ii) soit de percevoir toute créance de la société ou de payer, céder ou recevoir tout bien de celle-ci, sauf de la manière autorisée par le tribunal;
g) de préciser et de mettre en jeu la responsabilité des administrateurs, dirigeants ou actionnaires ou de leurs prédécesseurs :
(i) soit envers la société,
(ii) soit envers les tiers pour les obligations de la société;
h) dapprouver, en ce qui concerne les dettes de la société, tout paiement, règlement, transaction ou rétention déléments dactif, et de juger si les provisions constituées suffisent à acquitter les obligations de la société, quelles soient ou non liquidées, futures ou éventuelles;
i) de fixer lusage qui sera fait des documents et registres de la société ou de les détruire;
j) sur demande dun créancier, des inspecteurs ou du liquidateur, de donner des instructions sur toute question touchant à la liquidation;
k) sur avis à tous les intéressés, de décharger le liquidateur de ses manquements, selon les modalités que le tribunal estime pertinentes, et de confirmer ses actes;
l) sous réserve de larticle 223, dapprouver tout projet de répartition provisoire ou définitive entre les actionnaires, en numéraire ou en nature;
m) de fixer la destination des biens appartenant aux créanciers ou aux actionnaires introuvables;
n) sur demande de tout administrateur, dirigeant, détenteur de valeurs mobilières ou créancier ou du liquidateur :
(i) de surseoir à la liquidation, selon les modalités que le tribunal estime pertinentes,
(ii) de poursuivre ou dinterrompre la procédure de liquidation,
(iii) denjoindre au liquidateur de restituer à la société le reliquat des biens de celle-ci;
o) après la reddition de comptes définitive du liquidateur devant le tribunal, de dissoudre la société.
L.R. (1985), ch. C-44, art. 217; 2001, ch. 14, art. 108 et 135(A); 2011, ch. 21, art. 62(F). |
Current to February 11, 2020 |
179 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 218-221 |
Articles 218-221 |
Effect of order
218 The liquidation of a corporation commences when a court makes an order therefor.
1974-75-76, c. 33, s. 211; 1978-79, c. 9, s. 1(F). |
Effet de lordonnance
218 La liquidation de la société commence dès que le tribunal rend une ordonnance à cet effet.
1974-75-76, ch. 33, art. 211; 1978-79, ch. 9, art. 1(F). | |
Cessation of business and powers
219 (1) If a court makes an order for liquidation of a corporation,
(a) the corporation continues in existence but shall cease to carry on business, except the business that is, in the opinion of the liquidator, required for an orderly liquidation; and
(b) the powers of the directors and shareholders cease and vest in the liquidator, except as specifically authorized by the court. |
Cessation dactivité et perte de pouvoirs
219 (1) À la suite de lordonnance de liquidation :
a) la société, tout en continuant à exister, cesse dexercer ses activités commerciales, à lexception de celles que le liquidateur estime nécessaires au déroulement normal des opérations de la liquidation;
b) les pouvoirs des administrateurs et des actionnaires sont dévolus au liquidateur, sauf indication contraire et expresse du tribunal. | |
Delegation by liquidator
(2) The liquidator may delegate any powers vested in the liquidator by paragraph (1)(b) to the directors or shareholders.
R.S., 1985, c. C-44, s. 219; 2001, c. 14, s. 135(E). |
Délégation par le liquidateur
(2) Le liquidateur peut déléguer aux administrateurs ou aux actionnaires la totalité ou une partie des pouvoirs qui lui sont dévolus en vertu de lalinéa (1)b).
L.R. (1985), ch. C-44, art. 219; 2001, ch. 14, art. 135(A). | |
Appointment of liquidator
220 (1) When making an order for the liquidation of a corporation or at any time thereafter, the court may appoint any person, including a director, an officer or a shareholder of the corporation or any other body corporate, as liquidator of the corporation. |
Nomination du liquidateur
220 (1) Le tribunal peut, en rendant lordonnance de liquidation ou par la suite, nommer en qualité de liquidateur toute personne et notamment lun des administrateurs, dirigeants ou actionnaires de la société ou une autre personne morale. | |
Vacancy
(2) Where an order for the liquidation of a corporation has been made and the office of liquidator is or becomes vacant, the property of the corporation is under the control of the court until the office of liquidator is filled.
1974-75-76, c. 33, s. 213; 1978-79, c. 9, ss. 1(F), 67. |
Vacance
(2) Les biens de la société sont placés sous la garde du tribunal durant toute vacance du poste de liquidateur survenant après le prononcé de lordonnance de liquidation.
1974-75-76, ch. 33, art. 213; 1978-79, ch. 9, art. 1(F) et 67. | |
Duties of liquidator
221 A liquidator shall
(a) forthwith after appointment give notice thereof to the Director and to each claimant and creditor known to the liquidator;
(b) without delay publish notice by insertion once a week for two consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and take reasonable steps to give notice of the appointment in each province where the corporation carries on business, requiring any person |
Obligations du liquidateur
221 Le liquidateur doit :
a) donner avis, sans délai, de sa nomination au directeur et aux réclamants et créanciers connus de lui;
b) insérer sans délai, une fois par semaine pendant deux semaines consécutives, dans un journal publié ou diffusé au lieu du siège social de la société, tout en prenant des mesures raisonnables pour en faire une certaine publicité dans chaque province où la société exerce ses activités commerciales, un avis obligeant : |
Current to February 11, 2020 |
180 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 221-222 |
Articles 221-222 |
(i) indebted to the corporation, to render an account and pay to the liquidator at the time and place specified any amount owing,
(ii) possessing property of the corporation, to deliver it to the liquidator at the time and place specified, and
(iii) having a claim against the corporation, whether liquidated, unliquidated, future or contingent, to present particulars thereof in writing to the liquidator not later than two months after the first publication of the notice;
(c) take into custody and control the property of the corporation;
(d) open and maintain a trust account for the moneys of the corporation;
(e) keep accounts of the moneys of the corporation received and paid out by the liquidator;
(f) maintain separate lists of the shareholders, creditors and other persons having claims against the corporation;
(g) if at any time the liquidator determines that the corporation is unable to pay or adequately provide for the discharge of its obligations, apply to the court for directions;
(h) deliver to the court and to the Director, at least once in every twelve month period after appointment or more often as the court may require, financial statements of the corporation in the form required by section 155 or in such other form as the liquidator may think proper or as the court may require; and
(i) after the final accounts are approved by the court, distribute any remaining property of the corporation among the shareholders according to their respective rights.
R.S., 1985, c. C-44, s. 221; 2001, c. 14, ss. 109, 135(E); 2018, c. 8, s. 31(E). |
(i) les débiteurs de la société à lui rendre compte et à lui payer leurs dettes, aux date et lieu précisés dans cet avis,
(ii) les personnes en possession des biens de la société à les lui remettre aux date et lieu précisés dans lavis,
(iii) les créanciers de la société à lui fournir par écrit un relevé détaillé de leur créance, quelle soit ou non liquidée, future ou éventuelle, dans les deux mois de la première publication de lavis;
c) prendre sous sa garde et sous son contrôle tous les biens de la société;
d) ouvrir un compte en fiducie pour les fonds de la société;
e) tenir une comptabilité des recettes et déboursés de la société;
f) tenir des listes distinctes des actionnaires, créanciers et autres réclamants;
g) demander des instructions au tribunal après constatation de lincapacité de la société dhonorer ses obligations ou de constituer une provision suffisante à cette fin;
h) remettre, au tribunal ainsi quau directeur, au moins une fois tous les douze mois à compter de sa nomination et chaque fois que le tribunal lordonne, les états financiers de la société en la forme exigée à larticle 155 ou en telle autre forme jugée pertinente par le liquidateur ou exigée par le tribunal;
i) après lapprobation par le tribunal de ses comptes définitifs, répartir le reliquat des biens de la société entre les actionnaires selon leurs droits respectifs.
L.R. (1985), ch. C-44, art. 221; 2001, ch. 14, art. 109 et 135(A); 2018, ch. 8, art. 31(A). | |
Powers of liquidator
222 (1) A liquidator may
(a) retain lawyers, accountants, engineers, appraisers and other professional advisers;
(b) bring, defend or take part in any civil, criminal or administrative action or proceeding in the name and on behalf of the corporation;
(c) carry on the business of the corporation as required for an orderly liquidation; |
Pouvoirs du liquidateur
222 (1) Le liquidateur peut :
a) retenir les services de conseillers professionnels, notamment davocats, de comptables, dingénieurs et destimateurs;
b) ester en justice, lors de toute procédure civile, pénale ou administrative, pour le compte de la société;
c) exercer les activités commerciales de la société dans la mesure nécessaire à la liquidation; |
Current to February 11, 2020 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
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PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 222-223 |
Articles 222-223 |
(d) sell by public auction or private sale any property of the corporation;
(e) do all acts and execute or, in Quebec, sign any documents in the name and on behalf of the corporation;
(f) borrow money on the security of the property of the corporation;
(g) settle or compromise any claims by or against the corporation; and
(h) do all other things necessary for the liquidation of the corporation and distribution of its property. |
d) vendre aux enchères publiques ou de gré à gré tout bien de la société;
e) agir et signer des documents au nom de la société;
f) contracter des emprunts garantis par les biens de la société;
g) transiger sur toutes réclamations mettant en cause la société ou les régler;
h) faire tout ce qui est par ailleurs nécessaire à la liquidation et à la répartition des biens de la société. | |
Due diligence
(2) A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on
(a) financial statements of the corporation represented to the liquidator by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or
(b) a report of a person whose profession lends credibility to a statement made by the professional person. |
Défense de diligence raisonnable
(2) Nest pas engagée la responsabilité du liquidateur qui a agi avec le soin, la diligence et la compétence dont ferait preuve, en pareilles circonstances, une personne prudente, notamment le fait de sappuyer de bonne foi sur :
a) les états financiers de la société qui, daprès lun de ses dirigeants ou daprès le rapport écrit du vérificateur, reflètent équitablement sa situation;
b) les rapports des personnes dont la profession permet daccorder foi à leurs déclarations. | |
Application for examination
(3) If a liquidator has reason to believe that any person has in their possession or under their control, or has concealed, withheld or misappropriated any property of the corporation, the liquidator may apply to the court for an order requiring that person to appear before the court at the time and place designated in the order and to be examined. |
Demande dinterrogatoire
(3) Le liquidateur qui a de bonnes raisons de croire quune personne a en sa possession ou sous son contrôle ou a dissimulé, retenu ou détourné des biens de la société peut demander au tribunal de lobliger, par ordonnance, à comparaître pour interrogatoire aux date, heure et lieu que celle-ci précise. | |
Power of court
(4) If the examination referred to in subsection (3) discloses that a person has concealed, withheld or misappropriated property of the corporation, the court may order that person to restore it or pay compensation to the liquidator.
R.S., 1985, c. C-44, s. 222; 2001, c. 14, ss. 110, 135(E); 2011, c. 21, s. 63(E). |
Pouvoirs du tribunal
(4) Le tribunal peut ordonner à la personne dont linterrogatoire visé au paragraphe (3) révèle quelle a dissimulé, retenu ou détourné des biens de la société de les restituer au liquidateur ou de lui verser une indemnité compensatoire.
L.R. (1985), ch. C-44, art. 222; 2001, ch. 14, art. 110 et 135(A); 2011, ch. 21, art. 63(A). | |
Costs of liquidation
223 (1) A liquidator shall pay the costs of liquidation out of the property of the corporation and shall pay or make adequate provision for all claims against the corporation. |
Frais de liquidation
223 (1) Le liquidateur acquitte les frais de liquidation sur les biens de la société; il acquitte également toutes les dettes de la société ou constitue une provision suffisante à cette fin. |
Current to February 11, 2020 |
182 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Section 223 |
Article 223 |
Final accounts
(2) Within one year after appointment, and after paying or making adequate provision for all claims against the corporation, the liquidator shall apply to the court
(a) for approval of the final accounts and for an order permitting the liquidator to distribute in money or in kind the remaining property of the corporation to its shareholders according to their respective rights; or
(b) for an extension of time, setting out the reasons therefor. |
Comptes définitifs
(2) Dans lannée de sa nomination et après avoir acquitté toutes les dettes de la société ou constitué une provision suffisante à cette fin, le liquidateur demande au tribunal :
a) soit dapprouver ses comptes définitifs et de lautoriser, par ordonnance, à répartir en numéraire ou en nature le reliquat des biens entre les actionnaires selon leurs droits respectifs;
b) soit, avec motifs à lappui, de prolonger son mandat. | |
Shareholder application
(3) If a liquidator fails to make the application required by subsection (2), a shareholder of the corporation may apply to the court for an order for the liquidator to show cause why a final accounting and distribution should not be made. |
Demande des actionnaires
(3) Tout actionnaire peut demander au tribunal dobliger, par ordonnance, le liquidateur qui néglige de présenter la demande exigée par le paragraphe (2) à expliquer pourquoi un compte définitif ne peut être dressé et une répartition effectuée. | |
Publication
(4) A liquidator shall give notice of their intention to make an application under subsection (2) to the Director, to each inspector appointed under section 217, to each shareholder and to any person who provided a security, fidelity bond or fidelity insurance for the liquidation, and shall publish the notice in a newspaper published or distributed in the place where the corporation has its registered office, or as otherwise directed by the court. |
Publication
(4) Le liquidateur doit donner avis de son intention de présenter la demande prévue au paragraphe (2) au directeur, à chaque inspecteur nommé en vertu de larticle 217, à chaque actionnaire et aux personnes ayant fourni une sûreté ou une assurance détournement et vol pour les besoins de la liquidation, et faire insérer cet avis dans un journal publié ou diffusé au lieu du siège social de la société ou le faire connaître par tout autre moyen choisi par le tribunal. | |
Final order
(5) If the court approves the final accounts rendered by a liquidator, the court shall make an order
(a) directing the Director to issue a certificate of dissolution;
(b) directing the custody or disposal of the documents and records of the corporation; and
(c) subject to subsection (6), discharging the liquidator. |
Ordonnance définitive
(5) Le tribunal, sil approuve les comptes définitifs du liquidateur, doit, par ordonnance :
a) demander au directeur de délivrer un certificat de dissolution;
b) donner des instructions quant à la garde des documents et des livres de la société et à lusage qui en sera fait;
c) sous réserve du paragraphe (6), le libérer. | |
Delivery of order
(6) The liquidator shall forthwith send a certified copy of the order referred to in subsection (5) to the Director. |
Copie
(6) Le liquidateur doit, sans délai, envoyer au directeur une copie certifiée de lordonnance visée au paragraphe (5). | |
Certificate of dissolution
(7) On receipt of the order referred to in subsection (5), the Director shall issue a certificate of dissolution in accordance with section 262. |
Certificat de dissolution
(7) Sur réception de lordonnance visée au paragraphe (5), le directeur délivre un certificat de dissolution en conformité avec larticle 262. |
Current to February 11, 2020 |
183 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 223-226 |
Articles 223-226 |
Effect of certificate
(8) The corporation ceases to exist on the date shown in the certificate of dissolution.
R.S., 1985, c. C-44, s. 223; 2001, c. 14, ss. 111(E), 135(E); 2011, c. 21, s. 64. |
Effet du certificat
(8) La société cesse dexister à la date figurant sur le certificat de dissolution.
L.R. (1985), ch. C-44, art. 223; 2001, ch. 14, art. 111(A) et 135(A); 2011, ch. 21, art. 64. | |
Right to distribution in money
224 (1) If in the course of liquidation of a corporation the shareholders resolve or the liquidator proposes to
(a) exchange all or substantially all the property of the corporation for securities of another body corporate that are to be distributed to the shareholders, or
(b) distribute all or part of the property of the corporation to the shareholders in kind,
a shareholder may apply to the court for an order requiring the distribution of the property of the corporation to be in money. |
Droit à la répartition en numéraire
224 (1) Si, au cours de la liquidation, les actionnaires décident, par résolution, ou si le liquidateur propose :
a) soit déchanger la totalité ou la quasi-totalité des biens de la société contre des valeurs mobilières dune autre personne morale à répartir entre les actionnaires;
b) soit de répartir tout ou partie des biens de la société, en nature, entre les actionnaires,
tout actionnaire peut demander au tribunal dimposer, par ordonnance, la répartition en numéraire des biens de la société. | |
Powers of court
(2) On an application under subsection (1), the court may order
(a) all the property of the corporation to be converted into and distributed in money; or
(b) the claims of any shareholder applying under this section to be satisfied by a distribution in money, in which case subsections 190(20) to (22) apply.
1974-75-76, c. 33, s. 217; 1978-79, c. 9, s. 1(F). |
Pouvoirs du tribunal
(2) Sur demande présentée en vertu du paragraphe (1), le tribunal peut ordonner :
a) soit la réalisation de tous les biens de la société et la répartition du produit;
b) soit le règlement en numéraire des créances des actionnaires qui en font la demande en vertu du présent article, auquel cas les paragraphes 190(20) à (22) sappliquent.
1974-75-76, ch. 33, art. 217; 1978-79, ch. 9, art. 1(F). | |
Custody of records
225 (1) A person who has been granted custody of the documents and records of a dissolved corporation remains liable to produce such documents and records for six years following the date of its dissolution or until the expiration of such other shorter period as may be ordered under subsection 223(5). |
Garde des documents
225 (1) La personne qui sest vu confier la garde des documents et livres dune société dissoute peut être tenue de les produire jusquà la date fixée dans lordonnance rendue en vertu du paragraphe 223(5) et, au maximum, dans les six ans suivant la date de la dissolution. | |
Offence
(2) A person who, without reasonable cause, contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.
1974-75-76, c. 33, s. 218; 1978-79, c. 9, s. 1(F). |
Infraction
(2) La personne qui, sans motif raisonnable, contrevient au paragraphe (1) commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines.
1974-75-76, ch. 33, art. 218; 1978-79, ch. 9, art. 1(F). | |
Definition of shareholder
226 (1) In this section, shareholder includes the heirs and personal representatives of a shareholder. |
Définition de actionnaire
226 (1) Au présent article, actionnaire sentend notamment des héritiers et des représentants personnels de lactionnaire. |
Current to February 11, 2020 |
184 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Section 226 |
Article 226 |
Continuation of actions
(2) Notwithstanding the dissolution of a body corporate under this Act,
(a) a civil, criminal or administrative action or proceeding commenced by or against the body corporate before its dissolution may be continued as if the body corporate had not been dissolved;
(b) a civil, criminal or administrative action or proceeding may be brought against the body corporate within two years after its dissolution as if the body corporate had not been dissolved; and
(c) any property that would have been available to satisfy any judgment or order if the body corporate had not been dissolved remains available for such purpose. |
Continuation des actions
(2) Nonobstant la dissolution dune personne morale conformément à la présente loi :
a) les procédures civiles, pénales ou administratives intentées par ou contre elle avant sa dissolution peuvent être poursuivies comme si la dissolution navait pas eu lieu;
b) dans les deux ans suivant la dissolution, des procédures civiles, pénales ou administratives peuvent être intentées contre la personne morale comme si elle navait pas été dissoute;
c) les biens qui auraient servi à satisfaire tout jugement ou ordonnance, à défaut de la dissolution, demeurent disponibles à cette fin. | |
Service
(3) Service of a document on a corporation after its dissolution may be effected by serving the document on a person shown in the last notice filed under section 106 or 113. |
Signification
(3) Après la dissolution, la signification des documents peut se faire à toute personne figurant sur la dernière liste enregistrée conformément aux articles 106 ou 113. | |
Idem
(3.1) Service of a document on a company to which the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applied that has been dissolved by subsection 261(8) of the Canada Business Corporations Act, chapter 33 of the Statutes of Canada, 1974-75-76 and chapter 9 of the Statutes of Canada, 1978-79, may be effected by serving the document on a person shown as a director in the last annual summary filed by the company pursuant to the Canada Corporations Act. |
Idem
(3.1) La signification des documents à une compagnie qui était régie par la Loi sur les corporations canadiennes, chapitre C-32 des Statuts revisés du Canada de 1970, et qui a été dissoute par suite de lapplication du paragraphe 261(8) de la Loi sur les sociétés commerciales canadiennes, chapitre 33 des Statuts du Canada de 1974-75-76 et chapitre 9 des Statuts du Canada de 1978-79, peut se faire à toute personne figurant comme dirigeant dans le dernier sommaire déposé par la compagnie conformément à la Loi sur les corporations canadiennes. | |
Reimbursement
(4) Notwithstanding the dissolution of a body corporate under this Act, a shareholder to whom any of its property has been distributed is liable to any person claiming under subsection (2) to the extent of the amount received by that shareholder on such distribution, and an action to enforce such liability may be brought within two years after the date of the dissolution of the body corporate. |
Remboursement
(4) Nonobstant la dissolution dune personne morale, conformément à la présente loi, les actionnaires entre lesquels sont répartis les biens engagent leur responsabilité, à concurrence de la somme reçue, envers toute personne invoquant le paragraphe (2), toute action en recouvrement pouvant alors être engagée dans les deux ans suivant la dissolution. | |
Representative action
(5) A court may order an action referred to in subsection (4) to be brought against the persons who were shareholders as a class, subject to such conditions as the court thinks fit and, if the plaintiff establishes a claim, the court may refer the proceedings to a referee or other officer of the court who may |
Action en justice collective
(5) Le tribunal peut ordonner que soit intentée, collectivement contre les actionnaires, laction visée au paragraphe (4), sous réserve des conditions quil juge pertinentes, et peut, si le demandeur établit le bien-fondé de sa demande, renvoyer laffaire devant un arbitre ou un autre officier de justice qui a le pouvoir : |
Current to February 11, 2020 |
185 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 226-228 |
Articles 226-228 |
(a) add as a party to the proceedings each person who was a shareholder found by the plaintiff;
(b) determine, subject to subsection (4), the amount that each person who was a shareholder shall contribute towards satisfaction of the plaintiffs claim; and
(c) direct payment of the amounts so determined.
R.S., 1985, c. C-44, s. 226; 1992, c. 1, s. 57; 2001, c. 14, ss. 112, 135(E); 2011, c. 21, s. 65(F). |
a) de joindre comme partie à linstance chaque ancien actionnaire retrouvé par le demandeur;
b) de déterminer, sous réserve du paragraphe (4), la part que chaque ancien actionnaire doit verser pour dédommager le demandeur;
c) dordonner le versement des sommes déterminées.
L.R. (1985), ch. C-44, art. 226; 1992, ch. 1, art. 57; 2001, ch. 14, art. 112 et 135(A); 2011, ch. 21, art. 65(F). | |
Unknown claimants
227 (1) On the dissolution of a body corporate under this Act, the portion of the property distributable to a creditor or shareholder who cannot be found shall be converted into money and paid to the Receiver General. |
Créanciers inconnus
227 (1) La partie des biens à remettre, par suite de la dissolution dune personne morale en vertu de la présente loi, à tout créancier ou actionnaire introuvable doit être réalisée en numéraire et le produit versé au receveur général. | |
Constructive satisfaction
(2) A payment under subsection (1) is deemed to be in satisfaction of a debt or claim of such creditor or shareholder. |
Dédommagement
(2) Le versement prévu au paragraphe (1) est réputé régler le créancier ou dédommager lactionnaire. | |
Recovery
(3) A person who establishes an entitlement to any moneys paid to the Receiver General under this Act shall be paid by the Receiver General an equivalent amount out of the Consolidated Revenue Fund.
R.S., 1985, c. C-44, s. 227; 2001, c. 14, s. 135(E). |
Recouvrement
(3) Le receveur général doit verser, sur le Trésor, une somme égale à celle quil a reçue, à toute personne qui la réclame à bon droit selon la présente loi.
L.R. (1985), ch. C-44, art. 227; 2001, ch. 14, art. 135(A). | |
Vesting in Crown
228 (1) Subject to subsection 226(2) and section 227, property of a body corporate that has not been disposed of at the date of its dissolution under this Act vests in Her Majesty in right of Canada. |
Dévolution à la Couronne
228 (1) Sous réserve du paragraphe 226(2) et de larticle 227, les biens dont il na pas été disposé à la date de la dissolution dune personne morale en vertu de la présente loi sont dévolus à Sa Majesté du chef du Canada. | |
Return of property on revival
(2) If a body corporate is revived as a corporation under section 209, any property, other than money, that vested in Her Majesty pursuant to subsection (1), that has not been disposed of shall be returned to the corporation and there shall be paid to the corporation out of the Consolidated Revenue Fund
(a) an amount equal to any money received by Her Majesty pursuant to subsection (1); and
(b) where property other than money vested in Her Majesty pursuant to subsection (1) and that property has been disposed of, an amount equal to the lesser of
(i) the value of any such property at the date it vested in Her Majesty, and |
Restitution des biens
(2) Les biens dévolus à Sa Majesté conformément au paragraphe (1) et dont il na pas été disposé, à lexclusion des sommes dargent, sont restitués à la personne morale reconstituée en société en vertu de larticle 209; lui sont versées, sur le Trésor :
a) une somme égale à celles qua reçues Sa Majesté conformément au paragraphe (1);
b) en cas de disposition de biens autres quen numéraire dévolus à Sa Majesté conformément au paragraphe (1), une somme égale au moins élevé des montants suivants :
(i) la valeur de ces biens à la date de leur dévolution, |
Current to February 11, 2020 |
186 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XVIII Liquidation and Dissolution |
PARTIE XVIII Liquidation et dissolution | |
Sections 228-229 |
Articles 228-229 |
(ii) the amount realized by Her Majesty from the disposition of that property.
1974-75-76, c. 33, s. 221; 1978-79, c. 9, ss. 1(F), 70. |
(ii) le produit tiré par Sa Majesté de cette disposition.
1974-75-76, ch. 33, art. 221; 1978-79, ch. 9, art. 1(F) et 70. | |
PART XIX |
PARTIE XIX | |
Investigation |
Enquêtes | |
Investigation
229 (1) A security holder or the Director may apply, ex parte or on such notice as the court may require, to a court having jurisdiction in the place where the corporation has its registered office for an order directing an investigation to be made of the corporation and any of its affiliated corporations. |
Enquête
229 (1) Tout détenteur de valeurs mobilières ou le directeur peut demander au tribunal du ressort du siège social de la société, ex parte ou après avoir donné lavis que celui-ci peut exiger, dordonner la tenue dune enquête sur la société et sur toute société du même groupe. | |
Grounds
(2) If, on an application under subsection (1), it appears to the court that
(a) the business of the corporation or any of its affiliates is or has been carried on with intent to defraud any person,
(b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the powers of the directors are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of a security holder,
(c) the corporation or any of its affiliates was formed for a fraudulent or unlawful purpose or is to be dissolved for a fraudulent or unlawful purpose, or
(d) persons concerned with the formation, business or affairs of the corporation or any of its affiliates have in connection therewith acted fraudulently or dishonestly,
the court may order an investigation to be made of the corporation and any of its affiliated corporations. |
Motifs
(2) Le tribunal peut ordonner la tenue de lenquête demandée conformément au paragraphe (1), sil lui paraît établi, selon le cas :
a) que la société ou des sociétés de son groupe exercent ou ont exercé leurs activités commerciales avec une intention de fraude;
b) que la société ou toute autre société de son groupe, soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes, soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs, abuse des droits des détenteurs de valeurs mobilières ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts;
c) que la constitution ou la dissolution soit de la société soit des sociétés de son groupe répond à un but frauduleux ou illégal;
d) que des personnes ont commis des actes frauduleux ou malhonnêtes en participant à la constitution soit de la société soit de sociétés du même groupe, ou dans la conduite de leurs activités commerciales ou de leurs affaires internes. | |
Notice to Director
(3) A security holder who makes an application under subsection (1) shall give the Director reasonable notice thereof and the Director is entitled to appear and be heard in person or by counsel. |
Avis au directeur
(3) Le détenteur de valeurs mobilières qui présente une demande conformément au paragraphe (1) doit en donner, dans un délai raisonnable, avis au directeur; celui-ci peut comparaître en personne ou par ministère davocat. |
Current to February 11, 2020 |
187 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX Investigation |
PARTIE XIX Enquêtes | |
Sections 229-230 |
Articles 229-230 |
No security for costs
(4) An applicant under this section is not required to give security for costs. |
Pas de cautionnement pour frais
(4) La personne qui intente une action en vertu du présent article nest pas tenue de fournir de cautionnement pour les frais. | |
Hearings in camera
(5) An ex parte application under this section shall be heard in camera. |
Audiences à huis clos
(5) La demande ex parte, faite en vertu du présent article, est entendue à huis clos. | |
Consent to publish proceedings required
(6) No person may publish anything relating to ex parte proceedings under this section except with the authorization of the court or the written consent of the corporation being investigated.
R.S., 1985, c. C-44, s. 229; 2001, c. 14, ss. 113(F), 135(E). |
Publication interdite, sauf autorisation préalable
(6) Toute publication, relative aux procédures ex parte intentées en vertu du présent article, est interdite sauf autorisation du tribunal ou consentement écrit de la société faisant lobjet de lenquête.
L.R. (1985), ch. C-44, art. 229; 2001, ch. 14, art. 113(F) et 135(A). | |
Powers of court
230 (1) In connection with an investigation under this Part, the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order to investigate;
(b) an order appointing an inspector, who may be the Director, fixing the remuneration of an inspector, and replacing an inspector;
(c) an order determining the notice to be given to any interested person, or dispensing with notice to any person;
(d) an order authorizing an inspector to enter any premises in which the court is satisfied there might be relevant information, and to examine any thing and make copies of any document or record found on the premises;
(e) an order requiring any person to produce documents or records to the inspector;
(f) an order authorizing an inspector to conduct a hearing, administer oaths, and examine any person on oath, and prescribing rules for the conduct of the hearing;
(g) an order requiring any person to attend a hearing conducted by an inspector and to give evidence on oath;
(h) an order giving directions to an inspector or any interested person on any matter arising in the investigation;
(i) an order requiring an inspector to make an interim or final report to the court; |
Pouvoirs du tribunal
230 (1) Dans le cadre de lenquête prévue à la présente partie, le tribunal peut rendre toute ordonnance quil estime pertinente en vue, notamment :
a) de procéder à lenquête;
b) de nommer un inspecteur, qui peut être le directeur, de fixer sa rémunération et de le remplacer;
c) de décider sil y a lieu de donner avis aux intéressés ou à toute autre personne;
d) dautoriser linspecteur à visiter les lieux où, selon le tribunal, il peut puiser des renseignements pertinents, ainsi quà examiner toute chose et prendre copie de tout document ou livre quil y trouve;
e) de requérir la production à linspecteur de documents ou de livres;
f) dautoriser linspecteur à tenir une audition, à faire prêter serment et à interroger sous serment, ainsi que de préciser les règles régissant laudition;
g) de citer toute personne à laudition tenue par linspecteur, pour y déposer sous serment;
h) de donner des instructions à linspecteur ou à tout intéressé sur toute question relevant de lenquête;
i) de demander à linspecteur de faire au tribunal un rapport provisoire ou définitif;
j) de statuer sur lopportunité de la publication du rapport de linspecteur et, dans laffirmative, de demander au directeur de le publier intégralement ou en partie ou den envoyer copie à toute personne désignée par le tribunal; |
Current to February 11, 2020 |
188 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX Investigation |
PARTIE XIX Enquêtes | |
Sections 230-233 |
Articles 230-233 |
(j) an order determining whether a report of an inspector should be published and, if so, ordering the Director to publish the report in whole or in part or to send copies to any person the court designates;
(k) an order requiring an inspector to discontinue an investigation; and
(l) an order requiring the corporation to pay the costs of the investigation. |
k) darrêter lenquête;
l) denjoindre à la société de payer les frais de lenquête. | |
Copy of report
(2) An inspector shall send to the Director a copy of every report made by the inspector under this Part.
1974-75-76, c. 33, s. 223; 1978-79, c. 9, ss. 1(F), 72. |
Copie du rapport
(2) Linspecteur doit envoyer au directeur une copie de tout rapport quil établit en vertu de la présente partie.
1974-75-76, ch. 33, art. 223; 1978-79, ch. 9, art. 1(F) et 72. | |
Power of inspector
231 (1) An inspector under this Part has the powers set out in the order appointing him. |
Pouvoirs de linspecteur
231 (1) Linspecteur visé par la présente partie a les pouvoirs précisés dans son ordonnance de nomination. | |
Exchange of information
(2) In addition to the powers set out in the order appointing him, an inspector appointed to investigate a corporation may furnish to, or exchange information and otherwise cooperate with, any public official in Canada or elsewhere who is authorized to exercise investigatory powers and who is investigating, in respect of the corporation, any allegation of improper conduct that is the same as or similar to the conduct described in subsection 229(2). |
Échange de renseignements
(2) Outre les pouvoirs précisés dans son ordonnance de nomination, linspecteur nommé pour enquêter sur une société peut fournir aux fonctionnaires canadiens ou étrangers ou échanger des renseignements et collaborer de toute autre manière avec eux, sils sont investis de pouvoirs denquête et quils mènent, sur la société, une enquête à propos de toute allégation faisant état dune conduite répréhensible analogue à celles visées au paragraphe 229(2). | |
Court order
(3) An inspector shall on request produce to an interested person a copy of any order made under subsection 230(1).
1974-75-76, c. 33, s. 224; 1978-79, c. 9, ss. 1(F), 73. |
Ordonnance du tribunal
(3) Linspecteur doit, sur demande, remettre à tout intéressé copie de toute ordonnance rendue en vertu du paragraphe 230(1).
1974-75-76, ch. 33, art. 224; 1978-79, ch. 9, art. 1(F) et 73. | |
Hearing in camera
232 (1) Any interested person may apply to the court for an order that a hearing conducted by an inspector under this Part be heard in camera and for directions on any matter arising in the investigation. |
Audition à huis clos
232 (1) Tout intéressé peut demander au tribunal dordonner la tenue à huis clos de laudition prévue à la présente partie, ainsi que des instructions sur toute question relevant de lenquête. | |
Right to counsel
(2) A person whose conduct is being investigated or who is being examined at a hearing conducted by an inspector under this Part has a right to be represented by counsel.
1974-75-76, c. 33, s. 225; 1978-79, c. 9, s. 1(F). |
Représentation
(2) La personne dont la conduite fait lobjet de lenquête ou qui est interrogée lors de laudition prévue à la présente partie peut se faire représenter par avocat.
1974-75-76, ch. 33, art. 225; 1978-79, ch. 9, art. 1(F). | |
Criminating statements
233 No person is excused from attending and giving evidence and producing documents and records to an inspector under this Part by reason only that the evidence tends to criminate that person or subject that person to |
Incrimination
233 Toute personne, tenue par la présente partie de se présenter, de témoigner devant un inspecteur ou de lui remettre des documents et des livres ne peut en être dispensée pour le seul motif que son témoignage peut |
Current to February 11, 2020 |
189 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX Investigation |
PARTIE XIX Enquêtes | |
Sections 233-235 |
Articles 233-235 |
any proceeding or penalty, but no such evidence shall be used or is receivable against that person in any proceeding thereafter instituted against that person under an Act of Parliament, other than a prosecution under section 132 of the Criminal Code for perjury in giving the evidence or a prosecution under section 136 of the Criminal Code in respect of the evidence.
R.S., 1985, c. C-44, s. 233; R.S., 1985, c. 27 (1st Supp.), s. 187. |
entraîner son inculpation ou la rendre passible de poursuites ou de sanctions; cependant, ce témoignage ne peut être invoqué et est irrecevable contre elle dans les poursuites qui lui sont intentées par la suite en vertu dune loi fédérale, à lexception de celles intentées en application de larticle 132 du Code criminel pour parjure dans le cadre de ce témoignage ou de larticle 136 du Code criminel à légard de ce témoignage.
L.R. (1985), ch. C-44, art. 233; L.R. (1985), ch. 27 (1er suppl.), art. 187. | |
Absolute privilege (defamation)
234 Any oral or written statement or report made by an inspector or any other person in an investigation under this Part has absolute privilege.
1974-75-76, c. 33, s. 227; 1978-79, c. 9, s. 1(F). |
Immunité absolue (diffamation)
234 Les personnes, notamment les inspecteurs, qui font des déclarations orales ou écrites et des rapports au cours de lenquête prévue par la présente partie jouissent dune immunité absolue.
1974-75-76, ch. 33, art. 227; 1978-79, ch. 9, art. 1(F). | |
Information respecting ownership and control
235 (1) If the Director is satisfied that, for the purposes of Part XI, XIII or XVII, or for the purposes of enforcing any regulation made under section 174, there is reason to inquire into the ownership or control of a security of a corporation or any of its affiliates, the Director may require any person that the Director reasonably believes has or has had an interest or right in the security or acts or has acted on behalf of a person with such an interest or right to report to him or her or to any person the Director designates
(a) information that the person has or can reasonably be expected to obtain as to present and past interests or rights in the security; and
(b) the names and addresses of the persons with such an interest or right and of any person who acts or has acted in relation to the security on their behalf. |
Renseignements concernant la propriété et le contrôle des valeurs mobilières
235 (1) Sil est convaincu, pour lapplication des parties XI, XIII ou XVII ou de tout règlement dapplication de larticle 174, de la nécessité denquêter sur la propriété ou le contrôle de valeurs mobilières dune société ou de sociétés de son groupe, le directeur peut demander à toute personne dont il a de bonnes raisons de croire quelle détient ou a détenu un droit ou intérêt sur ces valeurs, ou agit ou a agi pour le compte de telle personne de lui fournir ou de fournir à la personne quil désigne:
a) les renseignements quelle est normalement susceptible dobtenir sur les droits ou intérêts présents et passés détenus sur ces valeurs;
b) les nom et adresse des personnes détenant ou ayant détenu de tels droits ou intérêts et de celles qui agissent ou ont agi pour le compte de telles personnes. | |
Presumption
(2) For the purposes of subsection (1), a person is deemed to have an interest or right in a security if
(a) the person has a right to vote or to acquire or dispose of the security or any interest or right in it;
(b) the persons consent is necessary for the exercise of the rights or privileges of any other person with an interest or right in the security; or
(c) any other person with an interest or right in the security can be required or is accustomed to exercise rights or privileges attached to the security in accordance with the persons instructions. |
Présomption
(2) Pour lapplication du paragraphe (1), est réputée détenir un droit ou intérêt sur une valeur mobilière la personne, selon le cas :
a) qui a droit de vote ou le droit de négocier cette valeur ou qui a un droit ou intérêt sur celle-ci;
b) dont le consentement est nécessaire à lexercice des droits ou privilèges de toute autre personne détenant un droit ou intérêt sur cette valeur;
c) qui donne des instructions selon lesquelles dautres personnes détenant un droit ou intérêt sur cette valeur peuvent être obligées ou ont lhabitude dexercer les droits ou privilèges dont elle est assortie. |
Current to February 11, 2020 |
190 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX Investigation |
PARTIE XIX Enquêtes | |
Sections 235-237 |
Articles 235-237 |
Publication
(3) The Director shall publish in a publication generally available to the public the particulars of information obtained by the Director under this section, if the particulars
(a) are required to be disclosed by this Act or the regulations; and
(b) have not previously been so disclosed. |
Publication
(3) Le directeur publie dans une publication destinée au grand public les renseignements quil a obtenus en vertu du présent article lorsque les conditions ci-après sont réunies :
a) la présente loi ou les règlements lexigent;
b) ils ne lont pas été précédemment. | |
Offence
(4) A person who fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. |
Infraction
(4) La personne qui contrevient au présent article commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines. | |
Officers, etc., of bodies corporate
(5) Where a body corporate commits an offence under subsection (4), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted.
R.S., 1985, c. C-44, s. 235; 2001, c. 14, ss. 114, 135(E); 2011, c. 21, s. 66; 2018, c. 8, s. 33(F). |
Personnes morales et leurs dirigeants, etc.
(5) En cas de perpétration par une personne morale dune infraction visée au paragraphe (4), ceux de ses administrateurs ou dirigeants qui y ont sciemment donné leur autorisation, leur permission ou leur acquiescement sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines, que la personne morale ait été ou non poursuivie ou déclarée coupable.
L.R. (1985), ch. C-44, art. 235; 2001, ch. 14, art. 114 et 135(A); 2011, ch. 21, art. 66; 2018, ch. 8, art. 33(F). | |
Solicitor-client privilege or professional secrecy
236 Nothing in this Part shall be construed as affecting solicitor-client privilege or, in Quebec, the professional secrecy of advocates and notaries.
R.S., 1985, c. C-44, s. 236; 2001, c. 14, s. 135(E); 2011, c. 21, s. 67. |
Secret professionnel
236 La présente partie na pas pour effet de porter atteinte au secret professionnel de lavocat ou du notaire.
L.R. (1985), ch. C-44, art. 236; 2001, ch. 14, art. 135(A); 2011, ch. 21, art. 67. | |
Inquiries
237 The Director may make inquiries of any person relating to compliance with this Act.
1974-75-76, c. 33, s. 230; 1978-79, c. 9, s. 1(F). |
Enquêtes
237 Le directeur peut, à légard de toute personne, procéder à toute enquête dans le cadre de lapplication de la présente loi.
1974-75-76, ch. 33, art. 230; 1978-79, ch. 9, art. 1(F). |
Current to February 11, 2020 |
191 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX.1 Apportioning Award of Damages |
PARTIE XIX.1 Répartition de lindemnité | |
Section 237.1 |
Article 237.1 |
PART XIX.1 | PARTIE XIX.1 | |
Apportioning Award of Damages | Répartition de lindemnité | |
Interpretation and Application | Définitions et champ dapplication | |
Definitions
237.1 The definitions in this section apply in this Part.
financial interest, with respect to a corporation, includes
(a) a security;
(b) a title to or an interest in capital, assets, property, profits, earnings or royalties;
(c) an option or other interest in, or a subscription to, a security;
(d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets;
(e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the corporation;
(f) a profit-sharing agreement or certificate;
(g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty;
(h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province;
(i) an investment contract; and
(j) anything that is prescribed to be a financial interest. (intérêt financier)
financial loss means a financial loss arising out of an error, omission or misstatement in financial information concerning a corporation that is required under this Act or the regulations. (perte financière)
third party includes any subsequent party that is joined in proceedings before a court. (Version anglaise seulement)
2001, c. 14, s. 115. |
Définitions
237.1 Les définitions qui suivent sappliquent à la présente partie.
intérêt financier Relativement à une société, sentend notamment :
a) de valeurs mobilières;
b) de titres sur un capital, un actif, des biens, des profits, des gains ou des redevances, ou dintérêts dans ceux-ci;
c) dune option sur une valeur mobilière, dune souscription dune valeur mobilière ou dun autre intérêt dans une valeur mobilière;
d) dune convention en vertu de laquelle lintérêt de lacheteur est évalué, aux fins de conversion ou de rachat, en fonction de la valeur dun intérêt proportionnel dans un portefeuille déterminé déléments dactif;
e) dune convention qui prévoit que largent reçu sera remboursé ou considéré comme une souscription dactions, de parts ou dintérêts au choix de toute personne ou de la société;
f) dune convention ou dun certificat de participation aux bénéfices;
g) dun bail, dune concession ou de redevances portant sur du minerai, du pétrole ou du gaz naturel ou dun intérêt dans ceux-ci;
h) dun contrat assurant le paiement dun revenu ou dune rente nayant pas été établi par une société dassurances régie par une loi fédérale ou provinciale;
i) dun contrat dinvestissement;
j) de tout ce qui peut être prévu comme tel par règlement. (financial interest)
perte financière Perte financière découlant dune omission, inexactitude ou erreur dans des renseignements financiers exigés relativement à une |
Current to February 11, 2020 |
192 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX.1 Apportioning Award of Damages |
PARTIE XIX.1 Répartition de lindemnité | |
Interpretation and Application |
Définitions et champ dapplication | |
Sections 237.1-237.3 |
Articles 237.1-237.3 |
degree société en vertu de la présente loi ou de ses règlements. (financial loss)
2001, ch. 14, art. 115. | ||
Application of Part
237.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss. |
Champ dapplication
237.2 (1) La présente partie régit la répartition dune indemnité accordée à un demandeur pour une perte financière après quun tribunal a déclaré plus dun défendeur ou mis en cause responsable de celle-ci. | |
Non-application of Part
(2) This Part does not apply to an award of damages to any of the following plaintiffs:
(a) Her Majesty in right of Canada or of a province;
(b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments;
(c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or
(d) an unsecured creditor in respect of goods or services that the creditor provided to a corporation.
2001, c. 14, s. 115. |
Non-application
(2) La présente partie ne sapplique pas dans le cas où lindemnité est accordée aux demandeurs suivants :
a) Sa Majesté du chef du Canada ou dune province;
b) un de ses mandataires ou une société dÉtat ou un organisme gouvernemental, fédéral ou provincial, sauf si une partie importante de leurs activités a trait au commerce des valeurs mobilières ou autres instruments financiers, notamment les placements portant sur ceux-ci;
c) une fondation privée ou publique ou une uvre de bienfaisance au sens du paragraphe 149.1(1) de la Loi de limpôt sur le revenu;
d) un créancier non garanti dans le cadre de la fourniture de biens ou de services à une société.
2001, ch. 14, art. 115. | |
Apportionment of Damages | Répartition de lindemnité | |
Degree of responsibility
237.3 (1) Subject to this section and sections 237.4 to 237.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss. |
Degré de responsabilité
237.3 (1) Sous réserve des autres dispositions du présent article et des articles 237.4 à 237.6, les défendeurs ou mis en cause déclarés responsables dune perte financière ne sont tenus dindemniser le demandeur quà concurrence de la somme correspondant à leur degré de responsabilité. | |
Uncollectable amounts
(2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable. |
Nouvelle répartition
(2) Sil savère impossible de recouvrer une partie de lindemnité due par un défendeur ou mis en cause responsable, le tribunal peut, sur requête faite par le demandeur dans lannée suivant la date où le jugement devient exécutoire, répartir celle-ci entre les autres défendeurs ou mis en cause responsables. | |
Reallocation
(3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the |
Calcul
(3) La somme additionnelle pouvant être attribuée à chacun des autres défendeurs ou mis en cause responsables en vertu du paragraphe (2) est égale au produit du pourcentage correspondant au degré de |
Current to February 11, 2020 |
193 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX.1 Apportioning Award of Damages |
PARTIE XIX.1 Répartition de lindemnité | |
Apportionment of Damages |
Répartition de lindemnité | |
Sections 237.3-237.5 |
Articles 237.3-237.5 |
of responsibility of that defendant or third party for the total financial loss. |
responsabilité de chacun par le montant de lindemnité non recouvrable. | |
Maximum amount
(4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.
2001, c. 14, s. 115. |
Plafond
(4) La somme calculée en vertu du paragraphe (3) ne peut, relativement à tout défendeur ou mis en cause responsable, être supérieure à cinquante pour cent de la somme initiale pour laquelle il a été tenu responsable.
2001, ch. 14, art. 115. | |
Exception fraud
237.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly. |
Fraude
237.4 (1) La totalité du montant de lindemnité accordée par le tribunal peut être recouvrée auprès de tout défendeur ou mis en cause déclaré responsable sil est établi que celui-ci sest livré à des actes frauduleux ou malhonnêtes relativement à la perte financière en cause. | |
Contribution
(2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss.
2001, c. 14, s. 115. |
Réclamation
(2) Le défendeur ou mis en cause visé au paragraphe (1) peut réclamer à chacun des autres défendeurs ou mis en cause déclarés responsables sa part de lindemnité.
2001, ch. 14, art. 115. | |
Joint and Several, or Solidary, Liability | Responsabilité solidaire | |
Individual or personal body corporate
237.5 (1) Defendants and third parties referred to in subsection 237.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who
(a) had a financial interest in a corporation on the day that an error, omission or misstatement in financial information concerning the corporation occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and
(b) has established that the value of the plaintiffs total financial interest in the corporation was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph (a). |
Particulier ou personne morale privée
237.5 (1) Les défendeurs et mis en cause visés au paragraphe 237.2(1) sont solidairement responsables de lindemnité accordée au demandeur dans les cas où ce dernier est un particulier ou une personne morale privée qui :
a) dune part, avait un intérêt financier dans la société à la date de lomission, de linexactitude ou de lerreur dans les renseignements financiers concernant la société, ou a acquis un tel intérêt financier entre cette date et celle que le tribunal détermine comme étant celle où lomission, linexactitude ou lerreur a été divulguée;
b) dautre part, a établi que la valeur du total de ses intérêts financiers dans la société était, à lheure de fermeture des bureaux à la date applicable, inférieure ou égale à la somme réglementaire. | |
Exception
(1.1) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator, receiver or sequestrator of a body corporate. |
Exceptions
(1.1) Le paragraphe (1) ne sapplique pas dans les cas où le demandeur agit à titre dassocié dune société de personnes ou autre association ou à titre de syndic de faillite, de liquidateur ou de séquestre dune personne morale. |
Current to February 11, 2020 |
194 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX.1 Apportioning Award of Damages |
PARTIE XIX.1 Répartition de lindemnité | |
Joint and Several, or Solidary, Liability |
Responsabilité solidaire | |
Sections 237.5-237.7 |
Articles 237.5-237.7 |
Interpretation
(2) For the purposes of this section,
(a) a personal body corporate is a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual, or by a group of individuals who are connected by marriage, common-law partnership or any legal parent-child relationship or are connected indirectly by a combination of those relationships, whether or not the individuals through whom they are connected are members of the group; and
(b) a common-law partnership is a relationship between two persons who are cohabiting with each other in a conjugal relationship and have done so for a period of at least one year.
2001, c. 14, s. 115; 2005, c. 33, s. 5; 2011, c. 21, s. 68(E). |
Définitions
(2) Pour lapplication du présent article :
a) une personne morale privée est une personne morale qui ne se livre activement à aucune activité financière, commerciale ni industrielle et qui est contrôlée par un particulier ou un groupe de particuliers unis par les liens du mariage, dune union de fait ou de la filiation, ou indirectement par une combinaison de ces liens, même si cest par lentremise de personnes étrangères au groupe;
b) une union de fait est la relation qui existe entre deux personnes qui vivent ensemble dans une relation conjugale depuis au moins un an.
2001, ch. 14, art. 115; 2005, ch. 33, art. 5; 2011, ch. 21, art. 68(A). | |
Equitable grounds
237.6 (1) If the value of the plaintiffs total financial interest referred to in subsection 237.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so. |
Tribunal
237.6 (1) Si la valeur du total des intérêts financiers visés au paragraphe 237.5(1) est supérieure à la somme réglementaire, le tribunal peut néanmoins déclarer les défendeurs et mis en cause solidairement responsables sil est convaincu quil est juste et raisonnable de procéder ainsi. | |
Factors
(2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable. |
Facteurs
(2) Le gouverneur en conseil peut prévoir des facteurs dont le tribunal tient compte dans sa décision. | |
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
2001, c. 14, s. 115. |
Loi sur les textes réglementaires
(3) La Loi sur les textes réglementaires ne sapplique pas aux facteurs visés au paragraphe (2), ceux-ci sont toutefois publiés dans la partie I de la Gazette du Canada.
2001, ch. 14, art. 115. | |
Value of security
237.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 237.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3),
(a) the closing price of that class of security;
(b) if no closing price is given, the average of the highest and lowest prices of that class of security; or
(c) if the security was not traded, the average of the bid and ask prices of that class of security. |
Valeur mobilière
237.7 (1) Lorsquil est nécessaire, en vue détablir la valeur visée au paragraphe 237.5(1), de déterminer la valeur dune valeur mobilière négociée sur un marché organisé, celle-ci correspond, à la date applicable visée au paragraphe (3) :
a) soit au cours de clôture de la catégorie de la valeur mobilière;
b) soit, à défaut dun tel cours, à la moyenne du cours le plus haut et du cours le plus bas; |
Current to February 11, 2020 |
195 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XIX.1 Apportioning Award of Damages |
PARTIE XIX.1 Répartition de lindemnité | |
Joint and Several, or Solidary, Liability |
Responsabilité solidaire | |
Sections 237.7-237.9 |
Articles 237.7-237.9 |
c) soit, dans les cas où il ny a pas eu de négociation, à la moyenne du cours acheteur et du cours vendeur de la catégorie de la valeur mobilière. | ||
Court may adjust value
(2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so. |
Circonstances exceptionnelles
(2) Le tribunal peut, lorsquil lestime raisonnable, rajuster la valeur déterminée en vertu du paragraphe (1). | |
Valuation day
(3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired. |
Date
(3) La valeur de la valeur mobilière visée au paragraphe (1) est déterminée à la date de lomission, de linexactitude ou de lerreur; dans le cas dune valeur mobilière acquise entre cette date et celle que le tribunal détermine comme étant celle où lomission, linexactitude ou lerreur a été divulguée, elle est déterminée à la date de lacquisition. | |
Definition of organized market
(4) In this section, organized market means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.
2001, c. 14, s. 115; 2018, c. 8, s. 34(F). |
Définition de marché organisé
(4) Pour lapplication du présent article, marché organisé sentend dune bourse reconnue à laquelle est cotée la catégorie de valeurs mobilières ou dun marché qui publie régulièrement le cours de cette catégorie dans une publication destinée au grand public.
2001, ch. 14, art. 115; 2018, ch. 8, art. 34(F). | |
Court determines value
237.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market. |
Discrétion du tribunal
237.8 (1) Le tribunal détermine la valeur de tout ou partie dun intérêt financier qui est assujetti à des restrictions concernant la revente ou pour lequel il nexiste aucun marché organisé. | |
Factors
(2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1). |
Facteurs
(2) Le gouverneur en conseil peut prévoir des facteurs dont le tribunal peut tenir compte pour déterminer la valeur visée au paragraphe (1). | |
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
2001, c. 14, s. 115. |
Loi sur les textes réglementaires
(3) La Loi sur les textes réglementaires ne sapplique pas aux facteurs visés au paragraphe (2), ceux-ci sont toutefois publiés dans la partie I de la Gazette du Canada.
2001, ch. 14, art. 115. | |
Application to determine value
237.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiffs financial interest for the purpose of subsection 237.5(1).
2001, c. 14, s. 115. |
Requête
237.9 Pour lapplication du paragraphe 237.5(1), le demandeur peut par requête, avant dengager des procédures ou à tout moment au cours de celles-ci, demander au tribunal dévaluer la valeur de ses intérêts financiers.
2001, ch. 14, art. 115. |
Current to February 11, 2020 |
196 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 238-239 |
Articles 238-239 |
PART XX
Remedies, Offences and Punishment |
PARTIE XX
Recours, infractions et peines | |
Definitions
238 In this Part,
action means an action under this Act; (action)
complainant means
(a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates,
(b) a director or an officer or a former director or officer of a corporation or any of its affiliates,
(c) the Director, or
(d) any other person who, in the discretion of a court,is a proper person to make an application under this Part. (plaignant)
1974-75-76, c. 33, s. 231; 1978-79, c. 9, s. 1(F). |
Définitions
238 Les définitions qui suivent sappliquent à la présente partie.
action Action intentée en vertu de la présente loi. (action)
plaignant
a) Le détenteur inscrit ou le véritable propriétaire, ancien ou actuel, de valeurs mobilières dune société ou de personnes morales du même groupe;
b) tout administrateur ou dirigeant, ancien ou actuel, dune société ou de personnes morales du même groupe;
c) le directeur;
d) toute autre personne qui, daprès un tribunal, a qualité pour présenter les demandes visées à la présente partie. (complainant)
1974-75-76, ch. 33, art. 231; 1978-79, ch. 9, art. 1(F). | |
Commencing derivative action
239 (1) Subject to subsection (2), a complainant may apply to a court for leave to bring an action in the name and on behalf of a corporation or any of its subsidiaries, or intervene in an action to which any such body corporate is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the body corporate. |
Recours similaire à laction oblique
239 (1) Sous réserve du paragraphe (2), le plaignant peut demander au tribunal lautorisation soit dintenter une action au nom et pour le compte dune société ou de lune de ses filiales, soit dintervenir dans une action à laquelle est partie une telle personne morale, afin dy mettre fin, de la poursuivre ou dy présenter une défense pour le compte de cette personne morale. | |
Conditions precedent
(2) No action may be brought and no intervention in an action may be made under subsection (1) unless the court is satisfied that
(a) the complainant has given notice to the directors of the corporation or its subsidiary of the complainants intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court, if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action;
(b) the complainant is acting in good faith; and |
Conditions préalables
(2) Laction ou lintervention visées au paragraphe (1) ne sont recevables que si le tribunal est convaincu à la fois :
a) que le plaignant a donné avis de son intention de présenter la demande, dans les quatorze jours avant la présentation ou dans le délai que le tribunal estime indiqué, aux administrateurs de la société ou de sa filiale au cas où ils nont pas intenté laction, ny ont pas mis fin ou nont pas agi avec diligence au cours des procédures;
b) que le plaignant agit de bonne foi; |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 239-241 |
Articles 239-241 |
(c) it appears to be in the interests of the corporation or its subsidiary that the action be brought, prosecuted, defended or discontinued.
R.S., 1985, c. C-44, s. 239; 2001, c. 14, s. 116. |
c) quil semble être de lintérêt de la société ou de sa filiale dintenter laction, de la poursuivre, de présenter une défense ou dy mettre fin.
L.R. (1985), ch. C-44, art. 239; 2001, ch. 14, art. 116. | |
Powers of court
240 In connection with an action brought or intervened in under section 239, the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order authorizing the complainant or any other person to control the conduct of the action;
(b) an order giving directions for the conduct of the action;
(c) an order directing that any amount adjudged payable by a defendant in the action shall be paid, in whole or in part, directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary; and
(d) an order requiring the corporation or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action.
1974-75-76, c. 33, s. 233; 1978-79, c. 9, s. 1(F). |
Pouvoirs du tribunal
240 Le tribunal peut, suite aux actions ou interventions visées à larticle 239, rendre toute ordonnance quil estime pertinente et, notamment :
a) autoriser le plaignant ou toute autre personne à assurer la conduite de laction;
b) donner des instructions sur la conduite de laction;
c) faire payer directement aux anciens ou actuels détenteurs de valeurs mobilières, et non à la société ou sa filiale, les sommes mises à la charge dun défendeur;
d) mettre à la charge de la société ou de sa filiale les honoraires légaux raisonnables supportés par le plaignant.
1974-75-76, ch. 33, art. 233; 1978-79, ch. 9, art. 1(F). | |
Application to court re oppression
241 (1) A complainant may apply to a court for an order under this section. |
Demande en cas dabus
241 (1) Tout plaignant peut demander au tribunal de rendre les ordonnances visées au présent article. | |
Grounds
(2) If, on an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates
(a) any act or omission of the corporation or any of its affiliates effects a result,
(b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or
(c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner
that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of. |
Motifs
(2) Le tribunal saisi dune demande visée au paragraphe (1) peut, par ordonnance, redresser la situation provoquée par la société ou lune des personnes morales de son groupe qui, à son avis, abuse des droits des détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants, ou, se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :
a) soit en raison de son comportement;
b) soit par la façon dont elle conduit ses activités commerciales ou ses affaires internes;
c) soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs. | |
Powers of court
(3) In connection with an application under this section, the court may make any interim or final order it thinks fit |
Pouvoirs du tribunal
(3) Le tribunal peut, en donnant suite aux demandes visées au présent article, rendre les ordonnances |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Section 241 |
Article 241 |
including, without limiting the generality of the foregoing,
(a) an order restraining the conduct complained of;
(b) an order appointing a receiver or receiver-manager;
(c) an order to regulate a corporations affairs by amending the articles or by-laws or creating or amending a unanimous shareholder agreement;
(d) an order directing an issue or exchange of securities;
(e) an order appointing directors in place of or in addition to all or any of the directors then in office;
(f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder;
(g) an order directing a corporation, subject to subsection (6), or any other person, to pay a security holder any part of the monies that the security holder paid for securities;
(h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract;
(i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in the form required by section 155 or an accounting in such other form as the court may determine;
(j) an order compensating an aggrieved person;
(k) an order directing rectification of the registers or other records of a corporation under section 243;
(l) an order liquidating and dissolving the corporation;
(m) an order directing an investigation under Part XIX to be made; and
(n) an order requiring the trial of any issue. |
provisoires ou définitives quil estime pertinentes pour, notamment :
a) empêcher le comportement contesté;
b) nommer un séquestre ou un séquestre-gérant;
c) réglementer les affaires internes de la société en modifiant les statuts ou les règlements administratifs ou en établissant ou en modifiant une convention unanime des actionnaires;
d) prescrire lémission ou léchange de valeurs mobilières;
e) faire des nominations au conseil dadministration, soit pour remplacer tous les administrateurs en fonctions ou certains dentre eux, soit pour en augmenter le nombre;
f) enjoindre à la société, sous réserve du paragraphe (6), ou à toute autre personne, dacheter des valeurs mobilières dun détenteur;
g) enjoindre à la société, sous réserve du paragraphe (6), ou à toute autre personne, de rembourser aux détenteurs une partie des fonds quils ont versés pour leurs valeurs mobilières;
h) modifier les clauses dune opération ou dun contrat auxquels la société est partie ou de les résilier, avec indemnisation de la société ou des autres parties;
i) enjoindre à la société de lui fournir, ainsi quà tout intéressé, dans le délai prescrit, ses états financiers en la forme exigée à larticle 155, ou de rendre compte en telle autre forme quil peut fixer;
j) indemniser les personnes qui ont subi un préjudice;
k) prescrire la rectification des registres ou autres livres de la société, conformément à larticle 243;
l) prononcer la liquidation et la dissolution de la société;
m) prescrire la tenue dune enquête conformément à la partie XIX;
n) soumettre en justice toute question litigieuse. | |
Duty of directors
(4) If an order made under this section directs amendment of the articles or by-laws of a corporation,
(a) the directors shall forthwith comply with subsection 191(4); and |
Devoir des administrateurs
(4) Dans les cas où lordonnance rendue en vertu du présent article ordonne des modifications aux statuts ou aux règlements administratifs de la société : |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
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PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 241-242 |
Articles 241-242 |
(b) no other amendment to the articles or by-laws shall be made without the consent of the court, until a court otherwise orders. |
a) les administrateurs doivent se conformer sans délai au paragraphe 191(4);
b) toute autre modification des statuts ou des règlements administratifs ne peut se faire quavec lautorisation du tribunal, sous réserve de toute autre décision judiciaire. | |
Exclusion
(5) A shareholder is not entitled to dissent under section 190 if an amendment to the articles is effected under this section. |
Exclusion
(5) Les actionnaires ne peuvent, à loccasion dune modification des statuts faite conformément au présent article, faire valoir leur dissidence en vertu de larticle 190. | |
Limitation
(6) A corporation shall not make a payment to a shareholder under paragraph (3)(f) or (g) if there are reasonable grounds for believing that
(a) the corporation is or would after that payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporations assets would thereby be less than the aggregate of its liabilities. |
Limitation
(6) La société ne peut effectuer aucun paiement à un actionnaire en vertu des alinéas (3)f) ou g) sil existe des motifs raisonnables de croire que :
a) ou bien elle ne peut, ou ne pourrait de ce fait, acquitter son passif à échéance;
b) ou bien la valeur de réalisation de son actif serait, de ce fait, inférieure à son passif. | |
Alternative order
(7) An applicant under this section may apply in the alternative for an order under section 214.
R.S., 1985, c. C-44, s. 241; 2001, c. 14, ss. 117(F), 135(E). |
Choix
(7) Le plaignant, agissant en vertu du présent article, peut, à son choix, demander au tribunal de rendre lordonnance prévue à larticle 214.
L.R. (1985), ch. C-44, art. 241; 2001, ch. 14, art. 117(F) et 135(A). | |
Evidence of shareholder approval not decisive
242 (1) An application made or an action brought or intervened in under this Part shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the corporation or its subsidiary has been or may be approved by the shareholders of such body corporate, but evidence of approval by the shareholders may be taken into account by the court in making an order under section 214, 240 or 241. |
Preuve de lapprobation des actionnaires non décisive
242 (1) Les demandes, actions ou interventions visées à la présente partie ne peuvent être suspendues ni rejetées pour le seul motif quil est prouvé que les actionnaires ont approuvé, ou peuvent approuver, la prétendue inexécution dobligations envers la société ou sa filiale; toutefois, le tribunal peut tenir compte de cette preuve en rendant les ordonnances prévues aux articles 214, 240 ou 241. | |
Court approval to discontinue
(2) An application made or an action brought or intervened in under this Part shall not be stayed, discontinued, settled or dismissed for want of prosecution or, in Quebec, failure to respect the agreement between the parties as to the conduct of the proceeding without the approval of the court given on any terms that the court thinks fit and, if the court determines that the interests of any complainant may be substantially affected by such stay, discontinuance, settlement, dismissal or failure, the court may order any party to the application or action to give notice to the complainant. |
Approbation de labandon des poursuites
(2) La suspension, labandon, le règlement ou le rejet des demandes, actions ou interventions visées à la présente partie pour cause de non-respect de lentente sur le déroulement de linstance ou, ailleurs quau Québec, de défaut de poursuite est subordonné à leur approbation par le tribunal selon les modalités quil estime pertinentes; il peut également ordonner à toute partie den donner avis aux plaignants sil conclut que leurs intérêts peuvent être sérieusement atteints. |
Current to February 11, 2020 |
200 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 242-243 |
Articles 242-243 |
No security for costs
(3) A complainant is not required to give security for costs in any application made or action brought or intervened in under this Part. |
Absence de cautionnement
(3) Les plaignants ne sont pas tenus de fournir de cautionnement pour les frais des demandes, actions ou interventions visées à la présente partie. | |
Interim costs
(4) In an application made or an action brought or intervened in under this Part, the court may at any time order the corporation or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable for such interim costs on final disposition of the application or action.
R.S., 1985, c. C-44, s. 242; 2001, c. 14, s. 118(F); 2011, c. 21, s. 69. |
Frais provisoires
(4) En donnant suite aux demandes, actions ou interventions visées à la présente partie, le tribunal peut ordonner à la société ou à sa filiale de verser aux plaignants des frais provisoires, y compris les honoraires légaux et les déboursés, dont ils pourront être comptables lors de ladjudication définitive.
L.R. (1985), ch. C-44, art. 242; 2001, ch. 14, art. 118(F); 2011, ch. 21, art. 69. | |
Application to court to rectify records
243 (1) If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the registers or other records of a corporation, the corporation, a security holder of the corporation or any aggrieved person may apply to a court for an order that the registers or records be rectified. |
Demande de rectification au tribunal
243 (1) La société, ainsi que les détenteurs de ses valeurs mobilières ou toute personne qui subit un préjudice, peut demander au tribunal de rectifier, par ordonnance, ses registres ou livres, si le nom dune personne y a été inscrit, supprimé ou omis prétendument à tort. | |
Notice to Director
(2) An applicant under this section shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. |
Avis au directeur
(2) Le demandeur qui agit en vertu du présent article doit donner avis de sa demande au directeur; celui-ci peut comparaître en personne ou par ministère davocat. | |
Powers of court
(3) In connection with an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order requiring the registers or other records of the corporation to be rectified;
(b) an order restraining the corporation from calling or holding a meeting of shareholders or paying a dividend before such rectification;
(c) an order determining the right of a party to the proceedings to have their name entered or retained in, or deleted or omitted from, the registers or records of the corporation, whether the issue arises between two or more security holders or alleged security holders, or between the corporation and any security holders or alleged security holders; and
(d) an order compensating a party who has incurred a loss.
R.S., 1985, c. C-44, s. 243; 2001, c. 14, s. 135(E). |
Pouvoirs du tribunal
(3) En donnant suite aux demandes visées au présent article, le tribunal peut rendre les ordonnances quil estime pertinentes et, notamment :
a) ordonner la rectification des registres ou autres livres de la société;
b) enjoindre à la société de ne pas convoquer ni tenir dassemblée ni de verser de dividende avant cette rectification;
c) déterminer le droit dune partie à linscription, au maintien, à la suppression ou à lomission de son nom, dans les registres ou livres de la société, que le litige survienne entre plusieurs détenteurs ou prétendus détenteurs de valeurs mobilières ou entre eux et la société;
d) indemniser toute partie qui a subi une perte.
L.R. (1985), ch. C-44, art. 243; 2001, ch. 14, art. 135(A). |
Current to February 11, 2020 |
201 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 244-246 |
Articles 244-246 |
Application for directions
244 The Director may apply to a court for directions in respect of any matter concerning the Directors duties under this Act, and on such application the court may give such directions and make such further order as it thinks fit.
R.S., 1985, c. C-44, s. 244; 2001, c. 14, s. 135(E). |
Demande dinstructions
244 Le tribunal, saisi par le directeur, peut lui donner des instructions concernant les devoirs que lui impose la présente loi et rendre toute autre ordonnance quil estime pertinente.
L.R. (1985), ch. C-44, art. 244; 2001, ch. 14, art. 135(A). | |
Notice of refusal by Director
245 (1) If the Director refuses to file any articles or other document that this Act requires the Director to file before the articles or other document become effective, the Director shall, within twenty days after receiving them or twenty days after receiving any approval that may be required under any other Act, whichever is later, give written notice of the refusal to the person who sent the articles or document, giving reasons. |
Avis de refus du directeur
245 (1) Le directeur, sil refuse de procéder à lenregistrement de documents, notamment des statuts, exigé par la présente loi pour quils deviennent opérants, doit, dans les vingt jours de la réception soit de ces documents, soit, si elle est postérieure, de lapprobation requise par toute autre loi, donner par écrit, à lexpéditeur, un avis motivé de son refus. | |
Deemed refusal
(2) If the Director does not file or give written notice of the refusal to file any articles or document within the time limited therefor in subsection (1), the Director is deemed for the purposes of section 246 to have refused to file the articles or document.
R.S., 1985, c. C-44, s. 245; 2001, c. 14, s. 135(E). |
Présomption
(2) Le défaut denregistrement ou denvoi de lavis écrit dans le délai prévu au paragraphe (1) équivaut, pour lapplication de larticle 246, à un refus du directeur.
L.R. (1985), ch. C-44, art. 245; 2001, ch. 14, art. 135(A). | |
Appeal from Directors decision
246 A person who feels aggrieved by a decision of the Director referred to in any of paragraphs (a) to (g) may apply to a court for an order, including an order requiring the Director to change the decision
(a) to refuse to file in the form submitted any articles or other document required by this Act to be filed;
(b) to give a name, to change or revoke a name, or to refuse to reserve, accept, change or revoke a name under section 12;
(c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations;
(d) to refuse under subsection 187(11) to permit a continued reference to shares having a nominal or par value;
(e) to refuse to issue a certificate of discontinuance under section 188 or a certificate attesting that as of a certain date the corporation exists under subsection 263.1(2);
(f) to issue, or to refuse to issue, a certificate of revival under section 209, or the decision with respect to the terms for revival imposed by the Director; |
Appel
246 Le tribunal peut, par ordonnance, prendre les mesures quil estime pertinentes et, notamment, enjoindre au directeur de modifier sa décision, sur demande de toute personne qui estime avoir subi un préjudice en raison de la décision du directeur :
a) de refuser de procéder, en la forme qui lui est soumise, à lenregistrement des statuts ou documents comme lexige la présente loi;
b) de donner, de modifier ou dannuler la dénomination sociale de la société ou de refuser de la réserver, de laccepter, de la modifier ou de lannuler en vertu de larticle 12;
c) daccorder ou de refuser daccorder une dispense qui peut être consentie en vertu de la présente loi et de ses règlements;
d) de refuser, en vertu du paragraphe 187(11), dautoriser le maintien, dans les statuts, des références aux actions à valeur nominale ou au pair;
e) de refuser de délivrer le certificat de changement de régime en vertu de larticle 188 ou le certificat attestant lexistence dune société à une date précise en application du paragraphe 263.1(2); |
Current to February 11, 2020 |
202 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 246-250 |
Articles 246-250 |
(f.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 265;
(f.2) to cancel, or to refuse to cancel, the articles and related certificate under section 265.1; or
(g) to dissolve a corporation under section 212.
The Court may make any order it thinks fit.
R.S., 1985, c. C-44, s. 246; 1999, c. 31, s. 65; 2001, c. 14, s. 119. |
f) de délivrer ou de refuser de délivrer le certificat de reconstitution de la société conformément à larticle 209, ou la décision concernant les modalités pour sa reconstitution;
f.1) de rectifier ou de refuser de rectifier les statuts, avis, certificats ou autres documents en vertu de larticle 265;
f.2) dannuler ou de refuser dannuler les statuts et les certificats connexes en vertu de larticle 265.1;
g) de dissoudre la société en vertu de larticle 212.
L.R. (1985), ch. C-44, art. 246; 1999, ch. 31, art. 65; 2001, ch. 14, art. 119. | |
Restraining or compliance order
247 If a corporation or any director, officer, employee, agent or mandatary, auditor, trustee, receiver, receiver-manager, sequestrator or liquidator of a corporation does not comply with this Act, the regulations, articles or by laws, or a unanimous shareholder agreement, a complainant or a creditor of the corporation may, in addition to any other right they have, apply to a court for an order directing any such person to comply with, or restraining any such person from acting in breach of, any provisions of this Act, the regulations, articles or by-laws, or a unanimous shareholder agreement, and on such application the court may so order and make any further order it thinks fit.
R.S., 1985, c. C-44, s. 247; 2001, c. 14, s. 135(E); 2011, c. 21, s. 70(E). |
Ordonnances
247 En cas dinobservation, par la société ou ses administrateurs, dirigeants, employés, mandataires, vérificateurs, fiduciaires, séquestres, séquestres-gérants ou liquidateurs, de la présente loi, de ses règlements dapplication, des statuts, des règlements administratifs de la société ou dune convention unanime des actionnaires, tout plaignant ou créancier a, en plus de ses autres droits, celui de demander au tribunal de leur ordonner de sy conformer, celui-ci pouvant rendre à cet effet les ordonnances quil estime pertinentes.
L.R. (1985), ch. C-44, art. 247; 2001, ch. 14, art. 135(A); 2011, ch. 21, art. 70(A). | |
Summary application to court
248 Where this Act states that a person may apply to a court, the application may be made in a summary manner by petition, originating notice of motion, or otherwise as the rules of the court provide, and subject to any order respecting notice to interested parties or costs, or any other order the court thinks fit.
1974-75-76, c. 33, s. 241; 1978-79, c. 9, s. 1(F). |
Demande sommaire
248 Les demandes autorisées par la présente loi peuvent être présentées par voie sommaire sous forme de requête, davis de motion introductive dinstance ou selon les règles du tribunal et sous réserve des ordonnances quil estime pertinentes, notamment en matière davis aux parties concernées ou de frais.
1974-75-76, ch. 33, art. 241; 1978-79, ch. 9, art. 1(F). | |
Appeal of final order
249 (1) An appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act. |
Appel
249 (1) Toute ordonnance définitive dun tribunal rendue en vertu de la présente loi est susceptible dappel, devant la cour dappel de la province. | |
Appeal with leave
(2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court.
R.S., 1985, c. C-44, s. 249; 2001, c. 14, s. 120. |
Permission den appeler
(2) Toute autre ordonnance dun tribunal nest susceptible dappel que sur permission de la cour dappel de la province conformément aux règles applicables à celle-ci.
L.R. (1985), ch. C-44, art. 249; 2001, ch. 14, art. 120. | |
Offences with respect to reports
250 (1) A person who makes or assists in making a report, return, notice or other document required by this |
Infractions
250 (1) Les auteurs ou leurs collaborateurs des rapports, déclarations, avis ou autres documents à |
Current to February 11, 2020 |
203 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 250-252 |
Articles 250-252 |
Act or the regulations to be sent to the Director or to any other person that
(a) contains an untrue statement of a material fact, or
(b) omits to state a material fact required therein or necessary to make a statement contained therein not misleading in the light of the circumstances in which it was made
is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. |
envoyer notamment au directeur aux termes de la présente loi ou des règlements, qui, selon le cas :
a) contiennent de faux renseignements sur un fait important;
b) omettent dénoncer un fait important requis ou nécessaire pour éviter que la déclaration ne soit trompeuse eu égard aux
circonstances, commettent une infraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines. | |
Officers, etc., of bodies corporate
(2) Where a body corporate commits an offence under subsection (1), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. |
Personnes morales et leurs dirigeants, etc.
(2) En cas de perpétration par une personne morale dune infraction visée au paragraphe (1), ceux de ses administrateurs ou dirigeants qui y ont sciemment donné leur autorisation, leur permission ou leur acquiescement sont considérés comme des coauteurs de linfraction et encourent, sur déclaration de culpabilité par procédure sommaire, une amende maximale de cinq mille dollars et un emprisonnement maximal de six mois, ou lune de ces peines, que la personne morale ait été ou non poursuivie ou déclarée coupable. | |
Immunity
(3) No person is guilty of an offence under subsection (1) or (2) if the person did not know, and in the exercise of reasonable diligence could not have known, of the untrue statement or omission. |
Immunité
(3) Nul nest coupable dune infraction visée aux paragraphes (1) ou (2), si, même en faisant preuve dune diligence raisonnable, il ne pouvait avoir connaissance soit de linexactitude des renseignements soit de lomission. | |
Register of individuals with significant control
(4) For greater certainty, a register referred to in subsection 21.1(1) or an extract from it is not a report, return, notice or other document for the purposes of this section.
R.S., 1985, c. C-44, s. 250; 2001, c. 14, s. 135(E); 2018, c. 27, s. 184. |
Registre des particuliers ayant un contrôle important
(4) Il est entendu que, pour lapplication du présent article, le registre, ou tout extrait de celui-ci, mentionné au paragraphe 21.1(1) nest pas un rapport, une déclaration, un avis ou un autre document.
L.R. (1985), ch. C-44, art. 250; 2001, ch. 14, art. 135(A); 2018, ch. 27, art. 184. | |
Offence
251 Every person who, without reasonable cause, contravenes a provision of this Act or the regulations for which no punishment is provided is guilty of an offence punishable on summary conviction.
1974-75-76, c. 33, s. 244; 1978-79, c. 9, s. 1(F). |
Infraction
251 Toute personne qui, sans motif raisonnable, contrevient à la présente loi ou à des règlements commet, en labsence de peines précises, une infraction punissable sur déclaration de culpabilité par procédure sommaire.
1974-75-76, ch. 33, art. 244; 1978-79, ch. 9, art. 1(F). | |
Order to comply
252 (1) Where a person is guilty of an offence under this Act or the regulations, any court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order that person to comply with the provisions of this Act or the regulations |
Ordre de se conformer à la loi
252 (1) Le tribunal peut, en plus des peines prévues, ordonner aux personnes déclarées coupables dinfractions à la présente loi ou aux règlements de se conformer aux dispositions auxquelles elles ont contrevenu. |
Current to February 11, 2020 |
204 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART XX Remedies, Offences and Punishment |
PARTIE XX Recours, infractions et peines | |
Sections 252-252.3 |
Articles 252-252.3 |
for the contravention of which the person has been convicted. |
||
Limitation period
(2) A prosecution for an offence under this Act may be instituted at any time within but not later than two years after the time when the subject-matter of the complaint arose. |
Prescription
(2) Les infractions prévues par la présente loi se prescrivent par deux ans à compter de leur date. | |
Civil remedy not affected
(3) No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence under this Act.
R.S., 1985, c. C-44, s. 252; 2001, c. 14, s. 135(E). |
Maintien des recours civils
(3) Les recours civils ne sont ni éteints ni modifiés du fait des infractions à la présente loi.
L.R. (1985), ch. C-44, art. 252; 2001, ch. 14, art. 135(A). | |
PART XX.1 | PARTIE XX.1 | |
Documents in Electronic or Other Form | Documents sous forme électronique ou autre | |
Definitions
252.1 The definitions in this section apply in this Part.
electronic document means, except in section 252.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means. (document électronique)
information system means a system used to generate, send, receive, store, or otherwise process an electronic document. (système dinformation)
2001, c. 14, s. 121. |
Définitions
252.1 Les définitions qui suivent sappliquent à la présente partie.
document électronique Sauf à larticle 252.6, sentend de toute forme de représentation dinformations ou de notions fixée sur quelque support que ce soit par des moyens électroniques, optiques ou autres moyens semblables et qui peut être lue ou perçue par une personne ou par tout moyen. (electronic document)
système dinformation Système utilisé pour créer, transmettre, recevoir, mettre en mémoire ou traiter de toute autre manière des documents électroniques. (information system)
2001, ch. 14, art. 121. | |
Application
252.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.
2001, c. 14, s. 121. |
Application
252.2 La présente partie ne sapplique pas aux avis, documents ou autre information que le directeur envoie ou reçoit en vertu de la présente loi ni à ceux visés par règlement.
2001, ch. 14, art. 121. | |
Use not mandatory
252.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document. |
Utilisation non obligatoire
252.3 (1) La présente loi et ses règlements dapplication nobligent personne à créer ou transmettre un document électronique. | |
Consent and other requirements
(2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a |
Consentement et autres exigences
(2) Malgré toute autre disposition de la présente partie, dans les cas où une disposition de la présente loi ou de |
Current to February 11, 2020 |
205 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX.1 Documents in Electronic or Other Form |
PARTIE XX.1 Documents sous forme électronique ou autre | |
Sections 252.3-252.5 |
Articles 252.3-252.5 |
notice, document or other information is not satisfied by the provision of an electronic document unless
(a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and
(b) the electronic document is provided to the designated information system, unless otherwise prescribed. |
ses règlements exige la fourniture dun avis, dun document ou autre information, la transmission dun document électronique ne satisfait à lobligation que si :
a) le destinataire a donné son consentement selon les modalités réglementaires et désigné un système dinformation pour sa réception;
b) le document électronique est transmis au système dinformation ainsi désigné, sauf disposition réglementaire contraire. | |
Revocation of consent
(3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.
2001, c. 14, s. 121. |
Révocation du consentement
(3) Le destinataire peut, selon les modalités réglementaires, révoquer son consentement.
2001, ch. 14, art. 121. | |
Creation and provision of information
252.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided, is satisfied by the creation or provision of an electronic document if
(a) the by-laws or the articles of the corporation do not provide otherwise; and
(b) the regulations, if any, have been complied with.
2001, c. 14, s. 121. |
Création et fourniture dinformation
252.4 Dans les cas où une disposition de la présente loi ou de ses règlements exige la création ou la fourniture dun avis, dun document ou autre information, la création ou la transmission dun document électronique satisfait à lobligation si les conditions suivantes sont réunies :
a) les statuts ou les règlements administratifs de la société ne sy opposent pas;
b) sil y a lieu, les exigences réglementaires sont observées.
2001, ch. 14, art. 121. | |
Creation of information in writing
252.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 252.4,
(a) the information in the electronic document is accessible so as to be usable for subsequent reference; and
(b) the regulations pertaining to this subsection, if any, have been complied with. |
Création dinformation écrite
252.5 (1) Dans le cas où une disposition de la présente loi ou de ses règlements exige quun avis, un document ou autre information soit créé par écrit, la création dun document électronique satisfait à lobligation si, en sus des conditions visées à larticle 252.4, les conditions suivantes sont réunies :
a) linformation qui y est contenue est accessible pour consultation ultérieure;
b) sil y a lieu, les exigences réglementaires visant lapplication du présent paragraphe sont observées. | |
Provision of information in writing
(2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 252.4,
(a) the information in the electronic document is accessible by the addressee and capable of being |
Fourniture dinformation sous forme écrite
(2) Dans le cas où une disposition de la présente loi ou de ses règlements exige quun avis, un document ou autre information soit fourni par écrit, la transmission dun document électronique satisfait à lobligation si, en sus des conditions visées à larticle 252.4, les conditions suivantes sont réunies : |
Current to February 11, 2020 |
206 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations | Sociétés par actions | |
PART XX.1 Documents in Electronic or Other Form |
PARTIE XX.1 Documents sous forme électronique ou autre | |
Sections 252.5-252.6 |
Articles 252.5-252.6 |
retained by the addressee, so as to be usable for subsequent reference; and
(b) the regulations pertaining to this subsection, if any, have been complied with. |
a) linformation qui y est contenue peut être conservée par le destinataire et lui est accessible pour consultation ultérieure;
b) sil y a lieu, les exigences réglementaires visant lapplication du présent paragraphe sont observées. | |
Copies
(3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document. |
Exemplaires
(3) Dans le cas où une disposition de la présente loi ou de ses règlements exige la fourniture dun ou de plusieurs exemplaires dun document à un seul destinataire dans le même envoi, la transmission dun document électronique satisfait à lobligation. | |
Registered mail
(4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.
2001, c. 14, s. 121; 2018, c. 8, s. 35(F). |
Courrier recommandé
(4) Dans le cas où une disposition de la présente loi ou de ses règlements exige la transmission dun document par courrier recommandé, lobligation ne peut être satisfaite par la transmission dun document électronique que si les règlements le prévoient.
2001, ch. 14, art. 121; 2018, ch. 8, art. 35(F). | |
Statutory declarations and affidavits
252.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if
(a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature;
(b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and
(c) the requirements of sections 252.3 to 252.5 are complied with. |
Déclaration solennelle ou sous serment
252.6 (1) Dans le cas où une disposition de la présente loi ou de ses règlements exige une déclaration solennelle ou sous serment, celle-ci peut être créée ou fournie dans un document électronique si les conditions suivantes sont réunies :
a) son auteur y appose sa signature électronique sécurisée;
b) la personne autorisée devant qui elle a été faite appose à celle-ci sa signature électronique sécurisée;
c) les conditions visées aux articles 252.3 à 252.5 ont été observées. | |
Definitions
(2) For the purposes of this section, electronic document and secure electronic signature have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act. |
Dispositions applicables
(2) Pour lapplication du présent article, document électronique et signature électronique sécurisée sentendent au sens du paragraphe 31(1) de la Loi sur la protection des renseignements personnels et les documents électroniques. | |
Clarification
(3) For the purpose of complying with paragraph (1)(c), the references to an electronic document in sections 252.3 to 252.5 are to be read as references to an electronic document as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
2001, c. 14, s. 121. |
Précision
(3) Pour lapplication de lalinéa (1)c), les mentions de document électronique aux articles 252.3 à 252.5 valent mention dun document électronique au sens du paragraphe 31(1) de la Loi sur la protection des renseignements personnels et les documents électroniques.
2001, ch. 14, art. 121. |
Current to February 11, 2020 |
207 | À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART XX.1 Documents in Electronic or Other Form |
PARTIE XX.1 Documents sous forme électronique ou autre | |
Sections 252.7-253 |
Articles 252.7-253 |
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208 |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 253-257 |
Articles 253-257 |
Current to February 11, 2020 |
209 |
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Last amended on January 1, 2020 |
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Canada Business Corporations |
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PARTIE XXI Dispositions générales | |
Sections 257-258.1 |
Articles 257-258.1 |
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210 |
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Last amended on January 1, 2020 |
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Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 258.1-261 |
Articles 258.1-261 |
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211 |
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Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Section 261 |
Article 261 |
Current to February 11, 2020 |
212 |
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Last amended on January 1, 2020 |
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Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 261-262 |
Articles 261-262 |
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213 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 262-263.1 |
Articles 262-263.1 |
Current to February 11, 2020 |
214 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
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Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 263.1-265 |
Articles 263.1-265 |
Current to February 11, 2020 |
215 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 265-265.1 |
Articles 265-265.1 |
Current to February 11, 2020 |
216 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 265.1-267 |
Articles 265.1-267 |
Current to February 11, 2020 |
217 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Sections 267-268 |
Articles 267-268 |
Current to February 11, 2020 |
218 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Section 268 |
Article 268 |
Current to February 11, 2020 |
219 |
À jour au 11 février 2020 | ||
Last amended on January 1, 2020 |
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Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Section 268 |
Article 268 |
Current to February 11, 2020 |
220 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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PART XXI General |
PARTIE XXI Dispositions générales | |
Section 268 |
Article 268 |
Current to February 11, 2020 |
221 |
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Last amended on January 1, 2020 |
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Canada Business Corporations |
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SCHEDULE Offences |
ANNEXE Infractions |
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222 |
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Last amended on January 1, 2020 |
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SCHEDULE Offences |
ANNEXE Infractions |
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223 |
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Last amended on January 1, 2020 |
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Canada Business Corporations |
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SCHEDULE Offences |
ANNEXE Infractions |
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224 |
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Canada Business Corporations |
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SCHEDULE Offences |
ANNEXE Infractions |
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225 |
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SCHEDULE Offences |
ANNEXE Infractions |
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226 |
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228 |
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229 |
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DISPOSITIONS CONNEXES |
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230 |
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RELATED PROVISIONS |
DISPOSITIONS CONNEXES |
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231 |
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RELATED PROVISIONS |
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232 |
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AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
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233 |
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234 |
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AMENDMENTS NOT IN FORCE |
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235 |
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236 |
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AMENDMENTS NOT IN FORCE |
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237 |
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Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
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238 |
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Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
239 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
Sociétés par actions | |
AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
240 |
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Last amended on January 1, 2020 |
Dernière modification le 1 janvier 2020 |
Canada Business Corporations |
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AMENDMENTS NOT IN FORCE |
MODIFICATIONS NON EN VIGUEUR |
Current to February 11, 2020 |
241 |
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Dernière modification le 1 janvier 2020 |
Exhibit 8(e)
71-101 The Multijurisdictional Disclosure System, SECPOLY 37983492014
SECPOLY 37983492014
Securities Regulatory Materials
National
National Documents
National Instruments
Securities Transactions Outside the Jurisdiction
Date: August 14, 1998
71-101 The Multijurisdictional Disclosure System
National Instrument 71-101 The Multijurisdictional Disclosure System
Part 1 Definitions
1.1 Definitions In this Instrument
acting jointly or in concert has the same interpretation as in securities legislation;
affiliated party, for an issuer, means a person or company that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the issuer;
bid means a take-over bid or an issuer bid;
bid circular means a take-over bid circular or an issuer bid circular as those terms are used in securities legislation;
business combination means a statutory merger or consolidation or similar plan or acquisition requiring the vote or consent of securityholders of a person or company, in which securities of the person or company or another person or company held by the securityholders will become or be exchanged for securities of any other person or company;
commodity pool issuer means an issuer formed and operated for the purpose of investing in commodity futures contracts, commodity futures, related products, or a combination of them;
connected issuer has the meaning ascribed to the term connected issuer or connected party in securities legislation;
control, with respect to an issuer, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the issuer, whether through the ownership of voting securities, by contract or otherwise, and under common control with has a corresponding meaning;
convertible, for debt or preferred shares, means that the rights and attributes attaching to the securities include a right or option to purchase, convert into, exchange for or otherwise acquire a security of the issuer or of another issuer that is
(a) an equity share,
(b) a debt or a preferred share not having an investment grade rating in the case of a debt or a preferred share having an investment grade rating, or
(c) another security that itself has a right or option to purchase, convert into, exchange for or otherwise acquire a security of the issuer or another issuer that is an equity share, or a debt or a preferred share not having an investment grade rating in the case of a debt or a preferred share having an investment grade rating;
convert has a corresponding meaning to the term convertible;
|
Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. |
1 |
71-101 The Multijurisdictional Disclosure System, SECPOLY 37983492014
dealer registration requirement means the requirement in securities legislation that prohibits a person or company from trading in a security unless the person or company is registered in the appropriate category of registration under securities legislation;
equity shares means common shares, non-voting equity shares and subordinate or restricted voting equity shares, but excludes preferred shares;
expertised statement means part of a disclosure document required to be filed for a distribution or bid made under this Instrument, a document that is incorporated by reference in the disclosure document, or a report used in or in connection with the disclosure document or any document incorporated by reference in the disclosure document, that in each case is purported to be made on the authority of an expert;
foreign issuer means an issuer that is not incorporated or organized under the laws of Canada or a jurisdiction, unless
(a) voting securities carrying more than 50 percent of the votes for the election of directors are held by persons or companies whose last address as shown on the books of the issuer is in Canada, and
(b) any one or more of
(i) the majority of the senior officers or directors of the issuer are citizens or residents of Canada,
(ii) more than 50 percent of the assets of the issuer are located in Canada, or
(iii) the business of the issuer is administered principally in Canada;
independent underwriter means a person or company that underwrites securities distributed by MJDS prospectus that is not the issuer and in respect of which
(a) if the person or company is a registrant, the issuer is not a connected issuer or related issuer, or
(b) if the person or company is not a registrant, would not be a connected issuer or related issuer if the person or company was a registrant;
insider bid has the meaning ascribed to that term in securities legislation;
insider reporting requirement means the requirement in securities legislation for an insider of a reporting issuer to file reports disclosing the insiders direct or indirect beneficial ownership of, or control or direction over, securities of the issuer;
intermediary, for purposes of section 18.1, means a registered dealer or adviser, a bank or trust company, a participant in a clearing agency, a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan, or other similar self-administered savings or investment plan registered under the ITA, or a nominee of any of those persons, that holds a security on behalf of another person or company that is not the registered holder of the security, unless excluded from the definition of intermediary by National Policy Statement No. 41 or any successor instrument to that national policy statement;
investment grade rating means a provisional rating by a rating organization in one of its generic rating categories that signifies investment grade;
issuer tender offer statement means an issuer tender offer statement on Schedule 13E-4 under Section 13(e)(1) of the 1934 Act;
issuer bid has the meaning ascribed to that term in securities legislation;
|
Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. |
2 |
71-101 The Multijurisdictional Disclosure System, SECPOLY 37983492014
majority-owned subsidiary means a person or company of which voting securities carrying more than 50 percent of the votes for the election of directors are held by any one or more of
(a) another person or company, and
(b) the other majority-owned subsidiaries of that other person or company;
method 1 means the first of the two alternative methods of providing prospectus certificates for rule 415 offerings made under this Instrument set forth in Appendix A;
method 2 means the second of the two alternative methods of providing prospectus certificates for rule 415 offerings made under this Instrument set forth in Appendix B;
MJDS means the multijurisdictional disclosure system established by this Instrument;
MJDS directors circular means, for a take-over bid for a class of securities of a U.S. issuer made under this Instrument, a tender offer solicitation/recommendation statement, amendments to that statement and all other information and materials required or permitted to be disseminated to holders of the securities by the offeree issuer or its board of directors for a tender offer made for the securities under U.S. federal securities law, that in each case complies with the form and content requirements of subsection 12.4(2);
MJDS directors or officers circular means, for a take-over bid for a class of securities of a U.S. issuer made under this Instrument, a tender offer solicitation/recommendation statement, amendments to that statement and all other information and materials required or permitted to be disseminated to holders of the securities by an individual director or officer for a tender offer made for the securities under U.S. federal securities law, that in each case complies with the form and content requirements of subsection 12.4(2);
MJDS issuer bid circular means, for an issuer bid for a class of securities of a U.S. issuer made under this Instrument, an issuer tender offer statement, amendments to that statement and all other information and materials required to be disseminated to holders of the securities by the issuer for an issuer tender offer made for the securities under U.S. federal securities law, that in each case complies with the form and content requirements of subsection 12.4(1);
MJDS prospectus means, for a distribution of securities under this Instrument other than under section 12.3, a U.S. prospectus that contains the additional information, legends and certificates required by, and otherwise complies with the disclosure requirements of, this Instrument;
MJDS take-over bid circular means, for a take-over bid for a class of securities of a U.S. issuer made under this Instrument, a tender offer statement, amendments to that statement and all other information and materials required to be disseminated to holders of the securities by the offeror for a tender offer made for the securities under U.S. federal securities law, that in each case complies with the form and content requirements of subsection 12.4(1);
MTN program means a continuous rule 415 offering of debt in which the specific variable terms of the individual securities and the offering of the securities are determined at the time of sale;
Nasdaq means the Nasdaq Stock Market;
NNM means the Nasdaq National Market;
non-convertible means securities that are not convertible;
offeree issuer has the meaning ascribed to that term in securities legislation;
offeror has the meaning ascribed to that term in securities legislation;
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parent, for a majority-owned subsidiary, means a person or company that, alone or together with any one or more of the person or companys other majority-owned subsidiaries, holds voting securities of the majority-owned subsidiary carrying more than 50 percent of the votes for the election of directors;
preliminary MJDS prospectus means, for a distribution of securities under this Instrument other than under section 12.3, a preliminary form of MJDS prospectus;
principal jurisdiction means the jurisdiction specified in accordance with section 5.1;
principal market, for a class of securities, means the single securities market with the largest aggregate trading volume for the class of securities in the preceding 12 calendar month period;
prospectus requirement means the prohibition in securities legislation from a person or company distributing a security unless a preliminary prospectus and prospectus for the distribution have been filed and receipts obtained for them;
public float, for a class of securities, means
(a) the aggregate market value of the securities held by persons or companies that are not affiliated parties of the issuer of the securities, calculated by using the price at which the securities were last sold in the principal market for the securities on the date specified in the applicable provision of this Instrument, or the average of the bid and asked prices of the securities in the principal market on that date if there were no sales on that date,
(b) if there is no market for the class of securities, the book value of the securities held by persons or companies that are not affiliated parties of the issuer of the securities computed on that date, and
(c) if the issuer of the class of securities is in bankruptcy or receivership or has an accumulated capital deficit, one-third of the principal amount, par value or stated value of the securities held by persons or companies that are not affiliated parties of the issuer of the securities computed on that date;
rating organization means each of CBRS Inc., Dominion Bond Rating Service Limited, Moodys Investors Service, Inc., Standard & Poors Corporation and any entity recognized by the SEC as a nationally recognized statistical rating organization as that term is used in Rule 15c3-1(c)(2)(vi)(F) under the 1934 Act;
related issuer has the meaning ascribed to the term related issuer or related party in securities legislation;
rule 415 offering means a distribution under Rule 415 under the 1933 Act that is made under this Instrument;
rule 415 prospectus supplement means a form of prospectus supplement prepared for a rule 415 offering;
rule 430A offering means a distribution under Rule 430A under the 1933 Act that is made under this Instrument;
rule 430A pricing prospectus means a MJDS prospectus prepared for a rule 430A offering that contains the information omitted from the U.S. prospectus included as part of the registration statement at the time of effectiveness of the registration statement, as permitted by Rule 430A under the 1933 Act;
securities exchange bid means a bid in which the consideration for the securities of the offeree issuer consists, in whole or in part, of securities of an offeror or other issuer;
specified predecessor means, for a successor issuer continuing after a business combination, a predecessor to the successor issuer whose assets and gross revenues in aggregate would contribute less than 20 percent of the total assets and gross revenues from continuing operations of the successor issuer, based on a pro forma combination of each predecessors financial position and results of operations for its most recently completed financial year ended before the business combination for which financial statements have been filed;
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successor issuer means an issuer subsisting as an issuer after a business combination;
take-over bid has the meaning ascribed to that term in securities legislation;
tender offer solicitation/recommendation statement means a statement made under rule 14d-9 or 14e-2 under the 1934 Act;
tender offer statement means a tender offer statement on Schedule 14D-1 under section 14(d) of the 1934 Act;
U.S. federal securities law means the federal statutes of the United States of America concerning the regulation of securities markets and trading in securities and the regulations, rules, forms and schedules under those statutes;
U.S. issuer means a foreign issuer that is incorporated or organized under the laws of the United States of America or any state or territory of the United States of America or the District of Columbia;
U.S. prospectus means a prospectus that has been prepared in accordance with the disclosure and other requirements of U.S. federal securities law for an offering of securities registered under the 1933 Act, or if the offering is not being made contemporaneously in the U.S., as if the offering is being made on a registered basis in the United States of America;
voting securities means securities the holders of which have a present entitlement to vote for the election of directors;
1934 Act filings means all filings required to be made with the SEC under sections 13, 14 and 15(d) of the 1934 Act; and
1940 Act means the Investment Company Act of 1940 of the United States of America.
Part 2 General
2.1 Timing of Filing Unless otherwise provided in this Instrument, documents that must be filed under this Instrument that are also filed with the SEC shall be filed as nearly as practicable contemporaneously with the filing with the SEC.
2.2 Successor Issuers A successor issuer satisfies the eligibility criteria set forth in subparagraphs 3.1(a)(iii), 3.1(b)(ii) and (iii) and paragraphs 12.3(1)(c) and 13.1(1)(c) if
(a) since the business combination the successor issuer has made all 1934 Act filings and, if applicable, has had a class of its securities listed on the New York Stock Exchange or the American Stock Exchange or quoted on NNM;
(b) the successor issuer is in compliance with the obligations arising from the listing or quotation referred to in paragraph (a), if applicable; and
(c) the filing, listing or quotation requirement to be satisfied for a period of 12 or 36 months is satisfied for each predecessor, other than a specified predecessor.
2.3 Successor Issuer Interpretation In determining if the filing, listing or quotation requirement in paragraph 2.2(c) is satisfied for a period of 12 or 36 months for each predecessor, the period during which the successor issuer satisfied the requirement shall be added to the immediately preceding period during which the predecessor satisfied the requirement.
Part 3 MJDS Prospectus Distributions of Securities of U.S. Issuers
3.1 General Eligibility Criteria Subject to section 3.3, this Instrument may be used to distribute
(a) debt that has an investment grade rating or preferred shares that have an investment grade rating, in each case at the time the preliminary MJDS prospectus is filed in the principal jurisdiction, or rights that, upon issuance, are immediately exercisable for any of these securities, if
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(i) the issuer is a U.S. issuer,
(ii) the issuer
(A) has a class of securities registered under section 12(b) or 12(g) of the 1934 Act, or
(B) is required to file reports under section 15(d) of the 1934 Act,
(iii) the issuer has filed with the SEC all 1934 Act filings for a period of 12 calendar months immediately before the filing of the preliminary MJDS prospectus in the principal jurisdiction,
(iv) the issuer is not registered or required to be registered as an investment company under the 1940 Act,
(v) the issuer is not a commodity pool issuer, and
(vi) the securities being offered or issuable upon the exercise of the rights either,
(A) are non-convertible, or
(B) if convertible, may not be converted for at least one year after issuance, and the equity shares of the issuer of the securities into which the offered securities are convertible have a public float of not less than U.S. $75,000,000, determined as of a date within 60 days before the filing of the preliminary MJDS prospectus in the principal jurisdiction;
(b) rights to purchase additional securities of its own issue issued by a U.S. issuer to its existing securityholders and the securities issued upon the exercise of the rights, if
(i) the issuer meets the eligibility criteria specified in subparagraphs (a)(ii), (iv) and (v),
(ii) the issuer has filed with the SEC all 1934 Act filings for a period of 36 calendar months immediately before the filing of the preliminary MJDS prospectus in the principal jurisdiction,
(iii) the issuer has had a class of its securities listed on the New York Stock Exchange or the American Stock Exchange or quoted on the NNM for a period of at least 12 calendar months immediately before the filing of the preliminary MJDS prospectus in the principal jurisdiction and is in compliance with the obligations arising from the listing or quotation,
(iv) the rights are exercisable immediately upon issuance,
(v) subject to subparagraph (vi), the rights issued to residents of Canada have the same terms and conditions as the rights issued to residents of the United States of America, and
(vi) beneficial ownership of rights issued to a resident of Canada are not transferable to a resident of Canada, other than residents to whom rights of the same issue were granted, provided that,
(A) the securities issuable upon exercise of the rights may be so transferable, and
(B) this limitation does not restrict the transfer of rights on a securities exchange or inter-dealer quotation system outside of Canada; or
(c) any securities of a U.S. issuer if
(i) the issuer meets the eligibility criteria specified in subparagraphs (a)(ii) to (v), and
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(ii) the equity shares of the issuer have a public float of not less than U.S. $75,000,000, determined as of a date within 60 days before the filing of the preliminary MJDS prospectus in the principal jurisdiction.
3.2 Alternative Eligibility Criteria for Certain Guaranteed Issues Subject to section 3.3, this Instrument may also be used to distribute securities of an issuer, if
(a) the securities distributed are
(i) non-convertible debt having an investment grade rating, or non-convertible preferred shares having an investment grade rating, of a majority-owned subsidiary whose parent meets the eligibility criteria set forth in subparagraphs 3.1(a)(i) through (v),
(ii) convertible debt having an investment grade rating, or convertible preferred shares having an investment grade rating, of a majority-owned subsidiary that may not be converted for at least one year after issuance and are convertible only into securities of a parent that meets the eligibility requirements set forth in subparagraphs 3.1(a)(i) through (v) and sub-subparagraph 3.1(a)(vi)(B),
(iii) non-convertible debt, or non-convertible preferred shares, of a majority-owned subsidiary whose parent meets the eligibility requirements set forth in paragraph 3.1(c), or
(iv) convertible debt, or convertible preferred shares, of a majority-owned subsidiary that are convertible only into securities of a parent that meets the eligibility requirements set forth in paragraph 3.1(c);
(b) the issuer meets the eligibility criteria set forth in subparagraphs 3.1(a)(i), (iv) and (v); and
(c) the parent fully and unconditionally guarantees payment in respect of the securities being distributed, as to principal and interest if the securities are debt, and as to liquidation preference, redemption and dividends if the securities are preferred shares.
3.3 Limitation on Distribution of Derivative Securities (1) No person or company shall file a prospectus for the distribution of derivative securities under this Instrument.
(2) Despite subsection (1), warrants, options, rights or convertible securities may be distributed under this Instrument if the issuer of the underlying securities to which the warrants, options, rights or convertible securities relate is eligible under this Instrument to distribute the underlying securities.
3.4 Preliminary MJDS Prospectus and MJDS Prospectus (1) A U.S. issuer shall file a preliminary MJDS prospectus and a MJDS prospectus for a distribution of securities under this Instrument other than under section 12.3.
(2) A preliminary MJDS prospectus, an amendment to a preliminary MJDS prospectus, a MJDS prospectus and an amendment to a MJDS prospectus is a preliminary prospectus, an amendment to a preliminary prospectus, a prospectus and an amendment to a prospectus, respectively, for the purposes of securities legislation.
Part 4 Form and Content of MJDS Prospectus
4.1 Distributions in Canada and the U.S. Subject to section 4.2, an issuer of securities distributed under this Instrument shall file the registration statement and amendments to the registration statement filed for the offering with the SEC, together with the related preliminary MJDS prospectus and MJDS prospectus and amendments and supplements to the preliminary MJDS prospectus and MJDS prospectus.
4.2 Distributions only in Canada If a distribution is being made only in Canada, the issuer does not need to file a registration statement and amendments to the registration statement, or other information required in a registration statement but not required in the U.S. prospectus.
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4.3 Additional Legends and Disclosure (1) The following statements shall be printed
(a) in red ink on the outside front cover page, or on a sticker on that page, of each preliminary MJDS prospectus used for a distribution under this Instrument
This preliminary MJDS prospectus relating to the securities described in it has been filed in [each of/certain of] the [provinces/provinces and territories] of Canada but has not yet become final for the purpose of a distribution. Information contained in this preliminary MJDS prospectus may not be complete and may have to be amended. The securities may not be distributed until a receipt is obtained for the MJDS prospectus.
(b) on the outside or inside front cover page, or on a sticker on that page, of each preliminary MJDS prospectus and MJDS prospectus
(i) This offering is being made by a U.S. issuer using disclosure documents prepared in accordance with U.S. securities laws. Purchasers should be aware that these requirements may differ from those of [insert the names of the provinces and territories where qualified]. The financial statements included or incorporated by reference in this prospectus have not been prepared in accordance with Canadian generally accepted accounting principles and may not be comparable to financial statements of Canadian issuers.
(ii) [All of] [Certain of] the directors and officers of the issuer and [all of] [certain of] the experts named in this prospectus reside outside of Canada. [[Substantially] [A]II of the assets of these persons and of the issuer may be located outside Canada.] The issuer has appointed [name and address of agent for service] as its agent for service of process in Canada, but it may not be possible for investors to effect service of process within Canada upon the directors, officers and experts referred to above. It may also not be possible to enforce against the issuer, its directors and officers and [certain of] the experts named in this prospectus judgments obtained in Canadian courts predicated upon the civil liability provisions of applicable securities laws in Canada.
(iii) This prospectus constitutes a public offering of these securities only in those jurisdictions where they may be lawfully offered for sale and in those jurisdictions only by persons permitted to sell such securities. No securities commission or similar authority in Canada or the United States of America has in any way passed upon the merits of the securities offered by this prospectus and any representation to the contrary is an offence.; and
(c) in each preliminary MJDS prospectus and MJDS prospectus
Securities legislation in [certain of the provinces [and territories] of Canada] [the Province of... [insert name of local jurisdiction, if applicable]] provides purchasers with the right to withdraw from an agreement to purchase securities within two business days after receipt or deemed receipt of a prospectus and any amendment. [In several of the provinces [and territories], the] securities legislation further provides a purchaser with remedies for rescission [or [, in some jurisdictions,] damages] if the prospectus and any amendment contains a misrepresentation or is not delivered to the purchaser, provided that such remedies for rescission [or damages] are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchasers province [or territory]. The purchaser should refer to the applicable provisions of the securities legislation of the purchasers province [or territory] for particulars of these rights or consult with a legal adviser. Rights and remedies also may be available to purchasers under U.S. law; purchasers may wish to consult with a U.S. legal adviser for particulars of these rights.
(2) A preliminary MJDS prospectus, MJDS prospectus or amendment or supplement to a preliminary MJDS prospectus or MJDS prospectus need not contain any disclosure relevant solely to U.S. offerees or purchasers, including
(a) any red herring legend required by U.S. federal securities law;
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(b) except as provided in paragraph (1)(b)(iii), any legend regarding approval or disapproval by the SEC;
(c) any discussion of U.S. tax considerations other than those material to Canadian purchasers; and
(d) the names of U.S. underwriters not acting as underwriters in Canada or a description of the U.S. plan of distribution, except to the extent necessary to describe facts material to the Canadian distribution.
4.4 Incorporation by Reference Except as otherwise provided in this Instrument, documents incorporated or deemed to be incorporated by reference into a U.S. prospectus under U.S. federal securities law shall be, and are deemed to be, incorporated by reference into a preliminary MJDS prospectus or MJDS prospectus.
4.5 Statements Modified or Superseded (1) A statement in a document incorporated or deemed to be incorporated by reference into a MJDS prospectus shall be deemed to be modified or superseded, for the purposes of the MJDS prospectus, to the extent that a statement in the MJDS prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference into the MJDS prospectus modifies or supersedes the statement.
(2) The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information in the document that it modifies or supersedes.
(3) The making of a modifying or superseding statement shall not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.
(4) A statement so modified or superseded shall not be deemed in its unmodified or superseded form to constitute part of the MJDS prospectus.
(5) If documents are incorporated by reference into a preliminary MJDS prospectus or MJDS prospectus, the section in the preliminary MJDS prospectus or MJDS prospectus that provides information about incorporation by reference shall include a statement that information has been incorporated by reference from documents filed with the Canadian securities regulatory authority in each jurisdiction in which the distribution is being made and shall state the name, address and telephone number of an officer of the issuer from whom copies of the documents may be obtained on request without charge.
4.6 Reconciliation of Financial Statements (1) A preliminary MJDS prospectus and a MJDS prospectus used to distribute securities eligible under paragraph 3.1(c) shall include a reconciliation of the financial statements required to be included or incorporated by reference in the preliminary MJDS prospectus and MJDS prospectus to Canadian GAAP in the notes to the financial statements or as a supplement included or incorporated by reference in the preliminary MJDS prospectus and MJDS prospectus.
(2) A reconciliation required to be included in the financial statements under subsection (1) shall explain and quantify as a separate reconciling item any significant differences between the principles applied in the financial statements, including note disclosure, and Canadian GAAP and, in the case of the reconciliation of the annual financial statements, shall be covered by an auditors report.
4.7 General Certification Requirements Except as provided in sections 4.8 to 4.10, each preliminary MJDS prospectus and MJDS prospectus used for a distribution under this Part shall contain
(a) a certificate in the following form, signed by the chief executive officer, the chief financial officer, and, on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer and the chief financial officer, any person or company who is a promoter of the issuer and each person or company who is a guarantor of the securities distributed under the MJDS prospectus
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The foregoing [insert, if applicable, together with the documents incorporated in this prospectus by reference,] constitutes full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert if offering made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed]
; and
(b) if there is an underwriter, a certificate in the following form, signed by each underwriter who is in a contractual relationship with the issuer or selling securityholder for the securities distributed under the MJDS prospectus
To the best of our knowledge, information and belief, the foregoing [insert, if applicable, , together with the documents incorporated in this prospectus by reference,] constitutes full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert if offering made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
4.8 Certificate Requirement for Rule 415 Offerings A preliminary MJDS prospectus, an amendment to a preliminary MJDS prospectus, a MJDS prospectus and an amendment to a MJDS prospectus filed for a rule 415 offering under this Part shall contain certificates prepared in accordance with method 1 or method 2.
4.9 Certificate Requirement for Rule 430A Offerings For a rule 430A offering,
(a) a preliminary MJDS prospectus, amendment to a preliminary MJDS prospectus and a MJDS prospectus,
(b) an amended MJDS prospectus filed to commence a new period for filing a rule 430A pricing prospectus, and
(c) an amendment to a MJDS prospectus filed for a rule 430A offering before the information omitted from the MJDS prospectus has been filed in either a rule 430A pricing prospectus or an amendment shall contain
(i) a certificate in the following form, signed by the chief executive officer, the chief financial officer, and, on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer and chief financial officer, any person or company who is a promoter of the issuer and each person or company who is a guarantor of the securities to be distributed under the MJDS prospectus
The foregoing, together with the documents incorporated in this prospectus by reference as of the date of the prospectus providing the information permitted to be omitted from this prospectus, will constitute full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert if offering made in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.]
; and
(ii) if there is an underwriter, a certificate in the following form, signed by each underwriter who is in a contractual relationship with the issuer or selling securityholder for the securities distributed under the MJDS prospectus
To the best of our knowledge, information and belief, the foregoing, together with the documents incorporated in this prospectus by reference, as of the date of the prospectus providing the information permitted to be omitted from this prospectus, will constitute full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert
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if offering made in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
4.10 Certificates for Rule 430A Pricing Prospectus A rule 430A pricing prospectus shall contain in place of the certificates referred to in section 4.9
(a) a certificate in the following form, signed by the chief executive officer, the chief financial officer, and, on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer and chief financial officer, any person or company who is a promoter of the issuer and each person or company who is a guarantor of the securities distributed under the MJDS prospectus
The foregoing [insert, if applicable , together with the documents incorporated in this prospectus by reference,] constitutes full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert if offering made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.]
; and
(b) if there is an underwriter, a certificate in the following form, signed by each underwriter who is in a contractual relationship with the issuer or selling securityholder for securities distributed under the MJDS prospectus
To the best of our knowledge, information and belief, the foregoing [insert, if applicable , together with the documents incorporated in this prospectus by reference,] constitutes full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by [insert applicable references] [insert if offering also made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
4.11 Signing of Certificates by Agent Certificates contained in a preliminary MJDS prospectus, MJDS prospectus, amendment to a preliminary MJDS prospectus or MJDS prospectus, rule 415 prospectus supplement or rule 430A pricing prospectus shall be signed in accordance with securities legislation provided that any or all of the persons or companies required to sign a certificate may sign the certificate for a distribution made under this Instrument by an agent duly authorized in writing.
Part 5 Filing Procedures
5.1 Specification of Principal Jurisdiction At the time of filing a preliminary MJDS prospectus, the issuer shall send written notice to the securities regulatory authority and, unless the distribution is being made in Canada only, to the SEC, stating that the distribution is being made under the MJDS and specifying the principal jurisdiction.
5.2 Alternate Principal Jurisdiction If the securities regulatory authority in the jurisdiction specified in the notice sent under section 5.1 advises the issuer that it is not prepared to act as principal jurisdiction, the issuer shall specify another jurisdiction that is prepared to act as principal jurisdiction and notify the security regulatory authority in each jurisdiction in which the preliminary MJDS prospectus was filed and the SEC.
5.3 SEC Review If the SEC notifies an issuer that a filing made under the MJDS has been selected for review, the issuer shall notify the securities regulatory authority in the principal jurisdiction.
Part 6 Filing Documents
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6.1 Principal Jurisdiction The issuer shall file in the principal jurisdiction
(a) the preliminary MJDS prospectus, the MJDS prospectus, each amendment and supplement to the preliminary MJDS prospectus and MJDS prospectus, the rule 430A pricing prospectus and each rule 415 prospectus supplement used in Canada,
(b) all documents incorporated or deemed to be incorporated by reference in the MJDS prospectus, and
(c) all other documents required by this Instrument.
6.2 Canada-U.S. Offering If the distribution is being made in Canada and the United States of America, the issuer shall also file in the principal jurisdiction one unsigned copy of the registration statement and all amendments and exhibits to the registration statement in addition to the documents specified in section 6.1.
6.3 Non-Principal Jurisdictions In the jurisdictions other than the principal jurisdiction, the issuer shall file
(a) the preliminary MJDS prospectus, the MJDS prospectus, each amendment and supplement to the preliminary MJDS prospectus and MJDS prospectus, the rule 430A pricing prospectus and, subject to section 7.6, each rule 415 prospectus supplement used in Canada,
(b) all documents incorporated or deemed to be incorporated by reference in the MJDS prospectus, and
(c) all other documents required by this Instrument.
6.4 Certificate Regarding Eligibility Criteria At the time of filing a preliminary MJDS prospectus, an issuer shall file a certificate, signed on its behalf by a senior officer of the issuer, confirming that the issuer satisfies the applicable eligibility criteria.
6.5 Consents (1) The issuer shall file the written consent of an attorney, auditor, accountant, engineer, appraiser or any other person or company named as having prepared or certified any expertised statement as follows:
(a) if the expertised statement is in the preliminary MJDS prospectus, an amendment to the preliminary MJDS prospectus, the MJDS prospectus or a document incorporated by reference into the MJDS prospectus that was filed before the filing of the MJDS prospectus, the consent shall be filed at the time of filing the MJDS prospectus; and
(b) if the expertised statement is in an amendment to the MJDS prospectus, a rule 415 prospectus supplement, a rule 430A pricing prospectus, or a document incorporated by reference into a MJDS prospectus that was filed after the filing of the MJDS prospectus, the consent shall be filed at the time of filing the amendment, the rule 415 prospectus supplement, the rule 430A pricing prospectus or the document.
(2) Despite subsection (1), the filing requirements in paragraphs (1)(a) and (b) do not apply to the consent of a rating organization that issues a rating or provisional rating that is used in or in connection with a preliminary MJDS prospectus, an amendment to a preliminary MJDS prospectus, a MJDS prospectus, an amendment to a MJDS prospectus, a rule 415 prospectus supplement or a rule 430A pricing prospectus.
6.6 Further Consents If a change to the MJDS prospectus is material to the consent filed under subsection 6.5(1), the issuer shall file a further consent contemporaneously with the filing of the change to the MJDS prospectus.
6.7 Form of Consent The consent referred to in sections 6.5 and 6.6 shall be prepared in accordance with securities legislation.
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6.8 Reports on Property An issuer satisfies the requirement of securities legislation to file a report on the property of a natural resource company if it files a report prepared in accordance with U.S. federal securities law if a report is required to be filed with the SEC.
6.9 Appointment of Agent for Service At the time of filing of the MJDS prospectus, the issuer shall file a duly executed submission to jurisdiction and appointment of agent for service of process in the required form.
6.10 Powers of Attorney If a person or company signs a certificate by an agent under section 4.11, the issuer shall file a duly executed copy of the document authorizing the agent to sign the certificate not later than the time of filing the document in which the certificate is included.
6.11 Notification of Effectiveness If the securities distributed under this Instrument are also offered or sold in the United States of America, the issuer whose securities are being distributed under this Instrument shall notify in writing the principal jurisdiction once the related registration statement filed with the SEC has become effective.
6.12 Exhibits to Registration Statement An issuer shall file any exhibits to a registration statement requested by the securities regulatory authority in a non-principal jurisdiction.
6.13 Rule 415 Offerings A commercial copy of each MJDS prospectus and rule 415 prospectus supplement need not be refiled if it is used, without change, in distributions of additional tranches of securities.
6.14 French Language Documentation Not Required A preliminary MJDS prospectus and a MJDS prospectus in the French language need not be filed in Quebec for an offering of rights eligible to be made under paragraph 3.1(b), unless
(a) the issuer is a reporting issuer in Quebec other than solely as a result of one or more rights offerings made under paragraph 3.1(b); or
(b) 20 percent or more of the class of securities in respect of which the rights are issued is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
Part 7 Amendment and Supplement Procedures
7.1 Form of Amendment or Supplement (1) An issuer shall amend or supplement disclosure documents filed under this Instrument in accordance with U.S. federal securities law.
(2) The amending or supplementing document shall contain the legends and certificates required by this Instrument.
7.2 Modification or Amendment (1) If a registration statement is amended in a manner that modifies the related U.S. prospectus, an issuer shall file the documents containing the modification.
(2) If the receipt for the MJDS prospectus has not been issued and the filing has been made as a result of the occurrence of an adverse material change since the filing of the preliminary MJDS prospectus or an amendment to the preliminary MJDS prospectus, an issuer shall file the documents as an amendment to the preliminary MJDS prospectus.
7.3 Post-Effective Amendment If a modification is made to a U.S. prospectus by filing with the SEC a post-effective amendment to the registration statement, an issuer shall file an amendment to the MJDS prospectus.
7.4 Amendment to Additional Disclosure An issuer shall file an amendment in the event of an adverse material change in the additional disclosure contained only in the preliminary MJDS prospectus or a material change in the additional disclosure contained only in the MJDS prospectus.
7.5 Filing of Rule 415 Prospectus Supplement (1) An issuer shall file a rule 415 prospectus supplement.
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(2) A rule 415 prospectus supplement filed under subsection (1) shall be deemed to be incorporated into the MJDS prospectus as of the date of filing with the SEC, but only for the purpose of the distribution of the securities covered by the supplement.
7.6 Rule 415 Prospectus Supplement Not Filed Despite sections 6.3 and 7.5, an issuer is not required to file a rule 415 prospectus supplement in the local jurisdiction unless it is the principal jurisdiction, if
(a) the rule 415 prospectus supplement is used to describe the terms of a tranche of securities distributed under the MJDS prospectus, or is a preliminary form of the rule 415 prospectus supplement for use in marketing, and the securities covered by the supplement will not be distributed in the local jurisdiction; or
(b) the rule 415 prospectus supplement is used to establish an MTN program or other continuous offering program or to update disclosure for the program, and securities will not be distributed under the program in the local jurisdiction.
7.7 Filing of Rule 430A Pricing Prospectus An issuer shall file a rule 430A pricing prospectus.
7.8 Incorporation by Reference of Pricing Information The information contained in a rule 430A pricing prospectus that was omitted from the U.S. prospectus in accordance with Rule 430A under the 1933 Act and any other additional information that the issuer has elected to include in the rule 430A pricing prospectus in accordance with U.S. federal securities law shall be deemed to be incorporated by reference into the MJDS prospectus as of the date of the rule 430A pricing prospectus.
7.9 Filing of Revised U.S. Prospectus or Prospectus Supplement (1) If an issuer files with the SEC a revised U.S. prospectus, other than as an amendment to the related registration statement under rule 424(b) or another rule under the 1933 Act, or a prospectus supplement, to modify a U.S. prospectus, other than a U.S. prospectus for a rule 415 offering or a rule 430A offering, the issuer shall file the revised U.S. prospectus or prospectus supplement.
(2) The revised U.S. prospectus or prospectus supplement shall be deemed to be incorporated into the MJDS prospectus as of the date of the revised U.S. prospectus or prospectus supplement.
Part 8 Dissemination Requirements
8.1 General Subject to section 8.3, a preliminary MJDS prospectus, a MJDS prospectus and amendments and supplements to either shall be sent to offerees and purchasers in accordance with prospectus delivery requirements of securities legislation.
8.2 Prospectus Supplements All prospectus supplements applicable to the securities being distributed shall be attached to, or included with, the MJDS prospectus that is sent to offerees and purchasers of the securities.
8.3 Rule 430A Pricing Prospectus Instead of the related MJDS prospectus, a rule 430A pricing prospectus shall be sent to offerees and purchasers in accordance with prospectus delivery requirements of securities legislation.
8.4 Documents Incorporated by Reference Documents that are incorporated or deemed to be incorporated by reference into a preliminary MJDS prospectus or a MJDS prospectus, other than rule 415 prospectus supplements and rule 430A pricing prospectuses, shall be sent to offerees or purchasers if the documents are required to be sent to offerees or purchasers under U.S. federal securities law.
8.5 Provision of Documents Incorporated by Reference Documents incorporated by reference or deemed to be incorporated by reference shall be provided by the issuer to any person or company upon request without charge.
Part 9 Registration Requirements
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9.1 Rights offerings The dealer registration requirement does not apply to a trade made by a U.S. issuer in accordance with this Instrument of a right to purchase additional securities of its own issue issued by a U.S. issuer to its existing securityholders and of the securities issued upon the exercise of the right.
Part 10 Conflicts of Interest
10.1 Distributions of a Registrant, Connected Issuer or a Related Issuer The provisions of securities legislation that regulate conflicts of interest in connection with a distribution of securities of a registrant, a connected issuer of a registrant or a related issuer of a registrant that require specified disclosure in a preliminary prospectus or prospectus do not apply to a distribution under this Instrument.
Part 11 General
11.1 Representations as to Listing The prohibitions in securities legislation regarding representations as to the listing, posting for trading or quotation of securities or to an application having been made or to be made for the listing, posting for trading or quotation of securities do not apply to distributions made under this Instrument.
11.2 Solicitations of Expressions of Interest The prospectus requirement does not apply to solicitations of expressions of interest for the purchase of securities before the filing of a preliminary MJDS prospectus if
(a) the issuer or selling securityholder has entered into an enforceable agreement with an underwriter who has, or underwriters who have, agreed to purchase the securities;
(b) the agreement referred to in paragraph (a) has fixed the terms of the distribution and requires that the issuer file a preliminary MJDS prospectus for the securities and obtain a receipt for the preliminary MJDS prospectus from
(i) the regulator in at least one jurisdiction dated not more than two business days after the date that the agreement is entered into, and
(ii) the Canadian securities regulatory authorities in any other jurisdictions in which the distribution is to be made dated not more than three business days after the date that the agreement is entered into;
(c) immediately upon entering into the agreement the issuer issues and files a news release announcing the agreement;
(d) upon issuance of the receipt for the preliminary MJDS prospectus, a preliminary MJDS prospectus is sent to the person or company who has expressed an interest in acquiring the securities; and
(e) except as provided in paragraph (a), no agreement of purchase and sale for the securities is entered into until the MJDS prospectus has been filed and a receipt obtained.
11.3 Other Prospectus Requirements National Instrument 41-101 Prospectus Disclosure Requirements, National Instrument 43-101 Standards of Disclosure for Mineral Exploration and Development and Mining Properties, National Instrument 43-102 Guide for Engineers and Geologists Submitting Oil and Gas Reports and National Instrument 45-101 Rights Offerings do not apply to a distribution of securities under this Instrument.
Part 12 Bids for Securities of U.S. Issuers
12.1 General Eligibility Criteria (1) A bid may be made under this Instrument if
(a) the offeree issuer is a U.S. issuer;
(b) the offeree issuer is not registered or required to be registered as an investment company under the 1940 Act;
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(c) the offeree issuer is not a commodity pool issuer,
(d) the bid is subject to section 14(d) of the 1934 Act in the case of a take-over bid, or section 13(e) of the 1934 Act in the case of an issuer bid, and is not exempt from the 1934 Act;
(e) the bid is made to all holders of the class of securities in Canada and the United States of America;
(f) the bid is made to residents of Canada on the same terms and conditions as it is made to residents of the United States of America; and
(g) less than 40 percent of each class of securities that is the subject of the bid is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
(2) Subject to subsection (3), the calculation under paragraph (1)(g) shall be made as of the end of the offeree issuers last quarter before the date of filing the tender offer statement or issuer tender offer statement with the SEC or, if the quarter terminated within 60 days of the filing date, as of the end of the offeree issuers preceding quarter.
(3) If another bid for securities of the same class of the offeree issuer is in progress at the date of the filing, the calculation for the subsequent bid shall be made as of the same date as for the first bid already in progress.
(4) If a take-over bid is made without the prior knowledge of the directors of the offeree issuer who are not insiders of the offeror or acting jointly or in concert with the offeror, or upon informing the directors of the proposed bid the offeror has a reasonable basis for concluding that the bid is being regarded as a hostile bid by a majority of the directors, and in either case the offeror lacks access to the relevant list of securityholders of the offeree issuer, it will be conclusively presumed that paragraph (1)(g) is satisfied and paragraph (a) in the definition of foreign issuer is not satisfied, unless
(a) the aggregate published trading volume of the class on The Toronto Stock Exchange, The Montreal Exchange, the Vancouver Stock Exchange, the Alberta Stock Exchange and the Canadian Dealing Network Inc. exceeded the aggregate published trading volume of the class on national securities exchanges in the United States of America and Nasdaq for the 12 calendar month period before commencement of the bid or, if another bid for securities of the same class is in progress, the 12 calendar month period before commencement of the first bid already in progress;
(b) disclosure that paragraph (1)(g) was not satisfied or paragraph (a) of the definition of foreign issuer was satisfied had been made by the issuer in its Form 10-K most recently filed with the SEC under the 1934 Act; or
(c) the offeror has actual knowledge that paragraph (1)(g) is not satisfied or paragraph (a) of the definition of foreign issuer is satisfied.
12.2 MJDS Take-Over Bid Circular and MJDS Issuer Bid Circular (1) An offeror that makes a take-over bid or issuer bid under this Part shall file a MJDS take-over bid circular or MJDS issuer bid circular, respectively.
(2) A MJDS take-over bid circular, MJDS issuer bid circular, MJDS directors circular, MJDS directors or officers circular, a change to any of these documents or a variation to a MJDS take-over bid circular or a MJDS issuer bid circular, is a take-over bid circular, issuer bid circular, directors circular, individual directors or officers circular, a notice of change and a notice of variation, respectively, for purposes of securities legislation.
12.3 Securities Exchange Bids (1) A securities exchange bid may be made under this Instrument if
(a) the eligibility criteria set out in section 12.1 are satisfied;
(b) the offeror or, if the securities being offered are of another issuer, the other issuer, meets the eligibility criteria set out in subparagraphs 3.1(a)(i), (ii), (iv) and (v) and has filed with the SEC all 1934 Act filings for a period of 36 calendar months immediately before the filing of the registration statement with the SEC;
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(c) the offeror or, if the securities being offered are of another issuer, the other issuer, has had a class of its securities listed on the New York Stock Exchange or the American Stock Exchange or quoted on the NNM for a period of at least 12 calendar months immediately before the filing of the registration statement with the SEC and is in compliance with the obligations arising from the listing or quotation; and
(d) one of the following is satisfied:
(i) the equity shares of the offeror or, if the securities being offered are of another issuer, the other issuer, have a public float of not less than U.S. $75,000,000, determined as of a date within 60 days before the filing of the registration statement with the SEC;
(ii) the securities being offered are non-convertible debt having an investment grade rating or non-convertible preferred shares having an investment grade rating; or
(iii) the bid is an issuer bid made under this Instrument with securities of the issuer being offered as consideration.
(2) The dealer registration requirement does not apply to the trade of securities of an offeror or another issuer in a securities exchange issuer bid if the eligibility criteria in subsection (1) are met.
(3) The prospectus requirement does not apply to the distribution of securities of an offeror or another issuer in a securities exchange issuer bid if the eligibility criteria in subsection (1) are met and the offeror complies with the requirements of U.S. federal securities law applicable as a result of the consideration for the securities of the offeree issuer being at least in part securities of the offeror or other issuer.
12.4 Compliance with U.S. tender offer requirements (1) If an offeror makes a bid under this Part, the offeror shall comply with the requirements of
(a) sections 14(d) and 14(e) of the 1934 Act and Regulations 14D and 14E under the 1934 Act for a take-over bid made under this Instrument; and
(b) sections 13(e) and 14(e) of the 1934 Act and Regulations 13E and 14E under the 1934 Act for an issuer bid made under this Instrument.
(2) If the directors or an individual director or officer of an offeree issuer elects to comply with this Part instead of securities legislation otherwise applicable in preparation of a directors circular or individual directors or officers circular for a take-over bid made under this Part, each person so electing shall comply with sections 14(d) and 14(e) of the 1934 Act and Regulations 14D and 14E under the 1934 Act.
12.5 Form and Content of Bid Documents (1) A MJDS take-over bid circular or a MJDS issuer bid circular shall contain the additional information, legends and certificates required by this section.
(2) The U.S. prospectus forming part of the registration statement filed with the SEC for a securities exchange bid shall be included in, or incorporated by reference into, the MJDS take-over bid circular or MJDS issuer bid circular.
(3) If an offeror makes a take-over bid under this Part and the directors or an individual director or officer elects to comply with this Part, instead of the securities legislation otherwise applicable, the directors shall prepare a MJDS directors circular and an individual director or officer may prepare a MJDS directors or officers circular, in each case, that contains the additional information, legends and certificates required by this section.
(4) The following statements shall be printed on the outside front cover page, or on a sticker on that page, of a MJDS take-over bid circular or MJDS issuer bid circular
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(a) This bid is made in Canada [for applicable securities exchange bids by a U.S. issuer] for securities of a U.S. issuer in accordance with U.S. federal securities laws. Securityholders should be aware that the U.S. requirements applicable to the bid may differ from those of [insert the names of the provinces and territories where bid is made]. [For securities exchange bids, also insert the following The financial statements included or incorporated by reference in this bid circular have not been prepared in accordance with Canadian generally accepted accounting principles and thus may not be comparable to financial statements of Canadian issuers.]
(b) [All of] [Certain of] the directors and officers of the offeror and [all of] [certain of] the experts named in this bid circular reside outside of Canada. [[Substantially] all of the assets of these persons and of the offeror may be located outside of Canada.] The offeror has appointed [name and address of agent for service] as its agent for service of process in Canada, but it may not be possible for securityholders to effect service of process within Canada upon the directors, officers and experts referred to above. It may also not be possible to enforce against the offeror, its directors and officers and [certain of] the experts named in this bid circular judgments obtained in Canadian courts predicated upon the civil liability provisions of applicable securities laws in Canada.
(5) The legend contained in paragraph 4(b) is not required if the offeror is incorporated or organized under the laws of Canada or a jurisdiction.
(6) An offeror shall include the following statement in a MJDS take-over bid circular or MJDS issuer bid circular
Securities legislation in certain of the provinces [and territories] of Canada provides securityholders of the offeree issuer with, in addition to any other rights they may have at law, remedies for rescission [or [, in some jurisdictions,] damages if a circular or notice that is required to be delivered to such securityholders contains a misrepresentation or is not delivered to the securityholder, provided that such remedies for rescission [or damages] are exercised by the securityholder within the time limit prescribed by the securities legislation of the securityholders province or territory. The securityholder should refer to the applicable provisions of the securities legislation of the securityholders province [or territory] for particulars of these rights or consult with a legal adviser. Rights and remedies also may be available to securityholders under U.S. law; securityholders may wish to consult with a U.S. legal adviser for particulars of these rights.
(7) A MJDS take-over bid circular, MJDS issuer bid circular, MJDS directors circular or MJDS directors or officers circular need not contain disclosure relevant only to U.S. securityholders.
12.6 Incorporation by Reference Except as otherwise provided in this Instrument, documents incorporated or deemed to be incorporated by reference into a tender offer statement, issuer tender offer statement or tender offer solicitation/ recommendation statement under U.S. federal securities law shall be, and are deemed to be, incorporated by reference into a MJDS take-over bid circular, MJDS issuer bid circular, MJDS directors circular or MJDS directors or officers circular.
12.7 Statements Modified or Superseded (1) A statement in a document incorporated or deemed to be incorporated by reference into a MJDS take-over bid circular, a MJDS issuer bid circular, a MJDS directors circular or a MJDS directors or officers circular shall be deemed to be modified or superseded, for the purposes of the applicable circular, to the extent that a statement in the MJDS take-over bid circular, the MJDS issuer bid circular, the MJDS directors circular or the MJDS directors or officers circular, or in any other subsequently filed document that also is or is deemed to be incorporated by reference into the applicable circular modifies or supersedes the statement.
(2) The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information in the document that it modifies or supersedes.
(3) The making of a modifying or superseding statement shall not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission
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to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.
(4) A statement so modified or superseded shall not be deemed in its unmodified or superseded form to constitute part of the MJDS take-over bid, the MJDS issuer bid circular, the MJDS directors circular or the MJDS directors or officers circular.
(5) If documents are incorporated by reference into a MJDS take-over bid circular, a MJDS issuer bid circular, a MJDS directors circular or a MJDS directors or officers circular, the section that provides information about incorporation by reference shall include a statement that information has been incorporated by reference from documents filed with securities regulatory authorities in each jurisdiction in Canada in which the documents have been filed and shall state the name, address and telephone number of a person in Canada or the United States of America from whom copies of the documents may be obtained on request without charge.
12.8 Reconciliation of Financial Statements A MJDS take-over bid circular or a MJDS issuer bid circular for a securities exchange bid that satisfies the eligibility criteria of subsection 12.3(1) is not subject to the requirement of securities legislation to reconcile to Canadian GAAP the financial statements included in, or incorporated by reference into, the bid circular.
12.9 Certificates (1) A MJDS take-over bid circular shall contain a certificate in the following form signed by the chief executive officer and the chief financial officer of the offeror and, on behalf of the board of directors, by any two directors of the offeror other than the chief executive officer and chief financial officer, and each person or company that is a promoter of the offeror or a guarantor of the securities being offered in a securities exchange bid:
The foregoing [, together with documents incorporated by reference,] contains no untrue statement of a material fact and does not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made.
(2) A MJDS issuer bid circular shall contain a certificate in the form set out in subsection (1) signed by the chief executive officer and the chief financial officer of the issuer and, on behalf of the board of directors, by any two directors of the issuer other than the chief executive officer and chief financial officer, and each person or company that is a promoter of the issuer or a guarantor of the securities being offered in a securities exchange bid.
(3) A MJDS directors circular shall contain a certificate in the form set out in subsection (1) signed on behalf of the board of directors by any two directors of the issuer.
(4) A MJDS directors or officers circular shall contain a certificate in the form set out in subsection (1) signed by each director or officer sending the circular.
(5) The certificate for notices of variation and notices of change shall be in the form set out in subsection (1), amended to refer to the initial MJDS take-over bid circular or MJDS issuer bid circular and all notices of variation or change to the MJDS take-over bid circular or MJDS issuer bid circular.
(6) Any or all of the persons required to sign a certificate under subsections (1), (2), (3), (4) or (5) may sign by an agent duly authorized in writing.
12.10 Bid Circular Filing Procedures (1) If an offeror makes a bid under this Instrument, the offeror shall file
(a) the tender offer statement or issuer tender offer statement and all exhibits and amendments to the tender offer statement or issuer tender offer statement,
(b) the MJDS take-over bid circular or MJDS issuer bid circular,
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(c) a certificate of the offeror, signed on its behalf by a senior officer, confirming that the eligibility criteria set forth in subsection 12.1(1) and, if applicable, section 12.3 are satisfied and that the circular has been prepared in accordance with U.S. federal securities law,
(d) the written consent of an attorney, auditor, accountant, engineer, appraiser or any other person or company who is named as having prepared or certified any expertised statement in any document filed under this section or section 12.14,
(e) a submission to jurisdiction and appointment of agent for service of process duly executed by the offeror in section 2 of the required form, and
(f) if a person or company signs a certificate by an agent under subsection 12.9(6), a duly executed copy of the document authorizing the agent to sign the certificate.
(2) Despite subsection (1), the filing requirement in paragraph (1)(d) does not apply to the consent of a rating organization that issues a rating or provisional rating that is used in or in connection with a MJDS take-over bid circular or MJDS issuer bid circular.
12.11 Notification to Offeree Issuer An offeror filing a MJDS take-over bid circular shall so notify the offeree issuer at its principal office not later than the business day following the day the MJDS take-over bid circular is filed.
12.12 French Language Documentation Not Required A MJDS take-over bid circular or MJDS issuer bid circular in the French language is not required to be filed in Quebec unless
(a) the offeree issuer is a reporting issuer in Quebec; or
(b) 20 percent or more of the class of securities that is the subject of the bid is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
12.13 MJDS Directors Circulars and MJDS Directors or Officers Circulars If an offeror makes a take-over bid under this Part, and the directors or an individual director or officer of the offeree issuer elects to comply with this Instrument in preparation of a directors circular or individual directors or officers circular instead of securities legislation otherwise applicable, the directors or an individual director or officer who so elects shall file
(a) the tender offer solicitation/recommendation statement and all exhibits or amendments to that statement,
(b) the MJDS directors circular or MJDS directors or officers circular,
(c) a statement by the directors or an individual director or officer that the circular has been prepared in accordance with U.S. federal securities law,
(d) the written consent of an attorney, auditor, accountant, engineer, appraiser or any other person or company who is named as having prepared or certified an expertised statement contained in the MJDS directors circular or MJDS directors or officers circular, and
(e) if a person signs a certificate by an agent under subsection 12.9(3), a duly executed copy of the document authorizing the agent to sign the certificate.
12.14 Securities Exchange Bids In the case of a securities exchange bid made under section 12.3 for which a registration statement is filed with the SEC, the offeror shall file contemporaneously with the filing of the bid circular the registration statement and all exhibits and amendments to the registration statement, together with all documents incorporated by reference into the registration statement.
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12.15 Notice of Variation and Notice of Change (1) Documents filed under this Part shall be changed or varied in accordance with U.S. federal securities law as additional tender offer materials, but the additional tender offer materials shall contain the legends and certificates required by this Part.
(2) An offeror shall file additional tender offer materials that vary the terms of the bid as a notice of variation and identify the materials as such.
(3) An offeror shall file additional tender offer materials that change the information in the tender offer materials or previous additional tender offer materials, other than information about a variation in the terms of the bid, as a notice of change and identify the materials as such.
(4) Additional tender offer materials required to be filed as a notice of variation and a notice of change shall be filed as both a notice of variation and a notice of change and identified as such.
(5) The directors or an individual director or officer of an offeror issuer shall file additional materials prepared by the directors or an individual director or officer as a notice of change.
(6) If a person or company signs a certificate by an agent under subsection 12.9(6), an offeror shall file a duly executed copy of a document authorizing an agent to sign a certificate.
(7) If a change to a MJDS take-over bid circular or MJDS issuer bid circular is material to the consent filed under paragraph 12.10(1)(d), an offeror shall file a further consent contemporaneously with the filing of the change to the MJDS take-over bid circular or MJDS issuer bid circular.
(8) If a change to a MJDS directors circular or MJDS directors or officers circular is material to the consent filed under paragraph 12.13(d), the directors in the case of a MJDS directors circular or the director or officer sending the circular in the case of a MJDS directors or officers circular shall file a further consent contemporaneously with the filing of the change to a MJDS directors circular or MJDS directors or officers circular.
12.16 Dissemination Requirements (1) An offeror shall send a MJDS take-over bid circular, MJDS issuer bid circular, a notice of change and a notice of variation to each securityholder whose last address as shown on the books of the offeree issuer is in the local jurisdiction.
(2) Despite subsection (1), a notice of change or a notice of variation shall be sent only to those securityholders whose securities were not taken up at the date of the occurrence of the change or variation.
(3) An offeree issuer shall send a MJDS directors circular, MJDS directors or officers circular and a notice of change to the MJDS directors circular or MJDS directors or officers circular to every person or company to whom a MJDS take-over bid circular is required to be sent under subsections (1) and (2).
(4) Documents referred to in subsections (1) and (3) that are sent or given to securityholders resident in the United States of America shall be sent by the offeror or offeree issuer as appropriate to each securityholder whose last address as shown on the books of the offeree issuer is in the local jurisdiction as soon as practicable following the time they are sent or given to securityholders resident in the United States of America.
(5) Documents referred to in subsections (1) and (3) that are published by long form or summary publication in the United States of America shall be sent by the offeror or offeree issuer as appropriate to each securityholder whose last address as shown on the books of the offeree issuer is in the local jurisdiction as soon as practicable following publication.
(6) Documents that are incorporated or deemed to be incorporated by reference into documents filed under this Part shall be sent to each securityholder whose last address as shown on the books of the offeree issuer is in the local jurisdiction if those documents are required to be sent to securityholders under U.S. federal securities law.
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(7) Documents incorporated or deemed to be incorporated by reference shall be provided to any person or company upon request without charge by the person or company that filed the documents into which the documents are incorporated or deemed to be incorporated by reference.
Part 13 Business Combinations
13.1 Eligibility Criteria (1) This Part may be used for the distribution of securities of a successor issuer in connection with a business combination if
(a) each person or company participating in the business combination meets the eligibility criteria specified in subparagraphs 3.1(a)(i), (iv) and (v) and, other than participating persons or companies that are specified predecessors, subparagraphs 3.1(a)(ii) and 3.1(b)(ii);
(b) the equity shares of each person or company participating in the business combination, other than a specified predecessor, have a public float of not less than U.S. $75,000,000, determined as of a date within 60 days before the filing of the preliminary MJDS prospectus with the principal jurisdiction;
(c) each person or company participating in the business combination, other than a specified predecessor, has had a class of its securities listed on the New York Stock Exchange or the American Stock Exchange or quoted on the NNM for a period of at least 12 calendar months immediately preceding the filing of the preliminary MJDS prospectus in the principal jurisdiction and is in compliance with the obligations arising from the listing or quotation;
(d) the issue or exchange of securities in the business combination is made to residents of Canada on the same basis, terms and conditions as it is made to residents of the United States of America; and
(e) less than 40 percent of the class of securities to be distributed in the business combination by the successor issuer will be distributed to persons or companies whose last address as shown on the books of the participating person or company is in Canada.
(2) The requirement in paragraph (1)(b) may be satisfied for a participating person or company whose securities were the subject of a bid made under or eligible to have been made under this Instrument that terminated within the preceding 12 months if the requirement would have been satisfied immediately before commencement of the bid.
(3) The calculation in paragraph 1(e) shall be made
(a) for each participating person or company as of the end of the participating persons or companys last quarter before the date of filing of the preliminary MJDS prospectus in the principal jurisdiction or, if that quarter terminated within 60 days of the filing date, as of the end of the participating persons or companys preceding quarter; and
(b) on the basis that all persons or companies that have an option in respect of the consideration to be received under the business combination elect the option that would result in the issuance of the greatest number of securities.
13.2 Form and Content of Disclosure Documents and Procedures (1) If the eligibility criteria set forth in section 13.1 are satisfied, securities may be distributed under this Part in connection with a business combination by complying with the requirements set out in Part 4, other than section 4.6, Parts 5 through 9 and Part 11.
(2) If securities are being distributed under this Part in connection with a business combination, the disclosure documents prepared for the business combination shall be filed as a MJDS prospectus and, if proxies will be solicited from holders of voting securities of the issuer and the issuer is a reporting issuer in the local jurisdiction, as an information circular.
Part 14 Material Change Reporting
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14.1 News Release A U.S. issuer that has a class of securities listed on the New York Stock Exchange or the American Stock Exchange or quoted on Nasdaq satisfies the requirement of securities legislation to issue and file a news release upon the occurrence of a material change in its affairs by
(a) complying with the requirements of the exchange on which its securities are listed or Nasdaq, as applicable, for making public disclosure of material information on a timely basis; and
(b) immediately issuing in Canada and filing each news release disclosed by it for the purpose of complying with the requirements referred to in paragraph (a).
14.2 Material Change Reports A U.S. issuer that has a class of securities registered under section 12 of the 1934 Act or is required to file reports under section 15(d) of the 1934 Act satisfies the requirement of securities legislation to file a material change report upon the occurrence of a material change in its affairs by
(a) complying with the requirements of U.S. federal securities law relating to current reports; and
(b) filing the current report filed with the SEC.
Part 15 Financial Statements, Annual Information Forms and Managements
Discussion and Analysis of Financial Condition and Results of Operations
15.1 Financial Statements A U.S. issuer that has a class of securities registered under section 12 of the 1934 Act or is required to file reports under section 15(d) of the 1934 Act satisfies the requirements of securities legislation relating to the preparation, certification, filing and sending of interim financial statements, and annual financial statements and auditors reports thereon by
(a) complying with the requirements of U.S. federal securities law relating to quarterly reports and annual reports;
(b) filing the quarterly reports and annual reports filed with the SEC; and
(c) either
(i) sending each financial statement included in the report required to be filed under paragraph (b) to each securityholder whose last address as shown on the books of the reporting issuer is in the local jurisdiction in the manner and at the time required by U.S. federal securities law if
(A) the issuer is a reporting issuer solely as a result of a distribution or securities exchange bid made under this Instrument;
(B) the issuer meets the eligibility requirements in paragraph 3.1(c); or
(C) the issuer meets the eligibility requirements in subparagraphs 3.1(a)(i) to (v) and the issuer is a reporting issuer solely as the result of the distribution of securities that had an investment grade rating and met the eligibility requirements of subparagraph 3.1(a)(vi) at the time of distribution; or
(ii) sending each financial statement included in the report required to be filed under paragraph (b) to each securityholder whose last address as shown on the books of the issuer is in the local jurisdiction in the manner and at the time required by securities legislation other than this Instrument.
15.2 Annual Reports, Annual Information Forms and Managements Discussion and Analysis A U.S. issuer that has a class of securities registered under section 12 of the 1934 Act or that is required to file reports under section 15(d) of the 1934 Act satisfies the requirements of securities legislation to file annual reports, annual information forms and managements discussion and analysis of financial condition and results of operations by
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(a) complying with the requirements of U.S. federal securities law relating to annual reports, quarterly reports and managements discussion and analysis;
(b) filing the annual report and quarterly report filed with the SEC; and
(c) sending the annual report to each securityholder whose last address as shown on the books of the reporting issuer is in the local jurisdiction in the manner and at the time required by U.S. federal securities law.
Part 16 Proxies and Proxy Solicitation
16.1 Proxy Solicitation by a U.S. Issuer A U.S. issuer that has a class of securities registered under section 12 of the 1934 Act satisfies the requirements of securities legislation relating to information circulars, proxies and proxy solicitation by
(a) complying with the requirements of U.S. federal securities law relating to proxy statements, proxies and proxy solicitation;
(c) filing all material relating to the meeting that is filed with the SEC; and
(d) sending each document filed under paragraph (b) to each securityholder whose last address as shown on the books of the reporting issuer is in the local jurisdiction in the manner and at the time required by U.S. federal securities law.
16.2 Proxy Solicitation by Another Person or Company A person or company other than the issuer satisfies the requirements of securities legislation relating to proxies and proxy solicitation with respect to a U.S. issuer that has a class of securities registered under section 12 of the 1934 Act by fulfilling the requirements of paragraphs 16.1(a), (b) and (c).
16.3 Determination of Eligibility If a proxy solicitation is made under section 16.2 and the person or company soliciting proxies lacks access to the relevant list of securityholders of the issuer, it will be conclusively presumed that paragraph (a) of the definition of foreign issuer is not satisfied, unless
(a) the aggregate published trading volume of the class on The Toronto Stock Exchange, The Montreal Exchange, the Vancouver Stock Exchange, the Alberta Stock Exchange and the Canadian Dealing Network Inc. exceeded the aggregate published trading volume of the class on national securities exchanges in the United States of America and Nasdaq for the 12 calendar month period before commencement of the proxy solicitation or, if another proxy solicitation for securities of the same class is in progress, the 12 calendar month period before commencement of the first proxy solicitation already in progress;
(b) disclosure that paragraph (a) of the definition of foreign issuer was satisfied had been made by the issuer in its Form 10-K most recently filed with the SEC under the 1934 Act; or
(c) the person or company soliciting proxies has actual knowledge that paragraph (a) of the definition of foreign issuer is satisfied.
Part 17 Insider Reporting
17.1 Insider Reporting The insider report filing requirement does not apply to an insider of a U.S. issuer that has a class of securities registered under section 12 of the 1934 Act if the insider
(a) complies with the requirements of U.S. federal securities law regarding insider reporting; and
(b) files with the SEC any insider report required to be filed with the SEC under section 16(a) of the 1934 Act and the rules and regulations under the 1934 Act.
Part 18 Communication with Beneficial Owners of Securities of a Reporting Issuer
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18.1 Communication with Beneficial Owners of Securities of a Reporting Issuer A U.S. issuer satisfies the requirements of securities legislation relating to communications with, delivery of materials to and conferring voting rights upon non-registered holders of its securities who hold their interests in the securities through one or more intermediaries by
(a) complying with the requirements of Rule 14a-13 under the 1934 Act for any Canadian clearing agency and any intermediary whose last address as shown on the books of the issuer is in the local jurisdiction; and
(b) complying with the requirements of National Policy Statement No. 41 or any successor instrument to that national policy statement with respect to fees payable to intermediaries, for any Canadian clearing agency and any intermediary whose last address as shown on the books of the issuer is in the local jurisdiction.
Part 19 Trust Indenture Requirements
19.1 Trust Indenture Requirements The requirements of the legislation of the local jurisdiction applicable to trust indentures, for debt outstanding or guaranteed under the indenture, including a requirement that a person or company appointed as a trustee under a trust indenture be resident or authorized to do business in the local jurisdiction, do not apply to distributions made under this Instrument, if
(a) the trust indenture under which the obligations are issued or guaranteed is subject to and complies with the Trust Indenture Act of 1939 of the United States of America; and
(b) at least one person or company appointed as trustee under the trust indenture
(i) is resident in the local jurisdiction,
(ii) is authorized to do business in the local jurisdiction, or
(iii) has filed a duly executed submission to jurisdiction and appointment of agent for service of process in section 3 of the required form.
Part 20 Financial Disclosure
20.1 Financial Disclosure National Instruments 52-101 Future-Oriented Financial Information, 52-102 Use of Currencies, 52-103 Change of Auditor, 52-104 Basis of Accounting, Auditing and Reporting and 52-105 Change in the Ending Date of a Financial Year do not apply to a U.S. issuer distributing securities or making a bid or filings in accordance with this Instrument.
Part 21 Exemptions
21.1 Exemption (1) The regulator or the securities regulatory authority may grant an exemption to this Instrument, in whole or in part, subject to such conditions or restrictions as may be imposed in the exemption.
(2) Despite subsection (1), in Ontario, only the regulator may grant such an exemption.
(3) Despite subsection (1), in Alberta, only the regulator may grant such an exemption.
(4) An application made to the securities regulatory authority or regulator for an exemption from this Instrument shall include a letter or memorandum describing the matters relating to the exemption, and indicating why consideration should be given to the granting of the exemption.
21.2 Evidence of Exemption Without limiting the manner in which an exemption under section 21.1 may be evidenced, the issuance by the regulator of a receipt for a MJDS prospectus or an amendment to a MJDS prospectus is evidence of the granting of the exemption if
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(a) the person or company that sought the exemption sent to the regulator the letter or memorandum referred to in subsection 21.1(4)
(i) on or before the date of filing of the preliminary MJDS prospectus, or
(ii) after the date of filing of the preliminary MJDS prospectus and received a written acknowledgement from the regulator that the exemption may be evidenced by the issuance of a receipt for the MJDS prospectus or an amendment to the MJDS prospectus; and
(b) the regulator has not sent notice of refusal to grant the exemption to the person or company that sought the exemption before, or concurrent with, the issue of the receipt for the MJDS prospectus.
Part 22 Effective Date
22.1 Effective Date This Instrument comes into force on November 1, 1998.
Appendix A Method 1 for Prospectus Certificates for Rule 415 Offerings
Method 1 Forward Looking Certificates to be Included in a MJDS Prospectus for a Rule 415 Offering or Supplement Establishing an MTN Program or Other Continuous Distribution
Part 1 MJDS Prospectus for a Rule 415 Offering
1.1 Certificate of Issuer and Promoter If a MJDS prospectus for a rule 415 offering establishes an MTN program or other continuous distribution, or if method 2 has not been elected by an issuer, the preliminary MJDS prospectus and the MJDS prospectus for a rule 415 offering shall contain a certificate in the following form signed by
(a) the chief executive officer and the chief financial officer of the issuer;
(b) on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer or chief financial officer, duly authorized to sign; and
(c) any person or company who is a promoter of the issuer:
This MJDS prospectus, together with the documents incorporated in this prospectus by reference, will, as of the date of each supplement to this prospectus, constitute full, true and plain disclosure of all material facts relating to the securities offered by this MJDS prospectus and the supplement as required by [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed]..
1.2 Underwriters Certificates A preliminary MJDS prospectus and a MJDS prospectus for a rule 415 offering shall contain an underwriters certificate in the following form signed by each underwriter who, at the time of filing, is, or it is known will be, in a contractual relationship with the issuer or selling securityholder for the securities to be distributed under the MJDS prospectus, if
(a) the MJDS prospectus establishes an MTN program or other continuous distribution; or
(b) method 2 has not been elected by the underwriter:
To the best of our knowledge, information and belief, this short form prospectus, together with the documents incorporated in this prospectus by reference will, as of the date of each supplement to this prospectus, constitute full, true and plain disclosure of all material facts relating to the securities offered under this prospectus and the supplement as required by [insert name of each jurisdiction in which qualified] [insert if distribution made
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in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed]..
1.3 Guarantors Certificate A preliminary MJDS prospectus and a MJDS prospectus for a rule 415 offering shall contain a certificate in the form described in section 1.1 signed by a guarantor of the securities to be distributed under the MJDS prospectus, if
(a) this Instrument requires a prospectus certificate of the guarantor; and
(b) either
(i) the MJDS prospectus establishes an MTN program or other continuous distribution, or
(ii) method 2 has not been elected by the guarantor.
1.4 Amendments (1) An amendment to a MJDS prospectus for a rule 415 offering or an amended and restated MJDS prospectus shall, subject to subsection (2), contain
(a) the certificates required under section 1.1 to be included in a MJDS prospectus, if the MJDS prospectus contains an issuers certificate in the form described in section 1.1;
(b) the certificates required under section 1.2 to be included in a MJDS prospectus, if the MJDS prospectus contains an underwriters certificate in the form described in section 1.2; and
(c) the certificate required under section 1.3 to be included in a MJDS prospectus, if the MJDS prospectus contains a guarantors certificate in the form described in section 1.3.
(2) In each certificate required under subsection (1), the reference to this MJDS prospectus shall be omitted and replaced by
(a) in the case of an amendment to a MJDS prospectus, the MJDS prospectus dated [insert date] as amended by this amendment; and
(b) in the case of an amended and restated MJDS prospectus, this amended and restated MJDS prospectus.
Part 2 MJDS Prospectus Supplements establishing a MTN Program
2.1 Certificate of Issuer and Promoter If an issuers certificate in the form described in section 1.1 was not included in the corresponding MJDS prospectus, a MJDS prospectus supplement that establishes a MTN program or other continuous distribution shall contain a certificate in the following form signed by
(a) the chief executive officer and the chief financial officer of the issuer;
(b) on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer or chief financial officer, duly authorized to sign; and
(c) any person or company who is a promoter of the issuer:
The MJDS prospectus together with the documents incorporated in the prospectus, as supplemented by the foregoing, will, as of the date of each supplement to the MJDS prospectus, constitute full, true and plain disclosure of all material facts relating to the securities offered under the MJDS prospectus and by the supplement as required by [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
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2.2 Underwriters Certificates A MJDS prospectus supplement that establishes an MTN program or other continuous distribution shall contain a certificate in the following form signed by each underwriter who
(a) is in a contractual relationship with the issuer or selling securityholder for the securities being distributed under the MJDS prospectus supplement; and
(b) did not sign and include in the corresponding MJDS prospectus a certificate in the form described in section 1.2:
To the best of our knowledge, information and belief, the MJDS prospectus together with the documents incorporated in the prospectus, as supplemented by the foregoing, will, as of the date of each supplement to the MJDS prospectus, constitute full, true and plain disclosure of all material facts relating to the securities offered under the MJDS prospectus and by the supplement as required by [insert name of jurisdiction in which qualified] [insert if distribution made in Quebec and will not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
2.3 Guarantors Certificate A MJDS prospectus supplement that establishes an MTN program or other continuous distribution shall contain a certificate in the form described in section 2.1 signed by a guarantor of the securities being distributed under the MJDS prospectus supplement, if
(a) this Instrument requires a prospectus certificate of the guarantor; and
(b) a prospectus certificate of the guarantor in the form described in section 1.3 was not included in the corresponding MJDS prospectus.
2.4 Amendments (1) An amendment to a MJDS prospectus supplement or an amended and restated MJDS prospectus supplement that establishes an MTN program or other continuous distribution shall, subject to subsection (2), contain
(a) the certificates required under section 2.1 to be included in a MJDS prospectus supplement, if the MJDS prospectus supplement contains an issuers certificate in the form described in section 2.1;
(b) the certificates required under section 2.2 to be included in a MJDS prospectus supplement, if the MJDS prospectus supplement contains an underwriters certificate in the form described in section 2.2; and
(c) the certificate required under section 2.3 to be included in a MJDS prospectus supplement, if the MJDS prospectus supplement contains a guarantors certificate in the form described in section 2.3.
(2) In each certificate required under subsection (1), the reference to this MJDS prospectus supplement shall be omitted and replaced by
(a) in the case of an amendment to a MJDS prospectus supplement, the MJDS prospectus supplement dated [insert date] as amended by this amendment; and
(b) in the case of an amended and restated MJDS prospectus supplement, this amended and restated MJDS prospectus supplement.
Appendix B Method 2 for Prospectus Certificates for Rule 415 Offerings
Method 2: Non-forward Looking Prospectus Certificates to be Included in Both a MJDS Prospectus and Supplement
Part 1 MJDS Prospectus for a Rule 415 Offering
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1.1 Certificate of Issuer and Promoter If method 2 is elected by an issuer, a preliminary MJDS prospectus and a MJDS prospectus shall contain a certificate in the following form signed by
(a) the chief executive officer and the chief financial officer of the issuer;
(b) on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer or chief financial officer, duly authorized to sign; and
(c) any person or company who is a promoter of the issuer:
This MJDS prospectus, together with the documents incorporated in this prospectus, constitutes full, true and plain disclosure of all material facts relating to the securities as required by the securities laws of [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
1.2 Underwriters Certificates A preliminary MJDS prospectus and a MJDS prospectus for a rule 415 offering shall contain an underwriters certificate in the following form signed by each underwriter who
(a) at the time of filing, is, or it is known will be, in a contractual relationship with the issuer or selling securityholder for the securities to be distributed under the MJDS prospectus; and
(b) elects method 2:
To the best of our knowledge, information and belief, the MJDS prospectus, together with the documents incorporated in the prospectus, constitutes full, true and plain disclosure of all material facts relating to the securities as required by [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
1.3 Guarantors Certificate A MJDS prospectus shall contain a certificate in the form described in section 1.1 signed by a guarantor of the securities to be distributed under the MJDS prospectus, if
(a) this Instrument requires a prospectus certificate of the guarantor; and
(b) method 2 is elected by the guarantor.
1.4 Amendments (1) An amendment to a MJDS prospectus or an amended and restated MJDS prospectus shall, subject to subsection (2), contain
(a) the certificates required under section 1.1 to be included in a MJDS prospectus, if the issuer has elected method 2;
(b) the certificate described in section 1.2 signed by each underwriter who
(i) at the time of filing the amendment or the amended and restated MJDS prospectus, is, or it is known will be, in a contractual relationship with the issuer or selling securityholder for the securities to be distributed under the MJDS prospectus, and
(ii) has elected method 2; and
(c) the certificate required under section 1.3 to be included in a MJDS prospectus, if the MJDS prospectus contains a guarantors certificate in the form described in section 1.3.
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(2) In each certificate required under subsection (1), the reference to this MJDS prospectus shall be omitted and replaced by
(a) in the case of an amendment to a MJDS prospectus, the MJDS prospectus dated [insert date] as amended by this amendment; and
(b) in the case of an amended and restated MJDS prospectus, this amended and restated MJDS prospectus.
Part 2 MJDS Prospectus Supplement
2.1 Certificate of Issuer and Promoter If method 2 is elected by an issuer, each MJDS prospectus supplement shall contain a certificate in the following form signed by
(a) the chief executive officer and the chief financial officer of the issuer;
(b) on behalf of the board of directors of the issuer, any two directors of the issuer, other than the chief executive officer or chief financial officer, duly authorized to sign; and
(c) any person or company who is a promoter of the issuer:
The MJDS prospectus, together with the documents incorporated in the prospectus, as supplemented by the foregoing, constitutes full, true and plain disclosure of all material facts relating to the securities offered under the MJDS prospectus and this supplement as required by [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
2.2 Underwriters Certificates Each MJDS prospectus supplement shall contain a certificate in the following form signed by each underwriter who
(a) is in a contractual relationship with the issuer or selling securityholder for the securities being distributed under the supplement; and
(b) has elected method 2:
To the best of our knowledge, information and belief, the MJDS prospectus, together with the documents incorporated in the prospectus, as supplemented by the foregoing, constitutes full, true and plain disclosure of all material facts relating to the securities offered under the MJDS prospectus and this supplement as required by [insert name of each jurisdiction in which qualified] [insert if distribution made in Quebec and does not contain any misrepresentation likely to affect the value or the market price of the securities to be distributed.].
2.3 Guarantors Certificate Each MJDS prospectus supplement shall contain a certificate in the form described in section 2.1 signed by a guarantor of the securities being distributed under the MJDS prospectus supplement, if
(a) this Instrument requires a prospectus certificate of the guarantor; and
(b) method 2 is elected by the guarantor.
2.4 Amendments (1) An amendment to a MJDS prospectus supplement or an amended and restated MJDS prospectus supplement shall, subject to subsection (2), contain
(a) the certificates required under section 2.1 to be included in a MJDS prospectus supplement, if the MJDS prospectus supplement contains an issuers certificate in the form described in section 2.1;
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(b) the certificate described in section 2.2 signed by each underwriter who
(i) at the time of filing the amendment or the amended and restated MJDS prospectus supplement, is in a contractual relationship with the issuer or selling securityholder for the securities being distributed under the MJDS prospectus supplement, and
(ii) has elected method 2; and
(c) the certificate required under section 2.3 to be included in a MJDS prospectus supplement, if the MJDS prospectus supplement contains a guarantors certificate in the form described in section 2.3.
(2) In each certificate required under subsection (1), the reference to this MJDS prospectus supplement shall be omitted and replaced by
(a) in the case of an amendment to a MJDS prospectus supplement, the MJDS prospectus supplement dated [insert date] as amended by this amendment; and
(b) in the case of an amended and restated MJDS prospectus supplement, this amended and restated MJDS prospectus supplement.
Form 71-101F1 Forms of Submission to Jurisdiction and Appointment of Agent for Service of Process
1. MJDS Prospectus Distribution of Securities
1. Name of issuer (the Issuer):
2. Jurisdiction of incorporation of Issuer:
3. Address of principal place of business of Issuer:
4. Description of securities (the Securities):
5. Date of MJDS prospectus (the Prospectus) under which the Securities are offered:
6. Name of agent (the Agent):
7. Address for service of process of Agent in Canada:
8. The Issuer designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the Proceeding) arising out of, relating to or concerning the distribution of the Securities made or purported to be made under the Prospectus or the obligations of the Issuer as a reporting issuer, and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring such Proceeding.
9. The Issuer irrevocably and unconditionally submits to the non-exclusive jurisdiction of
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the Securities are distributed under the Prospectus; and
(b) any administrative proceeding in any such province [or territory],
in any Proceeding arising out of or related to or concerning the distribution of the Securities made or purported to be made under the Prospectus.
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10. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer will file a new submission to jurisdiction and appointment of agent for service of process in this form at least 30 days before termination of this submission to jurisdiction and appointment of agent for service of process.
11. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer will file an amended submission to jurisdiction and appointment of agent for service of process at least 30 days before any change in the name or above address of the Agent.
12. This submission to jurisdiction and appointment of agent for service of process will be governed by and construed in accordance with the laws of [province of above address of Agent].
Dated:
[Issuer]
By: [Name and title]
The undersigned accepts the appointment as agent for service of process of [Issuer] under the terms and conditions of the appointment of agent for service of process stated above.
Dated:
[Agent]
By: [Name and title]
2. Take-over or Issuer Bid
1. Name of offeror (the Offeror):
2. Jurisdiction of incorporation of Offeror:
3. Address of principal place of business of Offeror:
4. Description of securities (the Securities):
5. Date of Bid (the Bid) for the Securities:
6. Name of agent (the Agent):
7. Address for service of process of Agent in Canada:
8. The Offeror designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the Proceeding) arising out of, relating to or concerning the Bid [insert for securities exchange bids or the obligations of the Offeror as a reporting issuer], and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring such Proceeding.
9. The Offeror irrevocably and unconditionally submits to the non-exclusive jurisdiction of
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the Bid is made, and
(b) any administrative proceeding in any such province [or territory],
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in any Proceeding arising out of or related to or concerning the Bid.
10. Until six years from the date of the Bid, the Offeror will file a new submission to jurisdiction and appointment of agent for service of process in this form at least 30 days before termination of this submission to jurisdiction and appointment of agent for service of process.
11. Until six years from the date of the Bid, the Offeror will file an amended submission to jurisdiction and appointment of agent for service of process at least 30 days before any change in the name or above address of the Agent.
12. This submission to jurisdiction and appointment of agent for service of process must be governed by and construed in accordance with the laws of [province of above address of Agent].
Dated:
[Offeror]
By: [Name and title]
The undersigned accepts the appointment as agent for service of process of [Offeror] under the terms and conditions of the appointment of agent for service of process stated above.
Dated:
[Agent]
By: [Name and title]
3. Trust Indenture
1. Name of trustee (the Trustee):
2. Jurisdiction of incorporation of Trustee:
3. Address of principal place of business of Trustee:
4. Description of securities (the Securities):
5. Date of trust indenture (the Indenture) under which the Securities are issued:
6. Name of agent (the Agent):
7. Address for service of process of Agent in Canada:
8. The Trustee designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the Proceeding) arising out of or relating to or concerning the Indenture, and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring such Proceeding.
9. The Trustee irrevocably and unconditionally submits to the non-exclusive jurisdiction of:
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the Securities are issued, and
(b) any administrative proceeding in any such province [or territory],
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in any Proceeding arising out of or related to or concerning the Indenture.
10. Until six years from the termination of the Indenture, the Trustee will file a new Submission to Jurisdiction and Appointment of Agent for Service of Process in this form at least 30 days before termination of this Submission to Jurisdiction and Appointment of Agent for Service of Process.
11. Until six years from the termination of the Indenture, the Trustee will file an amended Submission to Jurisdiction and Appointment of Agent for Service of Process at least 30 days before any change in the name or above address of the Agent.
12. This submission to jurisdiction and appointment of agent for service of process shall be governed by and construed in accordance with the laws of [province of above address of Agent].
Dated:
[Trustee]
By: [Name and title]
The undersigned accepts the appointment as agent for service of process of [Issuer] under the terms and conditions of the foregoing Appointment of Agent for Service of Process.
Dated:
[Agent]
By: [Name and title]
Companion Policy
Companion Policy 71-101CP to National Instrument 71-101 The Multijurisdictional Disclosure System
Part 1 Introduction and Purpose
1.1 Introduction and Purpose The multijurisdictional disclosure system is a joint initiative by the CSA and the SEC to reduce duplicative regulation in cross-border offerings, issuer bids, take-over bids, business combinations and continuous disclosure and other filings.
The multijurisdictional disclosure system (the MJDS) was originally implemented in Canada in 1991 by the members of the CSA through National Policy Statement No. 45 (NP 45). NP 45 was replaced by National Instrument 71-101 (N1 71-101) which implements in each Canadian jurisdiction those portions of NP 45 which are of a legislative nature. Companion Policy 71-101CP to NI 71-101 (this Policy) provides other information including statements relating to the exercise of discretion by the Canadian securities regulatory authorities under NI 71-101 and the manner in which its provisions are intended to be interpreted or applied by them.
NI 71-101 sets out the substantive requirements of the MJDS which apply in all jurisdictions. Each jurisdiction has implemented NI 71-101 by one or more instruments forming part of the law of that jurisdiction (the implementing law of a jurisdiction). The implementing law of a jurisdiction can take the form of a regulation, rule, ruling or order. Form 71-101F1 sets out the forms of submission to jurisdiction and appointment of agent for service of process.
Ontario, Alberta, British Columbia, Manitoba and Nova Scotia have adopted NI 71-101 by rule. Saskatchewan has adopted it by regulation. All other jurisdictions have adopted NI 71-101 by Policy Statement. To the extent that any provision of this Policy is inconsistent or conflicts with the applicable provisions of NI 71-101 in those jurisdictions that have adopted NI 71-101 by Policy Statement, the provisions of NI 71-101 prevail over the provisions of this Policy.
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Part 2 Overview of the MJDS
2.1 Purpose The MJDS is intended to remove unnecessary obstacles to certain offerings of securities of U.S. issuers in Canada, to facilitate take-over and issuer bids and business combinations involving securities of certain U.S. issuers and to facilitate compliance by U.S. issuers with proxy and continuous disclosure requirements, while ensuring that Canadian investors remain adequately protected.
2.2 Application (1) Offerings The MJDS permits public offerings of securities of U.S. issuers that meet the eligibility criteria specified in NI 71-101 to be made in Canada on the basis of disclosure documents prepared in accordance with U.S. federal securities law, with certain additional Canadian disclosure. A public offering of securities of a U.S. issuer may be made under the MJDS either in Canada and the United States or in Canada only.
(2) Rights Offerings, Bids and Business Combinations The MJDS also reduces disincentives to the extension to Canadian securityholders of rights offerings by U.S. issuers by permitting such rights offerings to be made in Canada on the basis of U.S. disclosure documents. Similarly, it facilitates the extension to Canadian securityholders of U.S. issuers of take-over bids, issuer bids and business combinations in the circumstances contemplated by Parts 12 and 13 of NI 71-101. The MJDS permits such transactions to be made in Canada generally in the same manner as in the United States and on the basis of U.S. disclosure documents.
2.3 Regulatory Review Regulatory review of disclosure documents used under the MJDS for offerings made by a U.S. issuer both in Canada and the United States will be that customary in the United States, with the SEC being responsible for carrying out the review. Whether the offering is made both in Canada and the United States or solely in Canada, Canadian securities regulatory authorities will monitor materials filed under the MJDS to check compliance with the specific disclosure and filing requirements of NI 71-101. In addition, the substance of the disclosure documents will be reviewed in the unusual case if, through monitoring of the materials or otherwise, the Canadian securities regulatory authorities have reason to believe that there may be a problem with a transaction or the related disclosure or other special circumstances exist.
2.4 Liability Unaffected The MJDS does not change the liability provisions of Canadian securities legislation or the discretionary authority of Canadian securities regulatory authorities to halt a distribution, remove an exemption, cease trade the related securities, or refuse to issue a receipt for a preliminary MJDS Prospectus or a MJDS Prospectus. The securities regulatory authority or, in the case of Ontario, the regulator, may also grant exemptions from the requirements of NI 71-101 in specific cases and also exercise its public interest jurisdiction if it determines that it is necessary to do so in order to preserve the integrity of the Canadian capital markets.
2.5 Compliance with U.S. Law Use of the MJDS is based on compliance with U.S. federal securities law. Thus, any person or company carrying out a transaction or filing a document in Canada under the MJDS must comply in full with all applicable U.S. requirements. However, a violation of a U.S. requirement will not automatically disqualify a person or company from using the MJDS with respect to a transaction or document. A person or company that violates a U.S. requirement, depending upon the circumstances, may be considered to have violated an equivalent requirement of a jurisdiction in Canada with respect to a transaction or document.
2.6 The U.S. Multijurisdictional Disclosure System (1) Concurrently with the adoption of NP 45, the SEC adopted rules, forms and schedules for the implementation of a similar multijurisdictional disclosure system in the United States. The U.S. system removes unnecessary impediments to certain offerings of securities of Canadian issuers in the United States and facilitates the extension to U.S. securityholders of Canadian issuers of take-over bids, issuer bids and business combinations in the circumstances contemplated by the U.S. system.
(2) The procedures to be followed in Canada when the U.S. system is used for certain offerings of securities of a Canadian issuer in the U.S. are set out in Part 4 of this Policy.
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Part 3 NI 71-101
3.1 Application of NI 71-101 in each Jurisdiction The MJDS provided for in NI 71-101 has been implemented in each jurisdiction. Except to the extent specifically provided in NI 71-101 or the implementing law of a jurisdiction, the securities legislation continues to apply. The securities legislation may prescribe additional requirements or procedures in relation to the transactions and filings contemplated in NI 71-101.
3.2 MJDS Prospectus Distributions of Securities of U.S. Issuers (1) Election to Use the MJDS The use of the MJDS to distribute securities of a U.S. issuer is elective. Persons or companies permitted to distribute securities of a U.S. issuer under NI 71-101 may alternatively make those distributions in accordance with other provisions of the securities legislation, including, if the relevant eligibility criteria are satisfied, case by case exemptive relief under CSA Notice #95-4 Proposed Foreign Issuer Prospectus and Continuous Disclosure System.
(2) General NI 71-101 permits the following securities of a U.S. issuer to be distributed by prospectus in Canada, either by the issuer or by a selling securityholder, on the basis of documentation prepared in accordance with U.S. federal securities law, with certain additional Canadian disclosure:
(a) non-convertible debt and non-convertible preferred shares that have an investment grade rating;
(b) convertible debt and preferred shares that have an investment grade rating and may not be converted for at least one year after issuance, if the issuer meets a public float requirement;
(c) certain rights to acquire securities of the issuer; and
(d) other securities, if the issuer meets a public float requirement.
The MJDS may also be used for securities exchange bids and business combinations, in each case as described below.
The purpose of the public float requirement is to single out issuers whose size is such that (i) information about them is publicly disseminated and (ii) they have a significant market following. As a result, the marketplace can be expected to set efficiently a price for the securities of these issuers based on publicly available information.
Non-convertible debt and preferred shares that have an investment grade rating are particularly appropriate for the MJDS because these securities trade primarily on the basis of their yield and an assessment of creditworthiness by an independent rating organization. Typically, the four highest rating categories, within which there may be subcategories or gradations indicating relative standing, signify an investment grade rating by an independent rating organization. The investment grade ratings for certain rating organizations currently are:
Rating Organization | Debt | Preferred Shares | ||
CBRS Inc. |
A++, A+, A or B++ | P-1+, P-1, P-2 or P-3 | ||
Dominion Bond Rating Service Limited |
AAA, AA, A or BBB | Pfd-1, Pfd-2 or Pfd-3 | ||
Moodys Investors Service, Inc. |
Aaa, Aa, A or Baa | aaa, aa, a or baa | ||
Standard & Poors Corporation |
AAA, AA, A or BBB | AAA, AA, A or BBB |
The lack of a public float requirement for offerings of these securities allows the MJDS to be used by issuers of securities having an investment grade rating, such as finance subsidiaries, that access the market frequently, but do not meet the public float requirements. Debt and preferred shares that have an investment grade rating and are not convertible into other securities for at least one year after issuance can be expected to trade primarily on the basis of their yield and independent rating, but are also priced to some extent on the basis of the anticipated value of the security into which they are convertible. Thus, the MJDS is available for these securities on the basis of their investment grade rating, coupled with a public float requirement.
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In the case of offerings of common shares or other securities other than non-convertible debt and preferred shares that have an investment grade rating, the MJDS is available upon satisfaction of a public float requirement. The MJDS generally may not be used for the offering of derivative securities, except in the circumstances set out in subsection 3.3(2) of NI 71-101. Therefore, offerings of derivative securities such as stock index warrants, currency warrants and debt the interest on which is based upon the performance of a stock index may not be made under the MJDS.
Subject to certain limitations, the MJDS permits U.S. issuers to make rights offerings by prospectus to existing securityholders in Canada on the basis of documentation prepared in accordance with U.S. federal securities law, with certain additional Canadian disclosure. There is no public float requirement for rights offerings since existing securityholders can reasonably be expected to be familiar with the issuer and follow publicly available information concerning it.
The MJDS is available for rights offerings primarily to encourage fair treatment of Canadian investors. Previously, a U.S. issuer might not have extended rights offerings to its securityholders in Canada due to the perceived costs and burdens of meeting Canadian regulatory requirements. The MJDS is intended to alter a U.S. issuers cost-benefit analysis in favour of extending a rights offering to Canadian investors.
Offerings of debt and preferred shares that are not eligible to be made under paragraph 3.1(a) of NI 71-101, rights offerings that are not eligible to be made under paragraph 3.1(b) of NI 71-101, securities exchange bids that are not eligible to be made under section 12.3 of NI 71-101, and business combinations that are not eligible to be made under section 13.1 may be made under paragraph 3.1(c) of NI 71-101, if subparagraphs 3.1(c)(i) and (ii) of NI 71-101 are satisfied.
(3) Public Interest Jurisdiction All MJDS prospectus distributions remain subject to the fundamental principle that transactions must not be prejudicial to the public interest. The Canadian securities regulatory authorities will continue to exercise their public interest jurisdiction in specific cases if they determine that it is necessary to do so to preserve the integrity of the Canadian capital markets or to protect investors.
(4) Form and Content of MJDS Prospectus A preliminary MJDS prospectus, MJDS prospectus or amendment or supplement to a preliminary MJDS prospectus or MJDS prospectus need not comply with the prospectus form and content requirements of securities legislation applicable to distributions of securities made other than under NI 71-101 except as specifically provided in NI 71-101 and the implementing law of a jurisdiction.
Each preliminary MJDS prospectus and MJDS prospectus is subject to requirements of securities legislation to provide full, true and plain disclosure of all material facts relating to the securities proposed to be distributed and not to contain an untrue statement of a material fact or omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.
(5) Format of MJDS Prospectus A preliminary MJDS prospectus and a MJDS prospectus may be either a separate Canadian prospectus or a wrap-around prospectus that includes the U.S. prospectus filed with the SEC.
An issuer is required to file a preliminary MJDS prospectus for use in Canada even if the issuer does not prepare a preliminary prospectus for use in the United States.
(6) Reconciliation of Financial Statements Reconciliation of financial statements to Canadian GAAP is not required for distributions made under NI 71-101 other than those made under paragraph 3.1(c) of NI 71-101.
An issuer eligible under paragraph 3.1(c) of NI 71-101 to file a MJDS prospectus may apply to each applicable Canadian securities regulatory authority for an exemption permitting the issuer to reconcile financial statements in the MJDS prospectus to International Accounting Standards in lieu of Canadian GAAP.
U.S. federal securities law requires that annual financial statements be accompanied by an auditors report prepared in accordance with U.S. generally accepted auditing standards. Therefore, a MJDS prospectus which by definition, includes
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a U.S. prospectus, would include audited financial statements with a report prepared in accordance with U.S. generally accepted auditing standards. Unlike section 4.6 of NI 71-101 which imposes a requirement to reconcile financial statements to Canadian GAAP, no additional auditing standard requirement is imposed by NI 71-101.
(7) Underwriters Certificate in Rights Offerings A preliminary MJDS prospectus and a MJDS prospectus used for a distribution of rights under NI 71-101 need not contain an underwriters certificate if (i) there is no soliciting activity in the local jurisdiction other than the dissemination by the issuer of the rights and the preliminary MJDS prospectus and MJDS prospectus and the solicitation of the exercise of those rights by existing securityholders, and (ii) securities acquired under a standby underwriting commitment by a dealer to purchase securities unsubscribed for by other securityholders are not resold in the local jurisdiction.
(8) Distributions made in Quebec For distributions made in Quebec, both English and French language versions of the preliminary MJDS Prospectus, MJDS Prospectus and each amendment and supplement thereto are required to be filed. Legislation in Quebec requires that French language versions of the documents or portions of documents incorporated by reference into any of those documents be filed in Quebec not later than the time the incorporating document is filed. Thus, French language versions of continuous disclosure documents need not be filed until incorporated by reference. In addition, information contained in a Form 10-K, Form 10-Q or Form 8-K prescribed under the 1934 Act that is not required to be disclosed under Quebec requirements applicable to distributions not made under the MJDS need not be included in the French language versions of those documents.
Despite the foregoing, section 6.15 of NI 71-101 provides that French language versions of the disclosure documents are not required to be filed for rights offerings made under paragraph 3.1(b) of NI 71-101, unless (i) the issuer is a reporting issuer in Quebec other than solely as a result of rights offerings made under paragraph 3.1(b) of NI 71-101, or (ii) 20 percent or more of the class of securities in respect of which the rights are issued is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
(9) Modification or Amendment Part 7 of NI 71-101 outlines the amendment and supplement procedures for MJDS prospectus distributions.
An amendment to a registration statement that modifies the related U.S. prospectus, other than an amendment that has been made as a result of the occurrence of an adverse material change since the filing of the preliminary MJDS prospectus or an amendment to the preliminary MJDS prospectus, need not be filed as an amendment to the preliminary MJDS prospectus.
(10) Advertising The provisions of securities legislation relating to the advertising of securities or the making of representations or undertakings in respect of distributions of securities, other than representations as to listing or quotation of securities, including the distribution of material to potential investors and the provision of information to the media before the issuance of a receipt for the MJDS prospectus, apply to distributions made under the MJDS.
(11) Review Procedures Disclosure documents filed for a distribution under NI 71-101 will be subject to SEC review procedures if the offering is being made both in Canada and the United States. Whether the offering is made both in Canada and the United States or solely in Canada, the Canadian securities regulatory authorities will monitor materials filed under NI 71-101 to check compliance with the specific disclosure and filing requirements of NI 71-101. In addition, the substance of the disclosure documents will be reviewed in the unusual case if, through monitoring of the materials or otherwise, the Canadian securities regulatory authorities have reason to believe that there may be a problem with a transaction or the related disclosure or other special circumstances exist.
An issuer making an offering in Canada and the U.S. using the MJDS must select a principal jurisdiction in Canada. As of the date of this Policy, the Canadian securities regulatory authorities of New Brunswick, Prince Edward Island, Newfoundland, Yukon Territory and the Northwest Territories have indicated that they will not agree to act as principal jurisdiction under section 5.1 of NI 71-101.
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(12) Receipt Procedures The receipt for a preliminary MJDS Prospectus filed under NI 71-101 will be issued by each regulator when the preliminary MJDS Prospectus and all other required documentation have been filed with it in the manner required by NI 71-101.
If a distribution under NI 71-101 is being made concurrently in the United States, the receipt for a MJDS prospectus filed under NI 71-101 will be issued by each regulator when the following conditions have been satisfied, unless the regulator has reason to believe that there may be a problem with the transaction or the related disclosure or other special circumstances exist,
(a) if the regulator is in the principal jurisdiction, the related registration statement has become effective under the SEC rules, as notified in writing by the issuer under section 6.11 of NI 71-101;
(b) in the case of the other jurisdictions, the regulator in the principal jurisdiction has notified each other applicable regulator that the regulator in the principal jurisdiction has issued a receipt for the MJDS Prospectus; and
(c) the MJDS prospectus, all documents incorporated or deemed to be incorporated therein by reference and all other documentation required to be filed under NI 71-101 have been filed with the regulator in the manner required by NI 71-101.
If the offering is being made solely in Canada, the receipt for a MJDS prospectus filed under NI 71-101 will be issued by each applicable regulator when the conditions set out in paragraphs (b) and (c) above have been satisfied, unless it has reason to believe that there may be a problem with the transaction or the related disclosure or other special circumstances exist.
Issuers filing a MJDS Prospectus under NI 71-101 may elect to use the receipt system in the national policy on mutual reliance for prospectuses. Reference should be made to that policy for the procedures, requirements and benefits of the system provided by that policy.
(13) Rule 415 Offerings and Rule 430A Offerings
(a) The procedures permitted by Rule 415 and Rule 430A under the 1933 Act may be used for offerings of securities under NI 71-101. National Policy Statement No. 44 Rules for Shelf Prospectus Offerings and for Pricing Offerings after the Final Prospectus is Receipted and any successor instrument to that National Policy Statement does not apply to those offerings. A prospectus supplement filed in accordance with the procedures permitted by Rule 415 or Rule 430A will not be subject to the review procedures set out in subsection 3.2(11) or the receipt procedures set out in subsection 3.2(12) of this Policy.
(b) None of a revised U.S. prospectus, a prospectus supplement, a rule 415 prospectus supplement and a rule 430A pricing prospectus is an amendment to a MJDS prospectus.
(14) Certification for Rule 415 Offerings Method 1 can be substituted for method 2 and vice versa until the filing of the MJDS prospectus. The method chosen for the provision of the issuers and underwriters certificates need not be the same.
Method 1 allows the use of prospectus supplements and in the case of MTN programs, pricing supplements (i.e., supplements setting the price and certain variable terms of the securities rather than establishing the program) that do not contain certificates, if a forward-looking certificate has been included in the prospectus or in the supplement establishing the program.
Method 2 requires the inclusion of certificates in each prospectus supplement and pricing supplement filed under the MJDS, provided that no certificate is required to be included in a prospectus supplement or pricing supplement filed in the principal jurisdiction if the securities covered by the prospectus supplement or pricing supplement are not offered in Canada.
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The text of the certificates for rule 415 offerings is set forth in the appendix to NI 71-101.
(15) Disclosure of Interest of Underwriter An underwriter of the Canadian distribution named in the preliminary MJDS Prospectus or MJDS Prospectus remains subject to any obligation under Canadian securities legislation to disclose the names of persons or companies having an interest in its capital.
(16) Conflicts of Interest The provisions of Canadian securities legislation that regulate conflicts of interest in connection with the distribution of securities of a registered dealer, a connected issuer of a registered dealer or a related issuer of a registered dealer, other than disclosure, apply to distributions under NI 71-101. In some jurisdictions, participation of an independent underwriter in these distributions may be required.
(17) Trust Indenture Requirements Section 19.1 of NI 71-101 provides that any requirement of a jurisdiction applicable to trust indentures for any debt outstanding or guaranteed thereunder, including a requirement that a person or company appointed as a trustee under a trust indenture be resident or authorized to do business in the jurisdiction, does not apply to offerings made under NI 71-101, if the conditions of Section 19.1 are met.
(18) Fees Canadian securities legislation regarding fees applies to a filing made under NI 71-101.
3.3 Registration Requirements for Rights Offerings The dealer registration requirement applies to
(a) a dealer that solicits exercise of rights; and
(b) a dealer that resells securities acquired under a standby underwriting commitment by the dealer to purchase securities unsubscribed for by other securityholders
in a rights offering made under NI 71-101.
3.4 Bids for Securities of U.S. Issuers (1) General Subject to the provisions of Part 12 of NI 71-101, the MJDS permits eligible take-over bids and issuer bids for securities of a U.S. issuer to be made in accordance with U.S. federal securities law to Canadian residents if Canadian residents hold less than 40 percent of the securities. The MJDS enables offerors generally to comply with applicable U.S. disclosure requirements and requirements governing the conduct of the bid instead of complying with Canadian requirements.
The MJDS is extended to take-over bids and issuer bids primarily to encourage fair treatment of Canadian investors. Securityholders in a particular jurisdiction who are excluded from an offer may be relegated to choosing, without the disclosure and procedural safeguards available under either the Canadian or the U.S. regulatory scheme, either to sell into the secondary market at less than the full bid price and incur additional transactional costs or to remain minority securityholders subject to the possibility of being forced out of their equity position in a subsequent merger. The application of the MJDS to bids is intended to facilitate bids by reducing duplicative regulation and avoiding conflict between the two regulatory schemes. Because the substantive protections and disclosure obligations applicable to bids in the United States are, as a whole, comparable to those prescribed by Canadian securities legislation, Canadian resident holders of securities of U.S. issuers should remain adequately protected by the application of U.S. rather than Canadian rules in the circumstances contemplated by NI 71-101.
Particularly when relatively few securities are held by Canadian residents, there may be a disincentive to extend a bid to them if doing so would require compliance with additional Canadian regulatory requirements. The availability of the MJDS for bids for securities of U.S. issuers is intended to alter the offerors cost-benefit analysis in favour of extending those bids to Canadian residents.
There are no offeror eligibility requirements except in the case of securities exchange bids. For securities exchange bids made under the MJDS, compliance with U.S. disclosure requirements satisfies Canadian disclosure requirements with respect to the offeror and the offered securities only if the offeror meets certain reporting history, listing and other eligibility
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requirements and, in the case of securities exchange take-over bids, a public float or investment grade rating requirement. In take-over bids, unlike issuer bids and rights offerings, the investor has not already made an investment decision with respect to the issuer of the securities that are being offered in the exchange.
Bids made under the MJDS must be extended to all holders of the class of securities subject to the bid in Canada and the United States. Further, bids must be made on the same terms and conditions to all securityholders.
The provisions of securities legislation governing the form and content of disclosure documents and the conduct of bids are varied in respect of bids made under the MJDS to the extent provided in NI 71-101 and the implementing law of a jurisdiction. Bids made under the MJDS remain subject to any requirements to file with the Canadian securities regulatory authorities and send a bid circular, a directors circular or an individual directors or officers circular and any notice of change or notice of variation to holders of the securities subject to the bid.
The requirement to send bid materials to holders of the securities subject to the bid applies whether those materials are published, sent or given to securityholders resident in the United States of America by the use of stockholder lists and security position listings, or by long form or summary publication.
Each MJDS take-over bid circular, MJDS issuer bid circular, MJDS directors circular and MJDS directors or officers circular remains subject to the requirement that it not contain an untrue statement of a material fact or omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.
(2) Alternative Exemptions Provision is made in the Canadian securities legislation of some jurisdictions for exemption from take-over bid and issuer bid requirements if the bid is made in compliance with the laws of a recognized jurisdiction and there are relatively few holders in the jurisdiction holding a relatively small percentage of the class of securities subject to the bid. An offeror may make a bid under the MJDS in certain jurisdictions and under such an exemption in others.
(3) Certain Continuing Requirements
(a) Early Warning Provisions of Canadian securities legislation that require disclosure of acquisitions reaching a certain threshold or restrict acquisitions of securities once such a threshold has been reached continue to apply in respect of U.S. offeree issuers that are reporting issuers in a jurisdiction.
(b) Going Private Transactions Bids made under the MJDS are subject to the requirements of Canadian securities legislation relating to going private transactions, other than the requirement to provide a valuation at the time of a take-over bid if it is anticipated by the offeror that a going private transaction will follow the bid.
(c) Pre-bid Integration Canadian securities legislation regulating take-over bids includes provisions regarding integration of pre-bid transactions with the bid. These provisions apply to MJDS bids only if 20 percent or more of a class of securities that is the subject of a take-over bid made under the MJDS is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
(d) Valuation Requirements in Issuer and Insider Bids The valuation requirements of Canadian securities legislation with respect to issuer bids and insider bids apply to issuer bids and insider bids made under the MJDS only if 20 percent or more of a class of securities that is the subject of the bid is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
(e) Public Interest Jurisdiction All bids remain subject to the fundamental principle that transactions must not be prejudicial to the public interest. The Canadian securities regulatory authorities will continue to exercise their public interest jurisdiction in specific cases if they determine that it is necessary to do so in order to preserve the integrity of the Canadian capital markets or to protect investors.
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(4) Directors and Individual Directors and Officers Circulars If a take-over bid is made under the MJDS, the offeree issuer and its directors and officers may elect to comply either with the requirements of Canadian securities legislation or as provided in NI 71-101 with U.S. federal securities law in respect of their response to the bid. In the case of compliance by the directors or by individual directors or officers with Canadian requirements, the requirements set out in NI 71-101 regarding directors circulars or individual directors or officers circulars, as the case may be, do not apply. Notwithstanding that a take-over bid was eligible to be made under the MJDS, the offeree issuer and its directors and officers may not use the MJDS in respect of the bid if the offeror did not make the bid under the MJDS.
(5) Bids Made in Quebec A French language version of a MJDS bid circular, together with French language versions of all documents or parts thereof incorporated by reference into the MJDS bid circular that contain information required to be disclosed in a bid circular not prepared in accordance with NI 71-101, is required to be filed in Quebec.
However, a French language version of a MJDS bid circular is not required to be filed for a bid made under the MJDS, unless (i) the offeree issuer is a reporting issuer in Quebec, or (ii) 20 percent or more of a class of securities that is the subject of the bid is held by persons or companies whose last address as shown on the books of the issuer is in Canada.
(6) Notices of Variation and Notices of Change The provisions of Canadian securities legislation that prescribe the circumstances in which a bid circular, directors circular, or individual officers or directors circular is required to be changed or varied and the form and content of the applicable disclosure documents do not apply to bids made under the MJDS, unless, in respect of the directors circular or individual officers or directors circular, the directors or individual officer or director have elected to comply with the requirements of Canadian securities legislation otherwise applicable. Instead, disclosure documents filed under the MJDS should be changed or varied in accordance with the requirements of section 12.15 of NI 71-101.
(7) Fees Canadian securities legislation regarding fees applies to a bid made under NI 71-101.
3.5 Business Combinations The MJDS permits securities of a U.S. issuer to be distributed by prospectus in Canada on the basis of documentation prepared in accordance with U.S. federal securities law, with certain additional Canadian disclosure, in connection with a business combination if less than 40 percent of the securities to be distributed by the successor issuer would be held by Canadian residents. As in the case of bids, the MJDS is available for business combinations primarily to encourage fair treatment of Canadian investors. A MJDS prospectus filed for a distribution of securities in connection with a business combination need not contain a reconciliation of the financial statements in the prospectus to Canadian GAAP.
Canadian securities legislation of most of the jurisdictions provides for an exemption from prospectus requirements for certain distributions of securities issued in connection with a statutory amalgamation, merger or arrangement. As a result, an issuer may elect not to use the MJDS, but to distribute securities issued in a business combination under a prospectus exemption. A consequence of using a prospectus exemption instead of the MJDS may be resale restrictions on the distributed securities. However, under rules or blanket rulings or orders issued in certain jurisdictions, the resale of securities acquired under such an exemption is not a distribution for which a prospectus is required if the issuer meets certain eligibility and reporting requirements and the resale is executed through the facilities of a stock exchange or certain other regulated markets outside of the jurisdiction.
A business combination made under the MJDS must comply with the relevant requirements of securities legislation relating to going private transactions and related party transactions. All business combinations remain subject to the fundamental principle that transactions must not be prejudicial to the public interest. The Canadian securities regulatory authorities will continue to exercise their public interest jurisdiction in specific cases if they determine that it is necessary to do so to preserve the integrity of the Canadian capital markets or to protect investors.
3.6 Continuous Disclosure, Proxies and Proxy Solicitation, Insider Reporting and Shareholder Communication (1) General An issuer that files a prospectus or a bid circular for a securities exchange take-over bid in certain jurisdictions becomes a reporting issuer in those jurisdictions, thereby becoming subject, among other things, to certain continuous
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disclosure, proxy and proxy solicitation, and shareholder communication requirements, and its insiders becoming subject to certain insider reporting requirements.
Parts 14 through 18 of NI 71-101 substitute U.S. federal securities law requirements for the requirements of Canadian securities legislation otherwise applicable to U.S. issuers and other persons or companies that satisfy the relevant eligibility criteria, if any, specified in those parts and that elect to comply with the requirements specified in those parts.
Canadian securities legislation in certain jurisdictions requires that issuers
(a) prepare their financial statements in accordance with, or reconcile the financial statements to, Canadian GAAP;
(b) state in the notes to the financial statements which option has been applied in the choice of generally accepted accounting principles; and
(c) include an auditors report on the financial statements prepared in accordance with Canadian GAAS or include an explanation of the significant differences between U.S. generally accepted auditing standards and Canadian GAAS.
U.S. issuers filing financial statements in accordance with Part 15 of NI 71-101 are exempt from these requirements under rules, blanket rulings or orders issued in those jurisdictions.
(2) Communication with Beneficial Owners of Securities of a Reporting Issuer If a U.S. issuer elects to comply with section 18.1 of NI 71-101, any Canadian clearing agency (i.e. The Canadian Depositary for Securities Limited) and any intermediary whose last address as shown on the books of the issuer is in the local jurisdiction is required to comply with the requirements of National Policy Statement No. 41 and any successor instrument to that National Policy Statement for such issuer, including, without limitation, responding to search cards and delivering proxy-related materials within the time periods specified in National Policy Statement No. 41 and under any successor instrument to that National Policy Statement.
Part 4 Certain Offerings by Canadian Issuers Under The U.S. Multijurisdictional Disclosure System
4.1 U.S. Trust Indenture Exemption Rule 4d-9 made under the Trust Indenture Act of 1939 grants certain exemptions from the U.S. trust indenture provisions for a trust indenture filed with the SEC in connection with an offering of securities by a Canadian issuer under the U.S. multijurisdictional disclosure system if the trust indenture is subject to the Canada Business Corporations Act, the Bank Act (Canada), the Business Corporations Act (Ontario) or the Company Act (British Columbia). The trust indenture provisions of the Canada Business Corporations Act, the Bank Act (Canada) and the Company Act (British Columbia) apply to issuers incorporated under the respective statute, whether the debt is distributed in Canada or elsewhere. The trust indenture provisions of the Business Corporations Act (Ontario) and the Company Act (British Columbia) apply in certain circumstances to issuers whether or not incorporated under the applicable statute. In order for the trust indenture provisions of the Business Corporations Act (Ontario) to apply to a trust indenture, a prospectus or securities exchange issuer or take-over bid circular must be filed in Ontario in respect of the debt to be issued or guaranteed under the trust indenture. The Company Act (British Columbia) trust indenture provisions apply if the debt is issued (i) by a company incorporated in British Columbia regardless of where the debt is distributed, or (ii) to residents in British Columbia whether the debt is issued by prospectus, private placement or other exemption, subject to certain limited exceptions set out in the Company Act (British Columbia). Therefore, in order for the exemption in Rule 4d-9 to be available, Canadian issuers, other than those incorporated under the Canada Business Corporations Act, the Bank Act (Canada) or the Company Act (British Columbia) must either file a prospectus or securities exchange issuer or take-over bid circular in Ontario in connection with the offering or offer the securities in British Columbia by prospectus, private placement or under another exemption from the prospectus filing requirement other than those specified in the Company Act (British Columbia).
4.2 Prospectus Filing in Canada (1) General An issuer distributing securities in the U.S. under the U.S. multijurisdictional disclosure system may be subject to a requirement to file a prospectus with a Canadian securities
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regulatory authority in a jurisdiction because part of the securities offered may be offered or sold to purchasers in that jurisdiction or as a result of the likelihood that the securities sold in the U.S. will not come to rest outside that jurisdiction and thus the offering constitutes a distribution in that jurisdiction for which a prospectus is required to be filed.
(2) Distribution from British Columbia, Alberta or Quebec
(a) An issuer located in British Columbia, Alberta or Quebec that is distributing securities in the U.S. under the U.S. multijurisdictional disclosure system is subject to a requirement to file a prospectus with the Canadian securities regulatory authority in British Columbia, Alberta or Quebec, respectively, because the U.S. distribution is being made from British Columbia, Alberta or Quebec, respectively, even if the securities qualified by the prospectus are offered and sold only in the United States of America.
(b) Under British Columbia Rule 71-801 and Alberta Rule 71-801, an issuer filing a prospectus with the British Columbia Securities Commission or Alberta Securities Commission, respectively, in circumstances described in paragraph (a) need not include in the prospectus an underwriters certificate.
(c) An issuer filing a prospectus with the Commission des valeurs mobilières du Québec in circumstances described in paragraph (a) may apply to the Commission des valeurs mobilières du Québec for an exemption from those requirements that solely would be applicable if the distribution were being made to purchasers in Quebec.
(d) An issuer that files a prospectus in British Columbia or Alberta in circumstances described in paragraph (a) should advise the SEC of the Canadian securities regulatory authority that is the review jurisdiction. The prospectus will be subject to the review procedures applicable to short form prospectuses. The British Columbia Securities Commission or the Alberta Securities Commission will send the issuer the receipt for the prospectus after the comments, if any, on the prospectus have been resolved. If the issuer has filed a registration statement on Form F-9 or F-10 prescribed under the 1933 Act with the SEC in connection with the distribution, the issuer should advise the SEC of the issuance of the receipt for the prospectus in order that the registration statement may become effective before the end of the seven calendar day period in Rule 467(b) under the 1933 Act.
(e) An issuer that files a prospectus in Quebec in circumstances described in paragraph (a) should advise the SEC that the Commission des valeurs mobilières du Québec is the review jurisdiction. The Commission des valeurs mobilières du Québec will complete its review of the prospectus within three business days of filing of the prospectus and will send the issuer the receipt for the prospectus after the comments, if any, on the prospectus have been resolved. If the issuer has filed a registration statement on Form F-9 or F-10 in connection with the distribution, the issuer should advise the SEC of the issuance of the receipt for the prospectus in order that the registration statement may become effective before the end of the seven calendar day period in Rule 467(b) under the 1933 Act.
4.3 Filings in Saskatchewan, Manitoba, Ontario and Nova Scotia For U.S. Only Distributions (1) Filing Procedures If an issuer other than an issuer located in British Columbia, Alberta or Quebec, that files a Form F-9 or F-10 in connection with a distribution solely in the United States of America under the multijurisdictional disclosure system adopted by the SEC seeks to have the registration statement become effective before the end of the seven calendar day period in Rule 467(b) under the 1933 Act, the issuer may select Saskatchewan, Manitoba, Ontario or Nova Scotia as review jurisdiction, file the registration statement filed with the SEC with the Canadian securities regulatory authority in the review jurisdiction contemporaneously with the filing of the registration statement with the SEC, obtain a notification of clearance from the regulator and advise the SEC of the issuance of the notification of clearance.
(2) Confirmation of Review Jurisdiction If the Canadian securities regulatory authority selected under subsection (1) elects not to act as review jurisdiction, the issuer may select another Canadian securities regulatory authority as review jurisdiction and advise the SEC of the Canadian securities regulatory authority selected as review jurisdiction.
(3) Review Procedures
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(a) The Canadian securities regulatory authority in the review jurisdiction will monitor registration statements filed under subsection (1). The substance of a registration statement will be reviewed in the unusual case if, through monitoring of the materials or otherwise, the Canadian securities regulatory authority has reason to believe that there may be a problem with the transaction or the related disclosure or other special circumstances exist.
(b) If the review jurisdiction selects a registration statement for review, it will send its comments to the issuer within three business days of the filing of the registration statement.
(4) Notification of Clearance Procedures A notification of clearance for the registration statement will be issued by the regulator in the review jurisdiction once any comments have been resolved, unless the Canadian securities regulatory authority in the review jurisdiction has reason to believe that there may be a problem with the transaction or the related disclosure or other special circumstances exist.
(5) Filing of Amendments to Registration Statement An issuer that files a registration statement under subsection (1) shall also file with the regulator in the review jurisdiction all amendments to the registration statement contemporaneously with the filing of such documents with the SEC.
End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
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