ARRANGEMENT AGREEMENT
THIS ARRANGEMENT AGREEMENT is made as of the 11th day of March, 2015
AMONG:
FIRSTSERVICE CORPORATION, a corporation existing pursuant to the laws of the Province of Ontario ("FirstService")
- and -
NEW FSV CORPORATION, a corporation existing pursuant to the laws of the Province of Ontario ("New FSV")
- and -
FSV HOLDCO ULC, an unlimited liability company existing pursuant to the laws of the Province of British Columbia ("FSV Holdco")
- and -
FIRSTSERVICE COMMERCIAL REAL ESTATE SERVICES INC., a corporation existing pursuant to the laws of the Province of Ontario ("FCRESI")
WHEREAS:
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A.
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the business of FirstService consists of the following three divisions: (i) the "Colliers International" commercial real estate services division; (ii) the "FirstService Residential" residential real estate services division; and (iii) the "FirstService Brands" property services division;
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B.
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FirstService wishes to separate and spin-off its "FirstService Residential" residential real estate services division and "FirstService Brands" property services division, and the assets and liabilities respectively referable to such divisions, into a separate public company, by means of the Pre-Arrangement Transactions (as defined below) and the Arrangement (as defined below);
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C.
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New FSV has been incorporated in order to facilitate and participate in the Arrangement;
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D.
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FSV Holdco and FCRESI, both Subsidiaries (as defined below) of FirstService, have agreed to participate in the Arrangement;
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E.
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the Parties (as defined below) will participate in a series of transactions for the separation and reorganization of the assets and liabilities of FirstService, such that: (i) FSV Holdco will hold the "FirstService Residential" residential real estate services division and "FirstService Brands" property services division of FirstService, and the assets and liabilities respectively referable to such divisions, and will, under the Plan of Arrangement (as defined below), become a wholly-owned Subsidiary of New FSV and dissolve and wind-up into New FSV, and New FSV will change its name to "FirstService Corporation"; (ii) FCRESI will (outside of the Arrangement) become a wholly-owned Subsidiary of FirstService; and (iii) FirstService will, outside of FSV Holdco and through FCRESI, continue to hold the "Colliers International" commercial real estate services division, and the assets and liabilities referable to such division, and will, under the Plan of Arrangement, amalgamate with FCRESI to form a corporation that will be named "Colliers International Group Inc."; and
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F.
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the Board (as defined below) has reviewed the terms and conditions of the Arrangement and, for the reasons set out in the Meeting Materials (as defined below), has unanimously concluded that the Arrangement is in the best interests of FirstService and is fair and reasonable to FirstService and the holders of FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares (as such terms are defined below), each taken separately as a class;
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NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration now paid by each of the Parties to the others of them, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Agreement, including the recitals hereto, unless there is something in the subject matter or context inconsistent therewith, the following terms have the following meanings, respectively:
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(a)
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"Affiliate" means, in respect of any Person, another Person if: (i) one of them is the Subsidiary of the other; or (ii) each of them is Controlled by the same Person;
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(b)
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"Agreed Amount" has the meaning ascribed to such term in Section 6.4;
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(c)
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"Agreement" means this Arrangement Agreement and all schedules attached to this Arrangement Agreement, all as amended, supplemented or restated from time to time;
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(d)
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"Applicable Law" means in respect of any Person: (i) any applicable domestic or foreign law, including any statute, subordinate legislation or treaty; and (ii) any applicable guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of a Governmental Authority having the force of law;
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(e)
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"Arrangement" means the arrangement under Section 182 of the OBCA on the terms and subject to the conditions set forth in the Plan of Arrangement, subject to any amendments or variations thereto made in accordance with this Agreement or the Plan of Arrangement, or made at the direction of the Court;
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(f)
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"Arrangement Resolution" means the special resolution approving the Plan of Arrangement to be considered at the Meeting, to be substantially in the form and content attached as Appendix "A" to the Circular;
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(g)
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"Articles of Arrangement" means the articles of arrangement of FirstService in respect of the Arrangement, to be filed with the Director after the Final Order is made, which shall include the Plan of Arrangement;
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(h)
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"Board" means the board of directors of FirstService as constituted from time to time;
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(i)
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"Business Day" means a day, other than a Saturday, Sunday or statutory or civic holiday in Toronto, Ontario, Canada, when banks are generally open for the transaction of business in Toronto, Ontario, Canada;
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(j)
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"Canadian Tax Ruling" means the advance income tax rulings received from the CRA with respect to certain Canadian federal income tax consequences in respect of the Pre-Arrangement Transactions, the Arrangement and certain other transactions and includes any replacements thereof and amendments and supplements thereto received or anticipated to be received from the CRA, in form and substance satisfactory to FirstService, in its sole discretion;
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(k)
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"Canadian Tax Ruling Application" means the advance income tax rulings application and related submissions made by Wilson & Partners LLP, a law firm affiliated with PricewaterhouseCoopers LLP, on behalf of FirstService, New FSV and Jayset Capital Corp., as same may be revised, supplemented, modified or replaced at the request of FirstService, New FSV and/or Jayset Capital Corp., seeking the Canadian Tax Ruling;
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(l)
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"Certificate of Arrangement" means the certificate of arrangement to be issued by the Director, pursuant to subsection 183(2) of the OBCA, in order to give effect to the Articles of Arrangement;
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(m)
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"Circular" means the management information circular of FirstService relating to, among other things, the Arrangement, including all appendices and schedules thereto, and any information incorporated by reference therein, to be sent to the FirstService Shareholders in connection with the Meeting, as amended, supplemented or otherwise modified from time to time;
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(n)
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"Claim" means any act, omission or state of facts, or any demand, action, suit, proceeding, claim, assessment, judgment, settlement or other compromise relating thereto, which may give rise to a right of indemnification under Article 6;
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(o)
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"Claim Notice" has the meaning ascribed to such term in subsection 6.3(a);
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(p)
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"Claimed Amount" has the meaning ascribed to such term in Section 6.4;
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(q)
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"Colliers" means the corporation governed by the OBCA continuing following the amalgamation of FirstService and FCRESI pursuant to the Plan of Arrangement;
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(r)
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"Colliers MSA" means the FirstService MSA, as required to be amended and restated among Colliers, Jayset Capital Corp. and Jay S. Hennick in accordance with the terms of the Transitional Services and Separation Agreement, pursuant to which FirstService (and following the Effective Time, Colliers) will continue to receive the various management and other services being provided by Jayset Capital Corp. to FirstService in respect of the "Commercial Real Estate Services" division of FirstService pursuant to the FirstService MSA;
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(s)
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"Colliers Multiple Voting Shares" means the Multiple Voting Shares in the capital of Colliers (which were previously FirstService New Multiple Voting Shares and which became Multiple Voting Shares in the capital of Colliers pursuant to the amalgamation of FirstService and FCRESI under the Plan of Arrangement);
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(t)
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"Colliers Stock Option Plan" means the FirstService Stock Option Plan which becomes the stock option plan of Colliers pursuant to the amalgamation of FirstService and FCRESI under the Plan of Arrangement;
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(u)
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"Colliers Subordinate Voting Shares" means the Subordinate Voting Shares in the capital of Colliers (which were previously FirstService New Subordinate Voting Shares and which became Subordinate Voting Shares in the capital of Colliers pursuant to the amalgamation of FirstService and FCRESI under the Plan of Arrangement);
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(v)
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"Control" means, when applied to a relationship between two Persons, that a Person (the "first Person") is considered to control another Person (the "second Person") if: (i) the first Person, directly or indirectly, beneficially owns or exercises control or direction over securities, interests or contractual rights of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the directors of the second Person, or a majority of any other Persons who have the right to manage or supervise the management of the business and affairs of the second Person, unless that first Person holds the voting securities only to secure a debt or similar obligation; (ii) the second Person is a partnership, other than a limited partnership, and the first Person, together with any Person Controlled by the first Person, holds more than 50% of the interests (measured by votes or by value) of the partnership; or (iii) the second Person is a limited partnership and the general partner of the limited partnership is the first Person or any Person Controlled by the first Person, and the term "Controlled" has a corresponding meaning;
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(w)
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"Court" means the Ontario Superior Court of Justice;
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(x)
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"CRA" means the Canada Revenue Agency, and any successor Governmental Authority thereto;
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(y)
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"Direct Claim" means any Claim by an Indemnified Person against an Indemnifying Party;
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(z)
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"Director" means the Director appointed pursuant to Section 278 of the OBCA;
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(aa)
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"Dissent Rights" means the right of a registered FirstService Shareholder to dissent in respect of the Arrangement pursuant to the procedures set forth in Section 185 of the OBCA, as modified by Article 4 of the Plan of Arrangement, the Interim Order and any other order of the Court;
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(bb)
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"Effective Date" means the date shown on the Certificate of Arrangement (being the effective date of the Arrangement);
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(cc)
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"Effective Time" means 12:01 a.m. (Toronto, Ontario local time) on the Effective Date;
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(dd)
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"Encumbrance" means any mortgage, charge, pledge, lien, hypothec, security interest, encumbrance, adverse claim or right of any third party to acquire or restrict the use of property;
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(ee)
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"Excess" has the meaning ascribed to such term in Section 6.6;
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(ff)
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"Fairness Opinion" means an opinion of William Blair & Company, L.L.C. to be dated on or about the date of this Agreement which is addressed to the Board and provides that the consideration to be received by the FirstService Shareholders pursuant to the Arrangement is fair, from a financial point of view, to such FirstService Shareholders, and is otherwise in a form acceptable to the Board;
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(gg)
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"FCRESI Arrangements" means the arrangements entered into between FirstService and one or more shareholders and/or optionholders of FCRESI (other than FirstService) and/or under the FCRESI Governance Agreement pursuant to which FirstService will acquire (outside and not as part of the Plan of Arrangement) all of the issued and outstanding shares (and options to acquire shares) of FCRESI it does not own for consideration consisting of FirstService New Subordinate Voting Shares and/or cash and, following the effectiveness of which, FCRESI will be a wholly-owned Subsidiary of FirstService;
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(hh)
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"FCRESI Governance Agreement" means the amended and restated governance and support agreement made as of the 7th day of August, 2012 between FCRESI and FirstService;
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(ii)
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"Final Order" means the final order of the Court approving the Arrangement, as such order may be amended or varied at any time prior to the Effective Time or, if appealed, then, unless such appeal is withdrawn or denied, as affirmed or amended, with or without variation, on appeal;
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(jj)
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"FirstService MSA" means the management services agreement made effective as of and from the 1st day of February, 2004 among FirstService, Jayset Capital Corp. and Jay S. Hennick, as same may have been amended, pursuant to which FirstService retained Jayset Capital Corp. to provide various management and other services, and Mr. Hennick agreed to perform such services on behalf of Jayset Capital Corp.;
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(kk)
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"FirstService Multiple Voting Shares" means the Multiple Voting Shares in the capital of FirstService (that will be re-designated under the Plan of Arrangement as "Class A Multiple Voting Shares");
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(ll)
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"FirstService MV Special Shares" means the new series of preference shares in the capital of FirstService created pursuant to the Plan of Arrangement, designated as "Preference Shares, Series MV" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to the Plan of Arrangement;
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(mm)
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"FirstService New Multiple Voting Shares" means the new class of shares in the capital of FirstService created pursuant to the Plan of Arrangement, designated as "Multiple Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to the Plan of Arrangement;
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(nn)
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"FirstService New Subordinate Voting Shares" means the new class of shares in the capital of FirstService created pursuant to the Plan of Arrangement, designated as "Subordinate Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to the Plan of Arrangement;
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(oo)
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"FirstService Shareholders" means, collectively, the holders of FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares;
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(pp)
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"FirstService Stock Option Plan" means the "FirstService Stock Option Plan" of FirstService, as amended and/or restated;
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(qq)
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"FirstService Subordinate Voting Shares" means the Subordinate Voting Shares in the capital of FirstService (that will be re-designated under the Plan of Arrangement as "Class A Subordinate Voting Shares");
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(rr)
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"FirstService SV Special Shares" means the new series of preference shares in the capital of FirstService created pursuant to the Plan of Arrangement, designated as "Preference Shares, Series SV" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to the Plan of Arrangement;
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(ss)
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"Governmental Authority" means any: (i) multinational, federal, provincial, territorial, state, regional, municipal, local or other government, governmental or public department, court, tribunal, commission, board or agency, domestic or foreign; or (ii) regulatory authority, including any securities commission or stock exchange;
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(tt)
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"Indemnified Person" means each Person, actually or potentially, entitled to indemnification pursuant to Article 6;
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(uu)
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"Indemnifying Party" means a Party that is, actually or potentially, required to indemnify an Indemnified Person pursuant to Article 6;
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(vv)
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"Indemnity Payment" means any amount of Loss required to be paid by an Indemnifying Party pursuant to Article 6;
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(ww)
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"Independent Accountant" has the meaning ascribed to such term in paragraph 6.7(b)(iii);
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(xx)
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"Interested FirstService Subordinate Voting Shareholder" means, at the applicable time, a holder of FirstService Subordinate Voting Shares who is, for the purposes of voting on the Arrangement Resolution: (i) an "interested party" within the meaning of MI 61-101 or otherwise required to be excluded for the purposes of a vote on the Arrangement Resolution under the requirements of MI 61-101; (ii) a "control person" of FirstService within the meaning of OSC Rule 56-501 – Restricted Shares; or (iii) an "affiliate" of FirstService within the meaning of the Securities Act;
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(yy)
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"Interim Order" means the interim order of the Court in respect of the Arrangement, as it may be varied or amended, as contemplated by Section 2.3 of this Agreement;
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(zz)
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"IRC" means the United States Internal Revenue Code of 1986, as amended, and includes the Treasury Regulations promulgated thereunder;
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(aaa)
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"Judgement Conversion Date" has the meaning ascribed to such term in subsection 6.9(a);
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(bbb)
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"Judgement Currency" has the meaning ascribed to such term in subsection 6.9(a);
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(ccc)
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"Loss" means any loss, liability, damage, cost, expense, charge, fine, penalty, assessment or reassessment of whatever nature or kind, including Taxes, the reasonable out-of-pocket costs and expenses of any action, suit, proceeding, demand, claim, assessment, judgment, settlement or other compromise relating thereto and reasonable legal fees (on a solicitor and its own client basis) and disbursements incurred in connection therewith, excluding loss of profits and consequential damages;
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(ddd)
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"Material Adverse Effect" means, in respect of any Person, any change, event, development or occurrence that is, or would reasonably be expected to be, material and adverse to the business, operations, results of operations, liabilities (including contingent liabilities), obligations (whether absolute, accrued, conditional or otherwise), capital, properties, assets or financial condition of that Person (including its Affiliates) considered as a whole;
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(eee)
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"Meeting" means the annual and special meeting of FirstService Shareholders (including any adjournment or postponement thereof) to be called and held in accordance with the Interim Order to consider and, if deemed advisable, to approve the Arrangement Resolution, the Stock Option Plan Resolution and the other matters set out in the notice of meeting accompanying the Circular;
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(fff)
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"Meeting Materials" means the notice of meeting, the Circular and the forms of proxy in respect of the Meeting which accompany the Circular;
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(ggg)
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"MI 61-101" means Multilateral Instrument 61-101 – Protection of Minority Security Holders in Special Transactions, as it may be amended or re-enacted from time to time;
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(hhh)
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"Nasdaq" means The NASDAQ Stock Market (including any applicable tier thereof);
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(iii)
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"New FSV MSA" means the management services agreement required to be entered into among FirstService, Jayset Capital Corp. and Jay S. Hennick in accordance with the terms of the Transitional Services and Separation Agreement, as a continuation of the existing rights and obligations under the FirstService MSA, pursuant to which FirstService (and following the Effective Time, New FSV) will continue to receive the various management and other services being provided by Jayset Capital Corp. to FirstService in respect of the "Residential Real Estate Services" and "Property Services" divisions of FirstService pursuant to the FirstService MSA;
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(jjj)
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"New FSV Multiple Voting Shares" means the shares in the capital of New FSV designated as "Multiple Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "II" to the Plan of Arrangement;
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(kkk)
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"New FSV Special Shares" means the new series of preference shares in the capital of New FSV created pursuant to the Plan of Arrangement, designated as "Preference Shares, Series Special" and having the rights, privileges, restrictions and conditions set out in Exhibit "V" to the Plan of Arrangement;
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(lll)
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"New FSV Stock Option Plan" means the "FirstService Stock Option Plan" of New FSV adopted prior to the Effective Date;
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(mmm)
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"New FSV Subordinate Voting Shares" means the shares in the capital of New FSV designated as "Subordinate Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "II" to the Plan of Arrangement;
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(nnn)
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"OBCA" means the Business Corporations Act (Ontario) and the regulations made thereunder, each as amended from time to time;
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(ooo)
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"Party" means a party to this Agreement, and, for greater certainty, Colliers will be deemed to be a party to this Agreement upon the amalgamation of FirstService and FCRESI pursuant to the Plan of Arrangement, at which time Colliers will succeed to, and be substituted for, and may exercise every right and power of, FirstService and FCRESI under this Agreement and all references herein to FirstService or FCRESI will be deemed replaced with a reference to Colliers;
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(ppp)
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"Person" means and includes an individual, limited or general partnership, limited liability company, limited liability partnership, trust, joint venture, association, body corporate, unlimited liability company, trustee, executor, administrator, legal representative, government (including any Governmental Authority) or any other entity, whether or not having legal status;
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(qqq)
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"Plan of Arrangement" means the plan of arrangement annexed hereto as Schedule "A", as amended, varied or supplemented in accordance with the terms thereof;
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(rrr)
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"Pre-Arrangement Transactions" means the transactions and actions referred to in paragraphs 60 to 68, inclusive, of the Canadian Tax Ruling Application (including the FCRESI Arrangements);
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(sss)
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"Prime Rate" means the floating rate of interest established from time to time by The Toronto-Dominion Bank (and reported to the Bank of Canada) as the reference rate of interest The Toronto-Dominion Bank will use to determine rates of interest payable by its borrowers on Canadian dollar commercial loans made by The Toronto-Dominion Bank to such borrowers in Canada and designated by The Toronto-Dominion Bank as its "prime rate";
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(ttt)
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"Recovery" has the meaning ascribed to such term in Section 6.6;
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(uuu)
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"Representatives" means, collectively, the directors, officers, employees, agents and advisors of a Party at any time and their respective heirs, executors, administrators and other legal representatives and all of their respective successors and assigns;
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(vvv)
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"Securities Act" means the Securities Act (Ontario) and the regulations made thereunder, each as amended from time to time;
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(www)
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"Specified Corporation" has the meaning attributed to such term in subsection 55(1) of the Tax Act;
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(xxx)
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"Standstill Agreement" means the standstill agreement made effective as of the 10th day of February, 2015 among Jay S. Hennick, Henset Capital Inc., New FSV, FSV Holdco, FCRESI and FirstService pursuant to which, among other things, Mr. Hennick and Henset Capital Inc. have agreed to certain restrictions on the disposition of certain property to any Person who is not related to the transferor;
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(yyy)
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"Stock Option Plan Resolution" means the ordinary resolution of FirstService Shareholders approving the New FSV Stock Option Plan to be considered at the Meeting;
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(zzz)
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"Subsidiary" means, at a particular time, a Person Controlled, directly or indirectly, by another Person;
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(aaaa)
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"Tax" or "Taxes" includes all taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges of any nature imposed by any Governmental Authority (including, income, capital (including large corporations), withholding, consumption, sales, use, transfer, goods and services or other value-added, excise, customs, net worth, stamp, registration, franchise, payroll, employment, Canada Pension Plan contributions, Employment Insurance premiums, health, education, business, school, property, local improvement, development, education, development and occupation taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and charges), together with all fines, interest, penalties on or in respect of, or in lieu of or for non-collection or non-remittance of, those taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges;
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(bbbb)
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"Tax Act" means the Income Tax Act (Canada) and the regulations made thereunder, each as amended from time to time;
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(cccc)
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"Tax Benefit" has the meaning ascribed to such term in paragraph 6.7(b)(i);
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(dddd)
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"Tax Gross-Up" means, with respect to any particular Indemnity Payment, such additional amount as is necessary to place the Indemnified Person in the same after-tax position as it would have been in had such Indemnity Payment been received tax free by the Indemnified Party. The Tax Gross-Up amount will be calculated by using the applicable combined Canadian federal and provincial income tax rate and/or the foreign tax rate applicable to the Indemnified Person and, except as provided in Section 6.7, without regard to any losses, credits, refunds or deductions that the Indemnified Person may have that could affect the amount of Tax payable on any such Indemnity Payment;
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(eeee)
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"Tax Ruling and Opinion" means, collectively, the Canadian Tax Ruling and the U.S. Tax Opinion;
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(ffff)
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"Third Party Claim" means any Claim asserted against an Indemnified Person that is paid or payable to or claimed by any Person who is not a Party;
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(gggg)
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"Transaction Costs" means all fees, costs and expenses incurred directly in connection with the Pre-Arrangement Transactions and the Arrangement, including financing fees, advisory and other professional expenses, printing and mailing costs associated with the Meeting Materials and any payments made to FirstService Shareholders who properly exercise their Dissent Rights, but specifically excludes fees, costs, expenses and payment obligations incurred in connection with an obligation to indemnify in Article 6;
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(hhhh)
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"Transitional Services and Separation Agreement" means an agreement to be made between FirstService, New FSV, FSV Holdco, FCRESI, Jay S. Hennick, Jayset Capital Corp., Jayset Management CIG Inc. and Jayset Management FSV Inc. for the provision of transitional services and facilities by or to Colliers and its Affiliates, on the one hand, and by or to New FSV and its Affiliates, on the other hand, and in respect of separation, transition and management services matters resulting from the completion of the Arrangement (including providing for the Colliers MSA and the New FSV MSA), which agreement will be on terms and conditions as agreed among the parties thereto;
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(iiii)
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"TSX" means the Toronto Stock Exchange; and
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(jjjj)
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"U.S. Tax Opinion" means an opinion of PricewaterhouseCoopers LLP to be dated at or prior to the Effective Date, addressed to the Board and the board of directors of New FSV and otherwise in a form acceptable to the Board, confirming, based on the provisions of the IRC, Treasury Regulations, published rulings of the Internal Revenue Service, published administrative positions of the Internal Revenue Service, the Convention Between Canada and the United States of America with Respect to Taxes on Income and on Capital, signed September 26, 1980, as amended, and U.S. court decisions that are applicable and, in each case, as in effect and available, the U.S. federal income tax consequences of certain aspects of the Arrangement and the Pre-Arrangement Transactions.
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1.2 Construction. In this Agreement, unless otherwise expressly stated or the context otherwise requires:
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(a)
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the division of this Agreement into Articles, Sections and subsections and the use of headings are for convenience of reference only and do not affect the construction or interpretation hereof;
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(b)
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the words "hereunder", "hereof" and similar expressions refer to this Agreement and not to any particular Article, Section, subsection or paragraph and references to "Articles", "Sections", "subsections" and "paragraphs" are to Articles, Sections, subsections and paragraphs of this Agreement;
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(c)
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words importing the singular include the plural and vice versa, and words importing any gender include all genders and the neuter;
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(d)
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the word "including", when following any general term or statement, is not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement;
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(e)
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a reference to a statute or code includes every regulation made pursuant thereto, all amendments to the statute or code or to any such regulation in force from time to time, and any statute, code or regulation which supplements or supersedes such statute, code or regulation;
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(f)
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if any date on which any action is required to be taken under this Agreement is not a Business Day, such action will be required to be taken on the next succeeding Business Day; and
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(g)
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a reference to the knowledge of a Party means to the best of the knowledge of any of the officers of such Party after due enquiry.
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1.3 Currency. Except where otherwise specified, all references to currency herein are to the lawful money of the United States of America and "$" and "US$" refer to United States dollars.
1.4 Schedule. The following schedule is attached to this Agreement and forms a part hereof:
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Schedule "A"
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–
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Plan of Arrangement
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ARTICLE 2
THE ARRANGEMENT
2.1 Arrangement. Each of the Parties agrees that the Arrangement will be implemented in accordance with and subject to the terms and conditions contained in this Agreement and on the terms set forth in the Plan of Arrangement.
2.2 Effective Date and Effective Time. The Arrangement will become effective on the Effective Date and the steps to be carried out pursuant to the Arrangement will become effective at the Effective Time and in the order set out in the Plan of Arrangement without any further act or formality, except as contemplated in the Plan of Arrangement.
2.3 Interim Order. Following the execution of this Agreement, FirstService will, at a time to be determined exclusively by FirstService, apply to the Court pursuant to Section 182 of the OBCA and prepare, file and pursue an application for the Interim Order, which will provide, among other things:
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(a)
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for the calling and holding of the Meeting for the purpose of, among other things, considering the Arrangement Resolution;
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(b)
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for the class of Persons to whom notice is to be provided in respect of the Arrangement and the Meeting and for the manner in which such notice is to be provided;
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|
(c)
|
that the requisite approval for the Arrangement Resolution will be:
|
| |
(i)
|
not less than 66⅔% of the votes cast by the holders of FirstService Subordinate Voting Shares present in person or represented by proxy at the Meeting and voting separately as a class;
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| |
(ii)
|
not less than 66⅔% of the votes cast by the holders of FirstService Multiple Voting Shares present in person or represented by proxy at the Meeting and voting separately as a class; and
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| |
(iii)
|
not less than a majority of the votes cast by the holders of FirstService Subordinate Voting Shares present in person or represented by proxy at the Meeting and voting separately as a class, other than votes cast in respect of FirstService Subordinate Voting Shares that are beneficially owned by any Interested FirstService Subordinate Voting Shareholder or over which control or direction is exercised by any Interested FirstService Subordinate Voting Shareholder;
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|
(d)
|
that, in all other respects, the terms, restrictions and conditions of the constating documents of FirstService, including quorum requirements and all other matters, shall apply in respect of the Meeting;
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(e)
|
for the grant of Dissent Rights as provided in Article 4 of the Plan of Arrangement;
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|
(f)
|
for the notice requirements with respect to the presentation of the application to the Court for the Final Order;
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(g)
|
for the confirmation of the record date for the Meeting; and
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(h)
|
that the Meeting may be adjourned or postponed from time to time by the Board in accordance with the terms of this Agreement without the need for additional approval of the Court.
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2.4 Meeting and Meeting Materials.
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(a)
|
Subject to the terms of this Agreement and the receipt of the Interim Order, FirstService will, at a time to be determined exclusively by FirstService, convene and conduct the Meeting in accordance with the Interim Order and Applicable Law for the purpose of considering the Arrangement Resolution and any other proper purpose as may be set out in the Meeting Materials.
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(b)
|
At a time to be determined exclusively by FirstService, but in any event no later than 21 days prior to the date of the Meeting, FirstService will: (i) prepare the Meeting Materials (and any necessary amendments or supplements to the Circular), together with any other documents required by Applicable Law in connection with the Meeting; and (ii) cause the Meeting Materials and other documentation required under Applicable Law in connection with the Meeting to be mailed and filed as required by the Interim Order and in accordance with Applicable Law. The Parties agree to cooperate with each other in all respects in the preparation of the Circular and any amendments or supplements thereto.
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2.5 Final Order. If the Interim Order and the approval of the FirstService Shareholders as set out in the Interim Order are obtained, FirstService will, at a time to be determined exclusively by FirstService and subject to the terms of this Agreement, thereafter take all commercially reasonable steps necessary or desirable to submit the Arrangement to the Court and prepare, file and pursue an application for the Final Order and, to the extent within its power and is commercially reasonable, otherwise carry out the terms of the Interim Order.
2.6 Effecting the Arrangement and Ancillary Filings with the Director. Subject to the rights of termination contained in Section 7.2, upon the FirstService Shareholders approving the Arrangement as set out in the Interim Order and Applicable Law, FirstService obtaining the Final Order and the satisfaction (or waiver, if applicable) of the other conditions herein contained in favour of each of the Parties, the Parties covenant and agree to, at a time to be determined exclusively by FirstService, file with the Director any and all documents (including, with respect to the filing to be made pursuant to subsection 183(1) of the OBCA, the Articles of Arrangement) and to exchange (to the extent not previously exchanged) such other documents as may be necessary or desirable to give effect to the Arrangement and implement Section 3.1 of the Plan of Arrangement. The completion of the Arrangement will take place at the offices Fogler, Rubinoff LLP, 77 King Street West, Suite 3000, P.O. Box 95, Toronto-Dominion Centre, Toronto, Ontario, Canada M5K 1G8 at 8:00 a.m. (Toronto, Ontario local time) on the Effective Date, or at such other time and place as may be agreed to by the Parties.
2.7 Sole Discretion of FirstService. Notwithstanding any other provision of this Agreement, or the adoption of the Arrangement Resolution by the FirstService Shareholders, the obligations of FirstService under this Article 2 and elsewhere in this Agreement are subject to:
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(a)
|
FirstService's sole and absolute right to determine whether to proceed with the Arrangement and to determine the timing of the completion of the Arrangement, or any prior condition thereto;
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|
(b)
|
FirstService's sole and absolute right to terminate this Agreement pursuant to Section 7.2; and
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|
(c)
|
the Parties' right to amend this Agreement or the Plan of Arrangement, as applicable, pursuant to Section 7.1.
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The Board will have the authority to revoke the Arrangement Resolution at any time prior to the issuance of the Certificate of Arrangement giving effect to the Arrangement without notice to or the further approval of the FirstService Shareholders or the other Parties and without liability to any of them.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Mutual Representations and Warranties of the Parties. Each Party represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement and the Pre-Arrangement Transactions:
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(a)
|
such Party (other than FSV Holdco) is a corporation existing under the laws of the Province of Ontario and FSV Holdco is an unlimited liability company existing pursuant to the laws of the Province of British Columbia, and each Party has the requisite power and authority to enter into this Agreement and, subject to obtaining the requisite approvals contemplated hereby or in the Circular, to perform its obligations hereunder;
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|
(b)
|
each of this Agreement and the Standstill Agreement has been duly authorized, executed and delivered by such Party and is a legal, valid and binding obligation of such Party, enforceable against such Party by each of the other parties thereto in accordance with its terms, subject to bankruptcy, fraudulent transfer, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies and the enforceability of any limitations of liability or other exculpatory provisions or indemnities that purport to limit or exculpate a Person from or indemnify such Person for, liabilities imposed by Applicable Law on such Person;
|
|
(c)
|
the execution and delivery of this Agreement, and the completion of the transactions contemplated herein and in the Plan of Arrangement have been duly approved by the board of directors of such Party and, except as disclosed in the Circular or to the other Parties or except as would not reasonably be expected to have a Material Adverse Effect on such Party, the execution and delivery of this Agreement by such Party and the consummation of the Arrangement and the Pre-Arrangement Transactions will not (or would not with the giving of notice, the passage of time or the happening of any other event or circumstance):
|
| |
(i)
|
result in the breach of, or violate any term or provision of, the articles or by-laws of such Party;
|
| |
(ii)
|
conflict with, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any agreement, instrument, license, permit or authority to which such Party is a party or by which such Party is bound, or to which any of the assets of such Party are subject, or result in the creation of any Encumbrance upon any of the assets of such Party under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a Material Adverse Effect on such Party; or
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| |
(iii)
|
violate any provisions of any Applicable Law or any judicial or administrative award, judgment, order or decree applicable and known to such Party, the violation of which would have a Material Adverse Effect on such Party;
|
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(d)
|
no dissolution, winding up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or proposed in respect of such Party, except as contemplated by the Plan of Arrangement, the Pre-Arrangement Transactions, the Tax Ruling and Opinion or the Canadian Tax Ruling Application; and
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(e)
|
except as disclosed to the other Parties or as contemplated in this Agreement, the Circular, the Interim Order or the Final Order, there is no requirement for such Party to make any filing with, give any notice to or obtain any licence, permit, certificate, registration, authorization, consent or approval of, any Governmental Authority as a condition to the lawful consummation of the Arrangement and the Pre-Arrangement Transactions where failure to comply would reasonably be expected to have a Material Adverse Effect on such Party.
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3.2 Representations and Warranties of FirstService. FirstService represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement and the Pre-Arrangement Transactions:
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(a)
|
the authorized capital of FirstService consists of an unlimited number of preference shares, issuable in series, of which are authorized 2,500 Series 1 preference shares and an unlimited number of 7% cumulative preference shares, series 1, an unlimited number of FirstService Subordinate Voting Shares and an unlimited number of FirstService Multiple Voting Shares, of which, as at the date hereof, 34,644,911 FirstService Subordinate Voting Shares and 1,325,694 FirstService Multiple Voting Shares, and no other shares, are issued and outstanding;
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(b)
|
FirstService is the owner of all of the issued and outstanding shares of FSV Holdco (being 100 common shares in the capital of FSV Holdco), with good and marketable title thereto; and
|
|
(c)
|
following the effectiveness of the FCRESI Arrangements (pursuant to which it is expected that up to 2,010,000 FirstService New Subordinate Voting Shares may be issued), FirstService will be the owner of all of the issued and outstanding shares of FCRESI, with good and marketable title thereto.
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3.3 Representations and Warranties of FSV Holdco. FSV Holdco represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement and the Pre-Arrangement Transactions:
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(a)
|
the authorized capital of FSV Holdco consists of an unlimited number of common shares; and
|
|
(b)
|
no Person holds any securities convertible into common shares of FSV Holdco or has any agreement, warrant, option or any other right capable of becoming an agreement, warrant or option for the purchase or other acquisition of any unissued shares of FSV Holdco other than as contemplated by this Agreement, the Plan of Arrangement, the Pre-Arrangement Transactions, the Tax Ruling and Opinion or the Canadian Tax Ruling Application.
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3.4 Representations and Warranties of New FSV. New FSV represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement and the Pre-Arrangement Transactions:
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(a)
|
the authorized capital of New FSV consists of an unlimited number of preference shares, issuable in series, an unlimited number of New FSV Subordinate Voting Shares and an unlimited number of New FSV Multiple Voting Shares, of which, as at the date hereof, no such shares are issued and outstanding; and
|
|
(b)
|
New FSV has no assets, no liabilities and it has carried on no business other than relating to, and contemplated by, this Agreement, the Plan of Arrangement, the Pre-Arrangement Transactions, the Tax Ruling and Opinion or the Canadian Tax Ruling Application.
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3.5 Representations and Warranties of FCRESI. FCRESI represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement and the Pre-Arrangement Transactions:
|
(a)
|
the authorized capital of FCRESI consists of an unlimited number of Class A Common Shares and an unlimited number of Class B Common Shares; and
|
|
(b)
|
following completion of the FCRESI Arrangements, no Person will hold any securities convertible into Class A Common Shares and/or Class B Common Shares of FCRESI or have any agreement, warrant, option or any other right capable of becoming an agreement, warrant or option for the purchase or other acquisition of any unissued shares of FCRESI other than as contemplated by this Agreement, the Plan of Arrangement, the Pre-Arrangement Transactions, the Tax Ruling and Opinion or the Canadian Tax Ruling Application.
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3.6 Survival of Representations, Warranties and Covenants.
|
(a)
|
Subject to subsection 3.6(b), all representations, warranties and covenants made by the Parties contained in this Agreement will remain operative and in full force and effect and, notwithstanding any investigation made by or on behalf of any Party or any other Person, or any knowledge of the beneficiaries of such representations, warranties and covenants or the knowledge of any other Person, until the earlier of the termination of this Agreement in accordance with Section 7.2 or the Effective Date, whereupon such representations, warranties and covenants will expire and be of no further force or effect.
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|
(b)
|
The covenants made by each Party contained in Sections 4.4 and 5.4 of this Agreement will survive the Effective Date and the completion of the Arrangement and shall continue in full force and effect for the benefit of each other Party, subject to, in respect of Section 4.4, Article 6.
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ARTICLE 4
COVENANTS
4.1 Mutual Covenants of the Parties. Subject to the terms of this Agreement, each Party will:
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(a)
|
use all commercially reasonable efforts and do all things reasonably required of it to cause the Arrangement to become effective on such date as FirstService may determine;
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|
(b)
|
do and perform all such acts and things, and execute and deliver all such agreements (including the Transitional Services and Separation Agreement, the Colliers MSA and the New FSV MSA), assurances, notices and other documents and instruments, as may reasonably be required to facilitate the carrying out of the intent and purpose of this Agreement;
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|
(c)
|
prior to the Effective Date, cooperate with and assist each other Party in dealing with transitional and other matters relating to or arising from the Pre-Arrangement Transactions, the Transitional Services and Separation Agreement, the Arrangement or this Agreement; and
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(d)
|
prior to the Effective Date, cooperate in obtaining the Tax Ruling and Opinion and making such amendments to this Agreement as may be necessary to obtain the Tax Ruling and Opinion, implement the Plan of Arrangement or as may be desired by FirstService to enable it to carry out transactions deemed advantageous by it for the separation of its businesses as herein contemplated.
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4.2 Covenants of FirstService. Subject to the terms of this Agreement, FirstService covenants and agrees to (and will cause each of its Subsidiaries, as applicable, to):
|
(a)
|
not, on or before the Effective Date, perform any act or enter into any transaction that could interfere or could be inconsistent with the completion of any Pre-Arrangement Transaction or the Arrangement or the issuance of the Tax Ruling and Opinion or the effective application of the Tax Ruling and Opinion to the Arrangement;
|
|
(b)
|
on or before the Effective Date, perform the obligations required to be performed by FirstService under the Plan of Arrangement and do all such other acts and things, and execute and deliver all such agreements, assurances, notices and other documents and instruments, as may be necessary or desirable and are within its power and control in order to carry out and give effect to the Pre-Arrangement Transactions, the Arrangement and any transactions necessary for the issuance and/or effectiveness of the Tax Ruling and Opinion, including using all commercially reasonable efforts to obtain:
|
| |
(i)
|
the approval of FirstService Shareholders required for the implementation of the Arrangement;
|
| |
(ii)
|
the approval of FirstService Shareholders required for the adoption of the New FSV Stock Option Plan;
|
| |
(iii)
|
such other consents, orders, rulings or approvals and assurances as are necessary or desirable for the implementation of the Pre-Arrangement Transactions and the Arrangement, including those referred to in Section 5.1; and
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| |
(iv)
|
satisfaction of the other conditions precedent referred to in Sections 5.1 and 5.2;
|
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(c)
|
on or before the Effective Date, assist and cooperate in the preparation and filing with all applicable securities commissions or similar securities regulatory authorities in Canada and the United States of all necessary applications to seek exemptions, if required, from the prospectus, registration and other requirements of the applicable securities laws of jurisdictions in Canada and the United States for the issue by FirstService of the FirstService New Subordinate Voting Shares, the FirstService New Multiple Voting Shares, the FirstService SV Special Shares and the FirstService MV Special Shares, by Colliers of the Colliers Subordinate Voting Shares and the Colliers Multiple Voting Shares and by New FSV of the New FSV Subordinate Voting Shares, New FSV Multiple Voting Shares and New FSV Special Shares, and other exemptions that are necessary or desirable in connection with the Pre-Arrangement Transactions and the Arrangement; and
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|
(d)
|
prior to the Effective Date, obtain confirmation from the TSX and Nasdaq of the continued listing of the Colliers Subordinate Voting Shares, and jointly with New FSV, make application to list the New FSV Subordinate Voting Shares issuable pursuant to the Arrangement, on the TSX and the Nasdaq.
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4.3 Covenants of FSV Holdco, New FSV and FCRESI. Subject to the terms of this Agreement, each of FSV Holdco, New FSV and FCRESI covenants and agrees to (and will cause each of its Subsidiaries, as applicable, to):
|
(a)
|
not, on or before the Effective Date, perform any act or enter into any transaction that could interfere or could be inconsistent with the completion of any Pre-Arrangement Transaction or the Arrangement or the issuance of the Tax Ruling and Opinion or the effective application of the Tax Ruling and Opinion to the Arrangement;
|
|
(b)
|
on or before the Effective Date, perform the obligations required to be performed by it under the Plan of Arrangement and do all such other acts and things, and execute and deliver all such agreements, assurances, notices and other documents and instruments, as may be necessary or desirable and are within its power and control in order to carry out and give effect to the Pre-Arrangement Transactions, the Arrangement and any transactions necessary for the issuance and/or effectiveness of the Tax Ruling and Opinion, including using all commercially reasonable efforts to obtain (on its own or in cooperation with FirstService, as applicable):
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| |
(i)
|
the Interim Order and the Final Order;
|
| |
(ii)
|
the approval or acceptance of the listing of the New FSV Subordinate Voting Shares on the TSX and Nasdaq;
|
| |
(iii)
|
such other consents, orders, rulings or approvals and assurances as are necessary or desirable for the implementation of the Pre-Arrangement Transactions and the Arrangement, including those referred to in Section 5.1; and
|
| |
(iv)
|
satisfaction of the other conditions precedent referred to in Sections 5.1 and 5.2;
|
|
(c)
|
obtain the consent of FirstService prior to issuing any press releases or otherwise making public statements with respect to this Agreement or the consummation of the Arrangement;
|
|
(d)
|
in the case of New FSV, not issue shares in its capital stock prior to the Effective Time and will issue such initial shares only in accordance with the terms of the Arrangement; and
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|
(e)
|
prior to the Effective Date, make such amendments to the Canadian Tax Ruling Application, this Agreement and the Plan of Arrangement and apply for such amendments or supplements to or replacements of the Canadian Tax Ruling as may be reasonably necessary to obtain or give effect to the Tax Ruling and Opinion or to undertake any transaction contemplated therein or to implement the Plan of Arrangement, or as otherwise may be determined by FirstService, in its sole discretion, to enable FirstService (or any Subsidiary of FirstService) to carry out any transactions deemed advantageous by FirstService for the separation and reorganization of its businesses, and the assets and liabilities referable thereto, as herein contemplated.
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4.4 Tax-Related Covenants.
|
(a)
|
Each Party covenants and agrees with and in favour of each other Party that: (i) it and any successor thereto will not, on or before the Effective Date, perform any act or enter into any transaction or permit any transaction within its control to occur that could reasonably be considered to interfere or be inconsistent with the Tax Ruling and Opinion; (ii) neither it nor any successor thereto will perform any act or enter into any transaction or permit any transaction, in each such case, within its control to occur that would cause FirstService or any Affiliate of FirstService that is a corporation to cease to be a Specified Corporation on or prior to the Effective Date, except as contemplated herein or in the Tax Ruling and Opinion or the Canadian Tax Ruling Application; and (iii) it and any successor thereto will fulfill, and will cause any Person Controlled, after the Effective Date, by it, to fulfill, all representations or undertakings provided by it, or on its behalf and made with its knowledge and consent, in the Canadian Tax Ruling Application or otherwise provided in writing to the CRA or tax counsel in connection with the Tax Ruling and Opinion.
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(b)
|
Each of FirstService and New FSV covenants and agrees with and in favour of each other that, for a period of three years after the Effective Date, it will not (and that it will cause its Subsidiaries to not) take any action, omit to take any action or enter into any transaction that could cause the Arrangement or any transaction contemplated by this Agreement to be taxed in a manner inconsistent with that provided for in the Tax Ruling and Opinion without obtaining a tax ruling or an opinion of a nationally recognized accounting firm or law firm that such action, omission or transaction will not have such effect.
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|
(c)
|
Each of FirstService and New FSV covenants and agrees with and in favour of each other to: (i) file its Tax returns and make all other filings, notifications, designations and elections (including section 85 elections under the Tax Act, and the corresponding provisions of any applicable provincial tax legislation), pursuant to the Tax Act and/or applicable provincial or foreign tax legislation, that are contemplated in the Tax Ruling and Opinion, the Plan of Arrangement or this Agreement, and (ii) to make adjustments to its stated capital accounts in accordance with the terms of the Plan of Arrangement following the Effective Date. Where an agreed amount is to be included in any election referred to in paragraph 4.4(c)(i), such amount will be within the range contemplated by the Tax Act and/or applicable provincial or foreign tax legislation, as the case may be, and will be the amount, if any, contemplated by the Tax Ruling and Opinion, the Plan of Arrangement and this Agreement.
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|
(d)
|
Each of FirstService and New FSV covenants and agrees with and in favour of each other to cooperate in the preparation, execution and filing, in the form and within the time limits prescribed or otherwise contemplated in the Tax Act, of all Tax returns, filings, notifications, designations and elections under the Tax Act as contemplated in the Canadian Tax Ruling Application, Tax Ruling and Opinion, the Plan of Arrangement and this Agreement (and any similar Tax returns, elections, notifications or designations that may be required under applicable provincial or foreign tax legislation).
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ARTICLE 5
CONDITIONS AND EFFECTIVE DATE OBLIGATIONS
5.1 Conditions Precedent. In addition to, and without in any way limiting, FirstService's rights referred to under Section 2.7 and FirstService's rights specifically provided for elsewhere in this Agreement, the obligation of FirstService to complete the transactions contemplated by this Agreement and to file Articles of Arrangement to give effect to the Arrangement are subject to the satisfaction of the following conditions:
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(a)
|
the Interim Order and the Final Order will have each been obtained on terms consistent with this Agreement and shall not have been set aside or modified in a manner unacceptable to the FirstService, in its sole discretion, whether on appeal or otherwise;
|
|
(b)
|
the Pre-Arrangement Transactions will have been completed;
|
|
(c)
|
the Arrangement Resolution shall have been approved by the requisite number of votes cast by the FirstService Shareholders at the Meeting in accordance with the provisions of the Interim Order and any applicable regulatory requirements;
|
|
(d)
|
the Stock Option Plan Resolution shall have been approved by the requisite number of votes cast by the FirstService Shareholders at the Meeting in accordance with any applicable regulatory requirements;
|
|
(e)
|
the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to FirstService, in its sole discretion, shall have been filed with the Director together with the Final Order in accordance with subsection 183(1) of the OBCA;
|
|
(f)
|
all consents, orders, rulings, approvals, opinions and assurances, including regulatory, judicial, third party and advisor opinions, approvals, orders and exemptions, required or necessary, in the sole discretion of FirstService, for the completion of the transactions provided for in this Agreement, the Plan of Arrangement, the Pre-Arrangement Transactions and the Tax Ruling and Opinion, and for New FSV to file a prospectus in Canada under, or rely on a prospectus exemption in Ontario pursuant to, which New FSV Subordinate Voting Shares (or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, New FSV Subordinate Voting Shares) may be distributed without having to comply with Section 12.3 of National Instrument 41-101 – General Prospectus Requirements or Section 3.2 of Ontario Securities Commission Rule 56-501 – Restricted Shares, as applicable, shall have been obtained or received, and none of the consents, orders, exemptions, rulings, approvals, opinions or assurances contemplated herein shall contain terms or conditions or require undertakings or security that are considered unsatisfactory or unacceptable by FirstService, in its sole discretion;
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|
(g)
|
no action shall have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to, the Arrangement and there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement, the Pre-Arrangement Transactions, the Tax Ruling and Opinion or the Canadian Tax Ruling Application and no cease trading or similar order with respect to any securities of any of the Parties shall have been issued and remain outstanding;
|
|
(h)
|
no law, regulation or policy shall have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the completion of the Arrangement or the Tax Ruling and Opinion or their effective application to the Arrangement, including any material change to the income tax laws of Canada or the United States, or any province, state or territory thereof;
|
|
(i)
|
the Canadian Tax Ruling having been received by FirstService and New FSV, in form and substance satisfactory to FirstService, will not have been withdrawn or modified and will remain in full force and effect and all of the transactions referred to in the Canadian Tax Ruling as occurring on or prior to the Effective Time will have occurred and all conditions or terms of the Canadian Tax Ruling shall have been satisfied;
|
|
(j)
|
the U.S. Tax Opinion will have been received by FirstService and New FSV, in form and substance satisfactory to FirstService, will not have been withdrawn or modified and all of the transactions referred to in the U.S. Tax Opinion as occurring on or prior to the Effective Time will have occurred and all conditions or terms of the U.S. Tax Opinion shall have been satisfied;
|
|
(k)
|
the Fairness Opinion will have been received by the Board and will not have been withdrawn or modified;
|
|
(l)
|
there shall not, as of the Effective Date, be FirstService Shareholders that hold, in the aggregate, in excess of 0.1% of all outstanding FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares that have validly exercised their Dissent Rights and not withdrawn such exercise;
|
|
(m)
|
the Colliers Subordinate Voting Shares (including shares issuable on exercise of options issued under the Colliers Stock Option Plan) shall continue to be listed on the TSX and the New FSV Subordinate Voting Shares (including shares issuable on exercise of options granted under the New FSV Stock Option Plan) to be issued pursuant to the Arrangement shall have been conditionally approved for listing on the TSX, subject to compliance with the normal listing requirements of the TSX;
|
|
(n)
|
the Colliers Subordinate Voting Shares (including shares issuable on exercise of options issued under the Colliers Stock Option Plan) shall continue to be listed on Nasdaq and the New FSV Subordinate Voting Shares (including shares issuable on exercise of options granted under the New FSV Stock Option Plan) to be issued pursuant to the Arrangement shall have been accepted for listing on Nasdaq, subject to official notice of issuance;
|
|
(o)
|
there shall have not developed, occurred or come into effect or existence any event, action or occurrence of national or international consequences, any governmental law or regulation, state, condition or major financial occurrence, including any act of terrorism, war or like event, or other occurrence of any nature, which, in the sole discretion of FirstService, materially adversely affects, or may materially adversely affect, the financial markets in Canada or the United States or the business, financial condition, operations or affairs of FirstService, Colliers or New FSV going forward; and
|
|
(p)
|
this Agreement shall not have been terminated pursuant to the provisions of Section 7.2.
|
The conditions contained in this Section 5.1 are for the sole benefit of FirstService and may be waived, in whole or in part, by FirstService at any time. Such conditions will not give rise to or create any duty on the part of FirstService or the Board to waive or not to waive such conditions and will not in any way limit FirstService's right to terminate this Agreement as set forth in Section 7.2 or alter the consequences of any such termination from those specified in Article 7. Any determination made by FirstService prior to the Arrangement concerning the satisfaction and waiver of any or all of the conditions set forth in this Section 5.1 will be final and conclusive, and neither FirstService nor any of its Affiliates or Representatives shall have any liability as a result of any such determination.
5.2 Conditions to Obligation of Each Party. The obligation of each Party to complete the transactions contemplated by this Agreement is further subject to the conditions (which may be waived by such Party without prejudice to its right to rely on any other condition in its favour) that: (i) the covenants of each other Party to be performed on or before the Effective Date pursuant to the terms of this Agreement will have been duly performed in all material respects; (ii) except as set forth in this Agreement, the Plan of Arrangement, the Tax Ruling and Opinion or the Canadian Tax Ruling Application, the representations and warranties of each other Party will be true and correct in all material respects as at the Effective Date, with the same effect as if such representations and warranties had been made at, and as of, such date; (iii) the Standstill Agreement shall have been entered into by all of the parties thereto (including the Parties) on or prior to the date hereof; and (iv) each of the Transitional Services and Separation Agreement and the New FSV MSA shall have been entered into by all of the parties thereto, and the FirstService MSA shall have been amended and restated by the parties thereto (and will thereafter be referred to as the Colliers MSA), in each case, on or prior to the transfer to FSV Holdco of the "FirstService Residential" residential real estate services division and "FirstService Brands" property services division of FirstService, and the assets and liabilities respectively referable to such divisions, pursuant to the Pre-Arrangement Transactions.
5.3 Merger of Conditions.
|
(a)
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Subject to subsection 5.3(b), the conditions set out in Sections 5.1 and 5.2 will be conclusively deemed to have been satisfied, waived or released on the filing by FirstService of Articles of Arrangement under the OBCA to give effect to the Plan of Arrangement.
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(b)
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The conditions set out in subsections 5.1(a), 5.1(c), 5.1(e), 5.1(h), as they relate to the Canadian Tax Ruling and/or the U.S. Tax Opinion, subsection 5.1(i), as it relates to the Canadian Tax Ruling, subsection 5.1(j), as it relates to the U.S. Tax Opinion, and 5.1(m) may not be waived by FirstService.
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5.4 Expenses. The Parties agree that all Transaction Costs will be the responsibility of, and will be paid for by, FirstService, provided, however, that New FSV will be solely responsible for, and will pay, the fees, costs and expenses in connection with: (a) arranging any credit facilities or other financing for New FSV or FSV Holdco as part of, or following, the Arrangement; and (b) listing the New FSV Subordinate Voting Shares on the TSX and Nasdaq and settling and delivering the New FSV Subordinate Voting Shares on completion of the Arrangement (including the fees for obtaining a CUSIP for such shares), including the associated fees and expenses of the transfer agent of New FSV and the lenders under the aforementioned credit facilities.
ARTICLE 6
INDEMNITIES
6.1 Indemnity by FirstService. FirstService will indemnify and hold harmless New FSV and its Representatives against any Loss suffered or incurred, directly or indirectly, by such Indemnified Person as a result of or in connection with a breach or non-compliance by FirstService of a covenant contained in Section 4.4.
6.2 Indemnity by New FSV. New FSV will indemnify and hold harmless FirstService and its Representatives against any Loss suffered or incurred, directly or indirectly, by such Indemnified Person as a result of or in connection with a breach or non-compliance by New FSV of a covenant contained in Section 4.4.
6.3 Procedure for Third Party Claims.
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(a)
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Promptly after an Indemnified Person has received notice or has knowledge of any pending or threatened Third Party Claim, the Indemnified Person shall give the Indemnifying Party written notice (a "Claim Notice") describing in reasonable detail the nature and basis of the Third Party Claim and, if ascertainable, the amount in dispute under the Third Party Claim and the estimated amount of the Loss that has been or may be sustained by the Indemnified Person.
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(b)
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Subject to the limitations set forth in this subsection 6.3(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Person within thirty (30) days after the Indemnifying Party has received a Claim Notice in respect of the Third Party Claim) to elect to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Person and at the Indemnifying Party's sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party:
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(i)
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has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Person in respect thereof; and
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(ii)
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if requested by the Indemnified Person, has provided evidence reasonably satisfactory to the Indemnified Person of the Indemnifying Party's financial ability to pay any Losses resulting from the Third Party Claim;
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provided, however, that the Indemnified Person may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if:
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(iii)
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the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such thirty (30) day period;
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(iv)
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the Indemnifying Party shall fail to conduct such defense diligently and in good faith;
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(v)
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the Indemnified Person shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Person would present such counsel with an actual or potential conflict of interest; or
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(vi)
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the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Person;
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then, in each such case, the Indemnified Person shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party's sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Person shall, and shall cause their respective Affiliates and Representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Person in connection therewith. In addition, the Party controlling the defense of any Third Party Claim shall keep the non-controlling Party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling Party with respect thereto.
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(c)
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Except as set forth below, no Third Party Claim may be settled or compromised:
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(i)
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by the Indemnified Person without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed); or
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(ii)
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by the Indemnifying Party without the prior written consent of the Indemnified Person (not to be unreasonably withheld, conditioned or delayed).
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Notwithstanding the foregoing:
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(iii)
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the Indemnified Person shall have the right to pay, settle or compromise any Third Party Claim, provided that in such event the Indemnified Person shall waive all rights against the Indemnifying Party to indemnification under this Article 6 with respect to such Third Party Claim unless the Indemnified Person shall have sought the consent of the Indemnifying Party to such payment, settlement or compromise and such consent shall have been unreasonably withheld, conditioned or delayed; and
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(iv)
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the Indemnifying Party shall have the right to consent to the entry of a judgment or enter into a settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Person if the judgment or settlement:
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(A)
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involves only the payment of money damages (all of which will be paid in full by the Indemnifying Party concurrently with the effectiveness thereof);
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(B)
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will not encumber any of the assets of the Indemnified Person and will not contain any restriction or condition that would apply to or adversely affect the Indemnified Person or the conduct of its business; and
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(C)
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includes, as a condition to any settlement or other resolution, a complete and irrevocable release of the Indemnified Person from all liability in respect of such Third Party Claim and includes no admission of wrongdoing.
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6.4 Procedure for Direct Claims. In the event that an Indemnified Person advances a Direct Claim, the Indemnified Person shall, as promptly as practicable, deliver to the Indemnifying Party a written notice that contains: (a) a description and the amount (the "Claimed Amount") of any Losses incurred or suffered by the Indemnified Person; (b) a statement that the Indemnified Person is entitled to indemnification under this Article 6 and a reasonable explanation of the basis therefor; and (c) a demand for payment by the Indemnifying Party. Within thirty (30) days after delivery of such written notice, the Indemnifying Party shall deliver to the Indemnified Person a written response in which the Indemnifying Party shall: (i) agree that the Indemnified Person is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party of the Claimed Amount); (ii) agree that the Indemnified Person is entitled to receive part, but not all, of the Claimed Amount (the "Agreed Amount") (in which case such response shall be accompanied by payment by the Indemnifying Party of the Agreed Amount); or (iii) contest that the Indemnified Person is entitled to receive any of the Claimed Amount. If the Indemnifying Party contests the payment of all or any part of the Claimed Amount, the Indemnifying Party and the Indemnified Person shall use good faith efforts to resolve such dispute as promptly as practicable. If such dispute is not resolved within 60 days or such longer period as may reasonably be required in order to properly exchange all relevant information following the delivery by the Indemnifying Party of such response, the Indemnified Person and the Indemnifying Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with Section 8.10.
6.5 Failure to Give Timely Notice. The failure to give timely notice under this Article 6 will not affect the rights or obligations of any Party except to the extent (and only to the extent) that, as a result of such failure, the Party that was entitled to receive such notice suffered damage or was otherwise adversely prejudiced.
6.6 Reductions and Subrogation. If at any time subsequent to the making of any Indemnity Payment, the amount of the indemnified Loss is reduced (other than any reduction in the amount of the indemnified Loss that arises as a consequence of the realization of any Tax Benefit (as such term is defined in subsection 6.7(b)) by the Indemnified Person or any of its Affiliates) pursuant to any insurance coverage or pursuant to any claim, recovery, settlement or payment by or against any other Person (a "Recovery"), such that, taking the Recovery into account, the amount of the Indemnity Payment in respect of the Loss exceeds the amount of the Loss, the Indemnified Person must promptly repay to the Indemnifying Party the amount of the excess (the "Excess") (less any costs, expenses (including Taxes) or premiums incurred in connection therewith) together with interest: (a) from the date of payment of the Indemnity Payment in respect of which the repayment is being made to but excluding the earlier of the date of repayment of the Excess and the date that is 60 days after the Excess arises, but only to the extent that the Recovery giving rise to the Excess included interest, at the rate applied to the amount of the Recovery; and (b) from and including the date that is 60 days after the Excess arises to but excluding the date of repayment of the Excess, at the Prime Rate. Notwithstanding the foregoing provisions of this Section 6.6, no payment must be made under this Section 6.6 to the extent the Indemnified Person is entitled to an Indemnity Payment hereunder that remains unpaid. Upon making a full Indemnity Payment, the Indemnifying Party will, to the extent of such Indemnity Payment, be subrogated to all rights of the Indemnified Person against any third party in respect of the Loss to which the Indemnity Payment relates. Until the Indemnified Person recovers full payment of its Loss, any and all claims of the Indemnifying Party against such third party on account of such Indemnity Payment will be postponed and subordinated in right of payment to the Indemnified Person's rights against such third party.
6.7 Tax Effect/Tax Benefit.
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(a)
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If any Indemnity Payment received or accrued by an Indemnified Person would constitute income for tax purposes to such Indemnified Person, the Indemnifying Party will pay a Tax Gross-Up to the Indemnified Person at the same time and on the same terms, as to interest and otherwise, as the Indemnity Payment. Notwithstanding the foregoing provisions of this Section 6.7, if an Indemnity Payment would otherwise be included in the Indemnified Person's income, the Indemnified Person covenants and agrees to make all such elections, filings, notifications or designations and take such actions as are available, acting reasonably, to minimize or eliminate Taxes with respect to the Indemnity Payment.
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(b)
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(i) |
The amount of any Loss for which indemnification is provided will be adjusted to take into account any Tax Benefit realized by the Indemnified Person or any of its Affiliates by reason of the Loss for which indemnification is so provided or the circumstances giving rise to such Loss. For the purposes of Section 6.6 and this Section 6.7, "Tax Benefit" means: (A) an amount equal to the value of any current tax benefit (i.e., actual reduction in the Indemnified Person's (or Affiliate's) liability for Taxes or actual increase in the Indemnified Person's (or Affiliate's) Tax refund) recognized by the Indemnified Person (or Affiliate) in the taxation period of the Indemnified Person (or Affiliate) in which the Loss is incurred; plus, without duplication, (B) the discounted present value of any future such tax benefit reasonably anticipated to be actually recognized by the Indemnified Person (or Affiliate) within 10 years after the end of the calendar year in which the Loss is incurred, taking into account, where relevant, the existing and anticipated future tax attributes of the Indemnified Person and its Affiliates, and utilizing a discount rate equal to 10 percent and effective tax rate equal to: (1) where a tax benefit is realized with respect to Canadian federal and/or provincial Taxes, the maximum combined Canadian federal and applicable provincial income tax rate applicable to a Canadian public corporation in effect at the end of the year in which the Loss is incurred; and (2) where a tax benefit is realized with respect to foreign Taxes (including, where applicable, state or local Taxes), the maximum foreign tax rate applicable to corporations in effect at the end of the year in which the Loss is incurred.
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(ii)
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For greater certainty, the provisions of Section 6.6 shall not apply to any adjustment pursuant to the provisions of this Section 6.7.
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(iii)
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Each Party will, when requested in writing by another Party, act commercially reasonably in cooperating with all other applicable Parties to determine the applicability, if any, of this subsection 6.7(b) to any Claim. If such determination is not mutually agreed among the applicable Parties within 60 days of such written request, then the disagreement shall be submitted to an accounting firm of recognized national standing in Canada, which is independent of the Parties (the "Independent Accountant"). If the applicable Parties are unable to agree on the Independent Accountant within 10 days of the end of such 60 day period, any Party may apply under the Arbitration Act (Ontario) to have a court appoint such accounting firm. The Independent Accountant shall, as promptly as reasonable (but in any event within 45 days following its appointment), make a determination of the applicability of this subsection 6.7(b) to such Claim on the basis contemplated herein, based on written submissions submitted by the applicable Parties to the Independent Accountant. The decision of the Independent Accountant as to the applicability of this subsection 6.7(b) to such Claim shall be final and binding upon the Parties and will not be subject to appeal absent manifest error. The fees and expenses of the Independent Accountant with respect to the resolution of the dispute shall be paid by the applicable Parties in such proportions as are determined by the Independent Accountant. The Independent Accountant will be deemed to be acting as an expert and not an arbitrator.
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6.8 Payment and Interest. Except as specified herein, all Losses (other than Taxes) will bear interest at a rate per annum, calculated and payable monthly, equal to the Prime Rate from and including the date the Indemnified Person disbursed funds or suffered or incurred a Loss to, but excluding, the day of payment by the Indemnifying Party to the Indemnified Person, with interest on overdue interest at the same rate. All Losses that are Taxes will bear interest at a rate per annum, calculated and payable monthly, equal to the Prime Rate from and including the date the Indemnified Person paid such Taxes to, but excluding, the day of payment by the Indemnifying Party to the Indemnified Person of the Indemnity Payment in respect of such Taxes, with interest on overdue interest at the same rate.
6.9 Judgment Currency.
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(a)
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If for the purpose of obtaining or enforcing judgment against the Indemnifying Party in any court in any jurisdiction, it becomes necessary to convert into any other currency (the "Judgment Currency") an amount due in Canadian dollars under this Agreement, the conversion will be made at the rate of exchange prevailing on the Business Day immediately preceding:
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(i)
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the date of actual payment of the amount due, in the case of any proceeding in the courts of the Province of Ontario or in the courts of any other jurisdiction that will give effect to such conversion being made on such date; or
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(ii)
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the date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction;
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(the "Judgment Conversion Date").
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(b)
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If, in the case of any proceeding in the court of any jurisdiction referred to in paragraph 6.9(a)(ii), there is a change in the rate of exchange prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the Indemnifying Party must pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of Canadian dollars, which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date.
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6.10 Superseding Indemnity. Notwithstanding anything else herein contained, concurrently with the execution and delivery of the Transitional Services and Separation Agreement, the indemnity provisions contained in the Transitional Services and Separation Agreement shall supersede and replace this Article 6 and this Article 6 shall be of no further force or effect. Any Claim advanced or right to advance a Claim under this Article 6 prior to the Effective Date may be continued or advanced under the Transitional Services and Separation Agreement and the provisions of the Transitional Services and Separation Agreement shall apply mutatis mutandis with respect to any such Claim or right.
ARTICLE 7
AMENDMENT AND TERMINATION
7.1 Amendment. This Agreement may, at any time and from time to time before and after the holding of the Meeting, but not later than the Effective Date, be amended by written agreement of the Parties without, subject to Applicable Law, further notice to or authorization on the part of their respective shareholders. Without limiting the generality of the foregoing, any such amendment may:
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(a)
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change the time for performance of any of the obligations or acts of the Parties;
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(b)
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waive any inaccuracies or modify any representation contained herein or in any document to be delivered pursuant hereto;
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(c)
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except as otherwise provided herein, waive compliance with or modify any of the covenants contained herein or waive or modify performance of any of the obligations of the Parties; or
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(d)
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make such alterations, modifications or amendments to this Agreement as the Parties may consider necessary or desirable in connection with the Tax Ruling and Opinion, the Interim Order or the Final Order.
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Notwithstanding the foregoing, FirstService reserves the right, in its sole discretion, without notice to or the approval of the other Parties or the FirstService Shareholders, to amend: (i) the Plan of Arrangement so long as such amendment(s) is not, in the opinion of FirstService (acting reasonably), materially adverse to the other Parties; and (ii) this Agreement to the extent FirstService may reasonably consider such amendment necessary or desirable due to the Tax Ruling and Opinion, the Interim Order or the Final Order. None of the Parties (or their respective Affiliates or Representatives) shall have any liability to the FirstService Shareholders or the other Parties, as applicable, for any amendment made pursuant to the foregoing sentence of this Section 7.1.
7.2 Termination. This Agreement may, at any time before or after the holding of the Meeting but prior to the issue of the Certificate of Arrangement, be unilaterally terminated by FirstService in its sole discretion at any time without the approval of the FirstService Shareholders, New FSV, FSV Holdco or FCRESI and nothing expressed or implied herein or in the Plan of Arrangement shall be construed as fettering the absolute discretion of FirstService to elect to unilaterally terminate this Agreement and discontinue efforts to effect the Plan of Arrangement for whatever reason it may consider appropriate. This Agreement will terminate without any further action by the Parties if the Effective Date has not occurred on or before March 30, 2016.
7.3 Effect of Termination. Upon the termination of this Agreement pursuant to Section 7.2 hereof, no Party will have any liability or further obligation to the other Parties hereto or any other Person.
7.4 Limitations of Covenants. None of the covenants of FirstService contained herein shall prevent the Board from: (a) acting in accordance with its view of its fiduciary duties; (b) responding as required by Applicable Law to any unsolicited submission or proposal regarding any acquisition or disposition of its assets or assets of any of its Subsidiaries, or any unsolicited proposal to amalgamate, merge or effect an arrangement or any unsolicited acquisition proposal generally involving FirstService or any of its Subsidiaries; or (c) making any disclosure to the FirstService Shareholders, which in the judgment of the Board is required under Applicable Law.
ARTICLE 8
GENERAL CONTRACT PROVISIONS
8.1 Notices. All notices and communications sought or, by the terms hereof, required to be given by one Party to another shall be given in writing by personal delivery, by courier service (courier charges fully prepaid), or by telecopier (with transmission confirmed), delivered, addressed or telecopied to such other Party as follows:
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(a)
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in the case of FirstService, at: 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4 (Attention: Chief Financial Officer) (Telecopier No.: 416-960-5333);
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(b)
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in the case of New FSV, at: 1140 Bay Street, Suite 3000, Toronto, Ontario, Canada M5S 2B4 (Attention: Chief Financial Officer) (Telecopier No.: 416-960-5333);
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(c)
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in the case of FSV Holdco, at: 1140 Bay Street, Suite 3000, Toronto, Ontario, Canada M5S 2B4 (Attention: Chief Financial Officer) (Telecopier No.: 416-960-5333); and
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(d)
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in the case of FCRESI, at: 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4 (Attention: Chief Financial Officer) (Telecopier No.: 416-960-5333);
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or at such other address and/or telecopier number as may be given by a Party to the others by notice in writing from time to time and such notices or other communications shall be deemed to have been received as follows: (i) if sent by personal delivery, upon delivery; (ii) if transmitted by telecopier on or prior to 5:00 p.m. (local time in the place at which the notice is to be received) on a Business Day, upon the completion of its transmission (and if not transmitted on a Business Day or transmitted after 5:00 p.m. (local time in the place at which the notice is to be received) on a Business Day, then on the first Business Day following the completion of the transmission); or (iii) if sent by courier, on the first Business Day after the date of dispatch. Any notice or other communication sought or, by the terms hereof, required to be given to more than one Party shall be effective only if it is given to all of such Parties in accordance with this Section 8.1 and the date on which such notice or other communication shall be deemed to have been given to and received by all of such Parties shall be the date that it is deemed to have been given to and received by the last of such Parties to receive it in accordance with this Section 8.1.
8.2 Time of Essence. Time is of the essence of this Agreement and of every part hereof and no extension or variation of this Agreement shall operate as a waiver of this provision.
8.3 Further Assurances. Each of the Parties will from time to time execute and deliver such further documents and instruments and do all acts and things as any other Party may before the Effective Date reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
8.4 Assignment. No Party may assign its rights or obligations under this Agreement or the Arrangement without the prior written consent of the other Parties (which consent will not be unreasonably withheld, conditioned or delayed), provided that no such consent will be required for any Party to assign its rights and obligations under this Agreement and the Arrangement to a corporate successor to such Party or to a purchaser of all or substantially all of the assets of such Party.
8.5 Binding Effect. This Agreement will be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns, and specific references to "successors" elsewhere in this Agreement will not be construed to be in derogation of the foregoing.
8.6 Waiver. Any waiver or release of any of the provisions of this Agreement, to be effective, must be in writing executed by the Party granting the same.
8.7 Limitation on Liability. No Representative of a Party shall have any personal liability whatsoever on behalf of such Party (or any of its Subsidiaries) to any other Party under this Agreement, the Arrangement or any other transactions entered into, or documents delivered, in connection with any of the foregoing. In no event will one Party be liable to any other Party for any special, consequential, indirect, collateral, incidental or punitive damages or lost profits or failure to realize expected savings or other commercial or economic loss of any kind, however caused and on any theory of liability, arising in any way out of this Agreement, whether or not such Person has been advised of the possibility of such damages.
8.8 Invalidity of Provisions. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
8.9 Entire Agreement. This Agreement, together with the agreements and other documents herein or therein referred to, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between the Parties with respect thereto.
8.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflicts of law principles. Each of the Parties agrees that any action or proceeding arising out of or relating to this Agreement may be instituted in the courts of Ontario, waives any objection which it may have now or later to the venue of that action or proceeding, irrevocably submits to the non-exclusive jurisdiction of those courts in that action or proceeding and agrees to be bound by any judgment of those courts.
8.11 No Third Party Beneficiaries. Except as otherwise provided in Sections 5.1, 6.1, 6.2, 8.4, 8.5 and 8.7, this Agreement is not intended to confer on any Person other than the Parties any rights or remedies.
8.12 Waiver of Conflict. The Parties acknowledge that each of FirstService, New FSV, FSV Holdco and FCRESI, and their respective Subsidiaries, are currently represented by legal counsel retained by FirstService in connection with the preparation and finalization of this Agreement. Each of FirstService, New FSV, FSV Holdco and FCRESI, on behalf of itself and its respective Subsidiaries, waives any conflict with respect to such common representation that may arise before, at or after the date of this Agreement.
8.13 Execution in Counterparts. This Agreement may be executed in several counterparts, by original or facsimile signature or by or through such other electronic form in which a Party may place or evidence its signature hereon (including an electronic scan of same), each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Parties have executed this Agreement.
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FIRSTSERVICE CORPORATION
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Per:
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"John B. Friedrichsen"
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Name:
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John B. Friedrichsen
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Title:
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Senior Vice President and Chief Financial Officer
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NEW FSV CORPORATION
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Per:
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"John B. Friedrichsen"
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Name:
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John B. Friedrichsen
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Title:
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Director
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FSV HOLDCO ULC
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Per:
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"John B. Friedrichsen"
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Name:
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John B. Friedrichsen
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Title:
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President and Treasurer
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FIRSTSERVICE COMMERCIAL REAL ESTATE SERVICES INC.
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Per:
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"John B. Friedrichsen"
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Name:
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John B. Friedrichsen
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Title:
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Chief Financial Officer
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SCHEDULE "A"
Plan of Arrangement
PLAN OF ARRANGEMENT
UNDER SECTION 182 OF THE
BUSINESS CORPORATIONS ACT (ONTARIO)
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Plan of Arrangement, unless the context otherwise requires, capitalized terms used but not defined shall have the meanings ascribed to them below:
"Arrangement" means the arrangement under Section 182 of the OBCA on the terms and subject to the conditions set forth in this Plan of Arrangement, subject to any amendments or variations to this Plan of Arrangement made in accordance with the Arrangement Agreement or this Plan of Arrangement, or made at the direction of the Court;
"Arrangement Agreement" means the arrangement agreement made as of the 11th day of March, 2015 among FirstService, New FSV, FSV Holdco and FCRESI (including the schedules thereto), as it may be amended, modified or supplemented from time to time in accordance with its terms;
"Arrangement Resolution" means the special resolution approving this Plan of Arrangement to be considered at the Meeting, to be substantially in the form and content attached as Appendix "A" to the Circular;
"Articles of Arrangement" means the articles of arrangement of FirstService in respect of the Arrangement, to be filed with the Director after the Final Order is made, which shall include this Plan of Arrangement;
"Business Day" means a day, other than a Saturday, Sunday or statutory or civic holiday in Toronto, Ontario, Canada, when banks are generally open for the transaction of business in Toronto, Ontario, Canada;
"Certificate of Arrangement" means the certificate of arrangement to be issued by the Director, pursuant to subsection 183(2) of the OBCA, in order to give effect to the Articles of Arrangement;
"Circular" means the management information circular of FirstService relating to, among other things, the Arrangement, including all appendices and schedules thereto, and any information incorporated by reference therein, to be sent to the FirstService Shareholders in connection with the Meeting, as amended, supplemented or otherwise modified from time to time;
"Colliers" means the corporation governed by the OBCA continuing following the amalgamation of FirstService and FCRESI pursuant to this Plan of Arrangement;
"Colliers Multiple Voting Shares" means the Multiple Voting Shares in the capital of Colliers (which were previously FirstService New Multiple Voting Shares and which became Multiple Voting Shares in the capital of Colliers pursuant to the amalgamation of FirstService and FCRESI under the Plan of Arrangement);
"Colliers Replacement Stock Options" means the FirstService Replacement Stock Options which become stock options of Colliers pursuant to the amalgamation of FirstService and FCRESI under this Plan of Arrangement;
"Colliers Stock Option Plan" means the FirstService Stock Option Plan which becomes the stock option plan of Colliers pursuant to the amalgamation of FirstService and FCRESI under this Plan of Arrangement;
"Colliers Subordinate Voting Shares" means the Subordinate Voting Shares in the capital of Colliers (which were previously FirstService New Subordinate Voting Shares and which became Subordinate Voting Shares in the capital of Colliers pursuant to the amalgamation of FirstService and FCRESI under the Plan of Arrangement);
"Court" means the Ontario Superior Court of Justice;
"Director" means the Director appointed pursuant to Section 278 of the OBCA;
"Dissent Rights" has the meaning attributed to such term in subsection 4.1(a);
"Dissenting Shareholders" has the meaning attributed to such term in paragraph 4.1(a)(i);
"Distribution Property" means the common shares in the capital of FSV Holdco owned by FirstService immediately before the Distribution Property Exchange;
"Distribution Property Exchange" has the meaning attributed to such term in subsection 3.1(j);
"Distribution Record Date" means the Business Day immediately prior to the Effective Date;
"Effective Date" means the date shown on the Certificate of Arrangement;
"Effective Time" means 12:01 a.m. (Toronto, Ontario local time) on the Effective Date;
"Eligible Dividend" has the meaning attributed to such term in subsection 89(1) of the Tax Act;
"Eligible Holder" means a FirstService Shareholder, other than a Dissenting Shareholder:
|
|
(a)
|
who is resident of Canada for purposes of the Tax Act and not exempt from tax under Part I of the Tax Act;
|
|
|
(b)
|
who is a non-resident of Canada for purposes of the Tax Act and whose FirstService Shares constitute "taxable Canadian property" (as such term is defined in the Tax Act) to the holder, provided that any gain realized by the holder on a disposition at fair market value of such shares would not be exempt from tax under the Tax Act by virtue of an applicable Tax Treaty; or
|
|
|
(c)
|
that is a partnership that owns FirstService Shares if one or more of the partners thereof would be described in either paragraphs (a) or (b) of this definition, above, if such partner held such FirstService Shares directly;
|
"Encumbrance" means any mortgage, charge, pledge, lien, hypothec, security interest, encumbrance, adverse claim or right of any third party to acquire or restrict the use of property;
"Exercise Price Proportion" means the fraction A/B, where:
"A" is the Net Fair Market Value of the Distribution Property immediately before the Distribution Property Exchange; and
"B" is the Net Fair Market Value of all property owned by FirstService immediately before the Distribution Property Exchange;
with the foregoing being subject to adjustment, as determined by the board of directors of FirstService, Colliers and/or New FSV, as applicable, in order to ensure that the exercise price of each FirstService Stock Option immediately prior to the Effective Time is fairly and appropriately apportioned among the associated Colliers Replacement Stock Option and New FSV Replacement Stock Option at the Effective Time;
"fair market value" means the highest price available in an open and unrestricted market between informed prudent parties acting at arm's length and under no compulsion to act and contracting for a taxable purchase and sale, expressed in terms of cash;
"FCRESI" means FirstService Commercial Real Estate Services Inc., a corporation governed by the OBCA;
"FCRESI Arrangements" means the arrangements entered into between FirstService and one or more shareholders and/or optionholders of FCRESI (other than FirstService) and/or under the FCRESI Governance Agreement pursuant to which FirstService will acquire (outside and not as part of this Plan of Arrangement) all of the issued and outstanding shares (and options to acquire shares) of FCRESI it does not own for consideration consisting of FirstService New Subordinate Voting Shares and/or cash and, following the effectiveness of which, FCRESI will be a wholly-owned subsidiary of FirstService;
"FCRESI Governance Agreement" means the amended and restated governance and support agreement made as of the 7th day of August, 2012 between FCRESI and FirstService;
"Final Order" means the final order of the Court approving the Arrangement, as such order may be amended or varied at any time prior to the Effective Time or, if appealed, then, unless such appeal is withdrawn or denied, as affirmed or amended, with or without variation, on appeal;
"FirstService" means FirstService Corporation, a corporation governed by the OBCA;
"FirstService Articles" means the certificate and articles of amalgamation of FirstService effective on April 1, 1999, as amended by the certificate and articles of amendment of FirstService effective on June 27, 2007;
"FirstService Multiple Voting Shares" means the Multiple Voting Shares in the capital of FirstService (that will be re-designated under this Plan of Arrangement as "Class A Multiple Voting Shares");
"FirstService MV Special Shares" means the new series of preference shares in the capital of FirstService created pursuant to this Plan of Arrangement, designated as "Preference Shares, Series MV", and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement;
"FirstService New Multiple Voting Shares" means the new class of shares in the capital of FirstService created pursuant to this Plan of Arrangement, designated as "Multiple Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement;
"FirstService New Subordinate Voting Shares" means the new class of shares in the capital of FirstService created pursuant to this Plan of Arrangement, designated as "Subordinate Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement;
"FirstService Redemption Note" has the meaning attributed to such term in subsection 3.1(l);
"FirstService Replacement Stock Option" means an option to acquire a FirstService New Subordinate Voting Share granted and issued by FirstService to a holder of a FirstService Stock Option in accordance with subsection 3.1(d), with the exercise price of each such FirstService Replacement Stock Option determined in accordance with this Plan of Arrangement and the other terms and conditions of each such FirstService Replacement Stock Option determined in accordance with the FirstService Stock Option Plan and any agreements thereunder including, where necessary, appropriate adjustments to any vesting conditions, as such plan and agreements may be amended by the board of directors of FirstService or a committee thereof;
"FirstService Share Exchange" has the meaning attributed to such term in subsection 3.1(e);
"FirstService Shareholders" means, collectively, the holders of FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares;
"FirstService Shares" means, collectively, the FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares;
"FirstService Stock Option" means an option to acquire a FirstService Subordinate Voting Share granted by FirstService to a director, officer or employee of FirstService or its Subsidiaries pursuant to the FirstService Stock Option Plan, that is outstanding immediately prior to the Effective Time;
"FirstService Stock Option Plan" means the "FirstService Stock Option Plan" of FirstService, as amended and/or restated;
"FirstService Subordinate Voting Shares" means the Subordinate Voting Shares in the capital of FirstService (that will be re-designated under this Plan of Arrangement as "Class A Subordinate Voting Shares");
"FirstService SV Special Shares" means the new series of preference shares in the capital of FirstService created pursuant to this Plan of Arrangement, designated as "Preference Shares, Series SV", and having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement;
"FSV Holdco" means FSV Holdco ULC, an unlimited liability company governed by the Business Corporations Act (British Columbia);
"Interim Order" means the interim order of the Court in respect of the Arrangement as contemplated by Section 2.3 of the Arrangement Agreement, as it may be varied or amended;
"Meeting" means the annual and special meeting of FirstService Shareholders (including any adjournment or postponement thereof) to be called and held in accordance with the Interim Order to consider and, if deemed advisable, to approve the Arrangement Resolution, the Stock Option Plan Resolution and the other matters set out in the notice of meeting accompanying the Circular;
"Nasdaq" means The NASDAQ Stock Market (including any applicable tier thereof);
"Net Fair Market Value" means, in respect of any property, the net fair market value of that property determined on a consolidated basis in accordance with all administrative policies of the Canada Revenue Agency in effect at the time of the FirstService Share Exchange and, in determining Net Fair Market Value, the following principles will apply:
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(a)
|
any tax-related accounts in any corporation (such as deferred income taxes, the balance of non-capital losses and the balance of net capital losses) will not be considered to be property of that corporation;
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|
(b)
|
the amount of any liability will be its principal amount;
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|
(c)
|
no amount will be considered to be a liability unless it represents a true legal liability which is capable of quantification;
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(d)
|
the portion of the long-term debt due within one year will be treated as a current liability; and
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(e)
|
liabilities of a corporation will include its respective partnership share of each liability of any partnership of which such corporation is a partner;
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"New FSV" means New FSV Corporation, a corporation governed by the OBCA;
"New FSV Multiple Voting Shares" means the shares in the capital of New FSV designated as "Multiple Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "II" to this Plan of Arrangement;
"New FSV Redemption Note" has the meaning attributed to such term in subsection 3.1(k);
"New FSV Replacement Stock Option" means an option to acquire a New FSV Subordinate Voting Share granted and issued by New FSV to a holder of a FirstService Stock Option in accordance with subsection 3.1(d), with the exercise price of each such New FSV Replacement Stock Option determined in accordance with this Plan of Arrangement and the other terms and conditions of each such New FSV Replacement Stock Option determined in accordance with the New FSV Stock Option Plan and any agreements thereunder and including, where necessary, appropriate adjustments to any vesting conditions, as such plan or agreements may be amended by the board of directors of New FSV or a committee thereof;
"New FSV Share Exchange" has the meaning attributed to such term in subsection 3.1(h);
"New FSV Special Shares" means the new series of preference shares in the capital of New FSV created pursuant to this Plan of Arrangement, designated as "Preference Shares, Series Special " and having the rights, privileges, restrictions and conditions set out in Exhibit "V" to this Plan of Arrangement;
"New FSV Stock Option Plan" means the "FirstService Stock Option Plan" of New FSV adopted prior to the Effective Date;
"New FSV Subordinate Voting Shares" means the shares in the capital of New FSV designated as "Subordinate Voting Shares" and having the rights, privileges, restrictions and conditions set out in Exhibit "II" to this Plan of Arrangement;
"OBCA" means the Business Corporations Act (Ontario) and the regulations made thereunder, each as amended from time to time;
"Option Exchange" has the meaning attributed to such term in subsection 3.1(d);
"Paid-Up Capital" has the meaning attributed to that term in subsection 89(1) of the Tax Act;
"Person" means and includes an individual, limited or general partnership, limited liability company, limited liability partnership, trust, joint venture, association, body corporate, unlimited liability company, trustee, executor, administrator, legal representative, government (including any governmental authority) or any other entity, whether or not having legal status;
"Plan of Arrangement" means this plan of arrangement, including its exhibits, as it may be amended, modified or supplemented from time to time in accordance with the terms hereof;
"Prime Rate" means the floating rate of interest established from time to time by The Toronto-Dominion Bank (and reported to the Bank of Canada) as the reference rate of interest The Toronto-Dominion Bank will use to determine rates of interest payable by its borrowers on Canadian dollar commercial loans made by The Toronto-Dominion Bank to such borrowers in Canada and designated by The Toronto-Dominion Bank as its "prime rate";
"Registered Shareholder" means a FirstService Shareholder whose name is set out in the registers of FirstService for the FirstService Subordinate Voting Shares or FirstService Multiple Voting Shares, respectively, maintained by the registrars and transfer agents for such shares;
"Stock Option Plan Resolution" means the ordinary resolution of FirstService Shareholders approving the New FSV Stock Option Plan to be considered at the Meeting;
"Tax Act" means the Income Tax Act (Canada) and the regulations made thereunder, each as amended from time to time;
"Tax Proposals" means 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 Effective Time;
"Tax Treaty" means any bilateral tax convention to which Canada is a party that is in force as of the Effective Time; and
"TSX" means the Toronto Stock Exchange.
1.2 Construction. In this Plan of Arrangement, unless otherwise expressly stated or the context otherwise requires:
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(a)
|
the division of this Plan of Arrangement into Articles, Sections and subsections and the use of headings are for convenience of reference only and do not affect the construction or interpretation hereof;
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|
(b)
|
the words "hereunder", "hereof" and similar expressions refer to this Plan of Arrangement and not to any particular Article, Section, subsection, paragraph or subparagraph and references to "Articles", "Sections", "subsections", "paragraphs" and "subparagraphs" are to Articles, Sections, subsections, paragraphs and subparagraphs of this Plan of Arrangement;
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|
(c)
|
words importing the singular include the plural and vice versa, and words importing any gender include all genders and the neuter;
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(d)
|
the word "including", when following any general term or statement, is not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement;
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|
(e)
|
a reference to a statute or code includes every regulation made pursuant thereto, all amendments to the statute or code or to any such regulation in force from time to time, and any statute, code or regulation which supplements or supersedes such statute, code or regulation; and
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(f)
|
if any date on which any action is required to be taken under this Agreement is not a Business Day, such action will be required to be taken on the next succeeding Business Day.
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1.3 Currency. Except where otherwise specified, all references to currency herein are to lawful money of the United States of America and "$" and "US$" refer to United States dollars.
1.4 Time. Time shall be of the essence in every matter or action contemplated hereunder. All times expressed herein are local time in Toronto, Ontario, Canada unless otherwise stipulated herein.
1.5 Exhibits. The following exhibits are attached to this Plan of Arrangement and form a part hereof:
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Exhibit "I"
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–
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Amended and New Share Terms of FirstService
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|
Exhibit "II"
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–
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Share Terms of New FSV
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|
Exhibit "III"
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–
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Directors of New FSV and Colliers
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|
Exhibit "IV"
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–
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By-laws of New FSV
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|
Exhibit "V"
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–
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Terms of New FSV Special Shares
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ARTICLE 2
ARRANGEMENT AGREEMENT
2.1 Arrangement Agreement. This Plan of Arrangement is made pursuant to, and is subject to the provisions of, the Arrangement Agreement, except in respect of the sequence of the steps comprising the Arrangement, which shall occur as set forth herein.
2.2 Binding Effect.
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(a)
|
This Plan of Arrangement, upon the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, will become effective at, and be binding at and after, the Effective Time on: (i) FirstService, New FSV, FSV Holdco, FCRESI and Colliers; (ii) all FirstService Shareholders (including Dissenting Shareholders); (iii) all holders of FirstService Stock Options; and (iv) the registrars and transfer agents of the securities of FirstService, New FSV, FSV Holdco, FCRESI and Colliers, in each case without any further authorization, act or formality on the part of any Person, except as expressly provided herein.
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(b)
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The Certificate of Arrangement shall be conclusive evidence that the Arrangement has become effective and that each of the provisions of Section 3.1 has become effective in the sequence and at the times set out therein.
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ARTICLE 3
ARRANGEMENT
3.1 Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order, without any further act or formality required on the part of any Person:
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(a)
|
no FirstService Stock Options may be exercised or surrendered after the Effective Time;
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(b)
|
the FirstService Shares held by Dissenting Shareholders, who duly exercise their Dissent Rights and who are ultimately entitled to be paid fair value for those FirstService Shares, as described in paragraph 4.1(a)(i), will be deemed to have been transferred to FirstService, with good and marketable title thereto and free and clear of any Encumbrances, and cancelled and will cease to be outstanding at the Effective Time, and such Dissenting Shareholders will cease to have any rights as FirstService Shareholders other than the right to be paid the fair value for their FirstService Shares by FirstService;
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|
(c)
|
the FirstService Articles will be amended as follows:
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| |
(i)
|
to change the designation of the FirstService Multiple Voting Shares from "Multiple Voting Shares" to "Class A Multiple Voting Shares", with such class of shares having the rights, privileges, restrictions and conditions set out in the FirstService Articles, as amended in accordance with Exhibit "I" to this Plan of Arrangement;
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| |
(ii)
|
to change the designation of the FirstService Subordinate Voting Shares from "Subordinate Voting Shares" to "Class A Subordinate Voting Shares", with such class of shares having the rights, privileges, restrictions and conditions set out in the FirstService Articles, as amended in accordance with Exhibit "I" to this Plan of Arrangement; and
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| |
(iii)
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to create and authorize the issuance of (in addition to the shares that FirstService is authorized to issue immediately before such amendment) the following new classes or series of shares:
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| |
(A)
|
an unlimited number of FirstService New Multiple Voting Shares;
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| |
(B)
|
an unlimited number of FirstService New Subordinate Voting Shares;
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| |
(C)
|
an unlimited number of FirstService MV Special Shares; and
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| |
(D)
|
an unlimited number of FirstService SV Special Shares;
|
and the rights, privileges, restrictions and conditions attaching to each such new class or series of shares of FirstService will be as set out in Exhibit "I" to this Plan of Arrangement;
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(d)
|
concurrently with the FirstService Share Exchange, each holder of a FirstService Stock Option will dispose of the Exercise Price Proportion of such holder's FirstService Stock Options to New FSV and the remaining portion to FirstService and, as the sole consideration therefor:
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| |
(i)
|
New FSV will grant and issue New FSV Replacement Stock Options to the holder under the New FSV Stock Option Plan; and
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| |
(ii)
|
FirstService will grant and issue FirstService Replacement Stock Options to the holder under the FirstService Stock Option Plan;
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(the foregoing, collectively, the "Option Exchange") such that, for each FirstService Subordinate Voting Share that the holder would have been entitled to acquire pursuant to a FirstService Stock Option (and the terms of the FirstService Stock Option Plan), the holder will instead be entitled to acquire one FirstService New Subordinate Voting Share pursuant to the corresponding FirstService Replacement Stock Option and one New FSV Subordinate Voting Share pursuant to the corresponding New FSV Replacement Stock Option. A holder of FirstService Stock Options will receive no consideration for the exchange of such FirstService Stock Options pursuant to the Option Exchange other than FirstService Replacement Stock Options and New FSV Replacement Stock Options, and the FirstService Stock Options so exchanged will be cancelled and terminated concurrently with the Option Exchange. The exercise price of a holder's FirstService Stock Options will be allocated to the FirstService Replacement Stock Options and the New FSV Replacement Stock Options acquired by the holder pursuant to the Option Exchange such that an amount equal to the Exercise Price Proportion of such exercise price (rounded up to the nearest whole cent) will be payable by the holder to New FSV under the New FSV Replacement Stock Options and an amount equal to the remainder of such exercise price will be payable by the holder to FirstService under the FirstService Replacement Stock Options. In furtherance of the Option Exchange, the FirstService Stock Option Plan shall be amended and restated to include provisions that provide that each Person that is a director, officer and/or full-time employee of FirstService or any of its subsidiaries who holds a FirstService Stock Option immediately prior to the Effective Time and who will, following the Effective Time, not be a director, officer and/or full-time employee of Colliers or any of its subsidiaries shall, for so long as such Person remains a director, officer and/or full-time employee, as applicable, of New FSV or any of its subsidiaries on or after the Effective Time, be permitted to hold and exercise his or her Colliers Replacement Stock Options in accordance with their terms as though such Person was a director, officer and/or full-time employee, as applicable, of Colliers or any of its subsidiaries;
|
(e)
|
each issued and outstanding FirstService Multiple Voting Share and FirstService Subordinate Voting Share held by a FirstService Shareholder (other than a Dissenting Shareholder) will be exchanged concurrently as follows (the "FirstService Share Exchange"):
|
| |
(i)
|
each FirstService Multiple Voting Share will be exchanged for one FirstService New Multiple Voting Share and one FirstService MV Special Share; and
|
| |
(ii)
|
each FirstService Subordinate Voting Share will be exchanged for one FirstService New Subordinate Voting Share and one FirstService SV Special Share;
|
and the FirstService Multiple Voting Shares and FirstService Subordinate Voting Shares so exchanged will be cancelled. In connection with the FirstService Share Exchange:
| |
(iii)
|
FirstService will not make a joint election under the provisions of subsections 85(1) or 85(2) of the Tax Act or under any other provisions of the Tax Act (or corresponding provisions of any applicable provincial or foreign tax legislation) with a FirstService Shareholder;
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| |
(iv)
|
the aggregate amount to be added by FirstService to the stated capital accounts of the FirstService New Multiple Voting Shares and the FirstService MV Special Shares issued on the FirstService Share Exchange shall be an amount equal to the aggregate Paid-Up Capital of the FirstService Multiple Voting Shares (excluding any FirstService Multiple Voting Shares transferred to FirstService pursuant to subsection 3.1(b)) immediately before such exchange and such Paid-Up Capital shall be allocated between the FirstService New Multiple Voting Shares and the FirstService MV Special Shares based on the proportion that the fair market value of the FirstService New Multiple Voting Shares and the FirstService MV Special Shares, as the case may be, is of the fair market value of all of the FirstService New Multiple Voting Shares and the FirstService MV Special Shares issued on such exchange; and
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| |
(v)
|
the aggregate amount to be added by FirstService to the stated capital accounts of the FirstService New Subordinate Voting Shares and the FirstService SV Special Shares issued on the FirstService Share Exchange shall be an amount equal to the aggregate Paid-Up Capital of the FirstService Subordinate Voting Shares (excluding any FirstService Subordinate Voting Shares transferred to FirstService pursuant to subsection 3.1(b)) immediately before such exchange and such Paid-Up Capital shall be allocated between the FirstService New Subordinate Voting Shares and the FirstService SV Special Shares based on the proportion that the fair market value of the FirstService New Subordinate Voting Shares and the FirstService SV Special Shares, as the case may be, is of the fair market value of all of the FirstService New Subordinate Voting Shares and the FirstService SV Special Shares issued on such exchange;
|
|
(f)
|
concurrently with the issuance of the FirstService New Subordinate Voting Shares and FirstService SV Special Shares pursuant to the FirstService Share Exchange, the FirstService New Subordinate Voting Shares will, outside and not as part of this Plan of Arrangement, continue to be listed and posted for trading on the TSX and Nasdaq (subject to standard listing conditions imposed by the TSX and Nasdaq in similar circumstances) and, for greater certainty, such continued listing will be effective before the Distribution Property Exchange;
|
|
(g)
|
the articles of incorporation of New FSV will be amended to create and authorize the issuance of (in addition to the shares New FSV is authorized to issue immediately before such amendment) an unlimited number of New FSV Special Shares, and the rights, privileges, restrictions and conditions attaching to this new series of shares of New FSV will be as set out in Exhibit "V" to this Plan of Arrangement;
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|
(h)
|
each issued and outstanding FirstService MV Special Share and FirstService SV Special Share will be transferred concurrently to New FSV, with good and marketable title thereto and free and clear of any Encumbrances, in exchange for the issuance of shares of New FSV as follows (as the sole consideration therefor) (the "New FSV Share Exchange"):
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| |
(i)
|
each FirstService MV Special Share will be transferred in exchange for one New FSV Multiple Voting Share; and
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| |
(ii)
|
each FirstService SV Special Share will be transferred in exchange for one New FSV Subordinate Voting Share.
|
In connection with the New FSV Share Exchange:
| |
(iii)
|
if requested by an Eligible Holder within 120 days after the Effective Date, New FSV will jointly elect with such Eligible Holder to have the provisions of subsection 85(1) of the Tax Act (or, in the case of an Eligible Holder that is a partnership, subsection 85(2) of the Tax Act) and the corresponding provisions of any applicable provincial tax legislation apply to such transfer(s) with the agreed amount(s) in such election to be specified by the Eligible Holder (subject to the limitations in the Tax Act and any applicable provincial tax legislation); and
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| |
(iv)
|
New FSV will add the following amounts to the stated capital of its shares:
|
| |
(A)
|
with respect to the New FSV Multiple Voting Shares, an amount equal to the aggregate stated capital of the FirstService MV Special Shares so transferred to New FSV, less the amount, if any, by which the aggregate stated capital of the FirstService MV Special Shares that are subject to the elections under subsections 85(1) or 85(2), as the case may be, of the Tax Act exceeds the aggregate agreed amounts specified in such elections; and
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| |
(B)
|
with respect to the New FSV Subordinate Voting Shares, an amount equal to the aggregate stated capital of the FirstService SV Special Shares so transferred to New FSV, less the amount, if any, by which the aggregate stated capital of the FirstService SV Special Shares that are subject to the elections under subsections 85(1) or 85(2), as the case may be, of the Tax Act exceeds the aggregate agreed amounts specified in such elections;
|
|
(i)
|
concurrently with the issuance of the New FSV Subordinate Voting Shares pursuant to the New FSV Share Exchange, the New FSV Subordinate Voting Shares will, outside and not as part of this Plan of Arrangement, be listed or accepted for trading on the TSX and Nasdaq (subject to standard post-closing listing conditions imposed by the TSX and subject to official notice of issuance by Nasdaq, in each case, in similar circumstances) and, for greater certainty, such listing will be effective before the redemption of the FirstService MV Special Shares and FirstService SV Special Shares pursuant to subsection 3.1(l) and the redemption of the New FSV Special Shares pursuant to subsection 3.1(k);
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|
(j)
|
FirstService will transfer to New FSV all of the Distribution Property (the "Distribution Property Exchange"), with good and marketable title thereto and free from any Encumbrances, at a price equal to the fair market value of the Distribution Property at the time of the transfer. As the consideration for the Distribution Property so transferred by FirstService to New FSV, New FSV will issue to FirstService 1,000,000 New FSV Special Shares having an aggregate redemption amount, as determined pursuant to the articles of incorporation of New FSV, as amended, equal to the fair market value of the Distribution Property at the time of transfer. In connection with the Distribution Property Exchange:
|
| |
(i)
|
New FSV and FirstService will jointly elect to have the provisions of subsection 85(1) of the Tax Act, and the corresponding provisions of any applicable provincial tax legislation, apply to the transfer of the Distribution Property. The agreed amount in respect of such election will be an amount equal to the lesser of: (A) the cost amount (for the purposes of the Tax Act) of the Distribution Property to FirstService immediately before the Distribution Property Exchange; and (B) the fair market value of the Distribution Property at the time of the Distribution Property Exchange;
|
| |
(ii)
|
the amount added to the stated capital of the New FSV Special Shares issued by New FSV to FirstService pursuant to the Distribution Property Exchange will be equal to the agreed amount described in paragraph 3.1(j)(i) for the Distribution Property; and
|
| |
(iii)
|
as a result of the transfer of the Distribution Property to New FSV, the Net Fair Market Value of the property received by New FSV will be equal to or approximate that proportion of the Net Fair Market Value of all property owned by FirstService immediately before the transfer that:
|
| |
(A)
|
the aggregate fair market value of the FirstService MV Special Shares and FirstService SV Special Shares owned by New FSV immediately before the transfer; is of
|
| |
(B)
|
the aggregate fair market value of all the issued and outstanding shares of FirstService immediately before the transfer;
|
|
(k)
|
New FSV will redeem for cancellation all of the outstanding New FSV Special Shares held by FirstService for an amount equal to the aggregate redemption amount (as determined pursuant to the articles of incorporation of New FSV, as amended) for such New FSV Special Shares and will issue to FirstService, as the sole consideration therefor, a demand promissory note (the "New FSV Redemption Note") in a principal amount equal to such aggregate redemption amount, and bearing interest at a rate equal to the Prime Rate from the date of demand for payment to the date of payment, in full and absolute payment, satisfaction and discharge of such aggregate redemption amount, with the risk of the New FSV Redemption Note being dishonoured. The amount of any deemed dividend resulting from the application of subsection 84(3) of the Tax Act to the redemption of all of the outstanding New FSV Special Shares is hereby designated by New FSV, to the extent permitted under the Tax Act, as an Eligible Dividend (which designation shall be deemed to have been made at the time of such deemed dividend);
|
|
(l)
|
FirstService will redeem for cancellation all of the outstanding FirstService MV Special Shares and FirstService SV Special Shares held by New FSV for an amount equal to the aggregate redemption amount (as determined pursuant to the FirstService Articles, as amended) for such FirstService MV Special Shares and FirstService SV Special Shares and will issue to New FSV, as the sole consideration therefor, a demand promissory note (the "FirstService Redemption Note") in a principal amount equal to such aggregate redemption amount, and bearing interest at a rate equal to the Prime Rate from the date of demand for payment to the date of payment, in full and absolute payment, satisfaction and discharge of such aggregate redemption amount, with the risk of the FirstService Redemption Note being dishonoured. The amount of any deemed dividend resulting from the application of subsection 84(3) of the Tax Act to the redemption of all of the outstanding FirstService MV Special Shares and FirstService SV Special Shares is hereby designated by FirstService, to the extent permitted under the Tax Act, as an Eligible Dividend (which designation shall be deemed to have been made at the time of such deemed dividend);
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|
(m)
|
FirstService will pay the principal amount of the FirstService Redemption Note by transferring to New FSV the New FSV Redemption Note, and the New FSV Redemption Note will be accepted by New FSV in full and absolute payment, satisfaction and discharge of FirstService's obligations under the FirstService Redemption Note. Simultaneously, New FSV will pay the principal amount of the New FSV Redemption Note by transferring to FirstService the FirstService Redemption Note, and the FirstService Redemption Note will be accepted by FirstService in full and absolute payment, satisfaction and discharge of New FSV's obligations under the New FSV Redemption Note. Each of the FirstService Redemption Note and the New FSV Redemption Note will thereupon be cancelled;
|
|
(n)
|
the FirstService Articles, as amended, will be amended as follows:
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| |
(i)
|
to change its name from "FirstService Corporation" to "Colliers International Group Inc."; and
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| |
(ii)
|
to remove all of the FirstService MV Special Shares, FirstService SV Special Shares, FirstService Multiple Voting Shares, FirstService Subordinate Voting Shares, Series 1 Preference Shares of FirstService and 7% Cumulative Preference Shares, Series 1 of FirstService from the authorized capital of FirstService (and to remove all references to the FirstService MV Special Shares, FirstService SV Special Shares, FirstService Multiple Voting Shares, FirstService Subordinate Voting Shares, Series 1 Preference Shares of FirstService and 7% Cumulative Preference Shares, Series 1 of FirstService), such that, following such amendment, FirstService will be authorized to issue an unlimited number of FirstService New Subordinate Voting Shares, an unlimited number of FirstService New Multiple Voting Shares and an unlimited number of preference shares, issuable in one or more series;
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(o)
|
the articles of New FSV will be amended as follows:
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| |
(i)
|
to change its name from "New FSV Corporation" to "FirstService Corporation"; and
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| |
(ii)
|
to remove all of the New FSV Special Shares from the authorized capital of New FSV (and to remove all references to the New FSV Special Shares), such that, following such amendment, New FSV will be authorized to issue an unlimited number of New FSV Subordinate Voting Shares, an unlimited number of New FSV Multiple Voting Shares and an unlimited number of preference shares, issuable in one or more series, and the rights, privileges, restrictions and conditions attaching to each class of shares of New FSV will be as set out in Exhibit "II" to this Plan of Arrangement;
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(p)
|
the number of directors of New FSV shall be six (6) and the directors of New FSV will be those Persons listed in Part A of Exhibit "III" to this Plan of Arrangement;
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(q)
|
the directors of New FSV will have the authority to appoint one or more additional directors of New FSV, who will hold office for a term expiring not later than the close of the next annual meeting of shareholders of New FSV, but the total number of directors so appointed may not exceed one third of the number of Persons who become directors of New FSV as contemplated by subsection 3.1(p);
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(r)
|
the by-laws of New FSV will be the by-laws set out in Exhibit "IV" to this Plan of Arrangement, and such by-laws are hereby deemed to have been confirmed by the shareholders of New FSV;
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(s)
|
PricewaterhouseCoopers LLP will be the initial auditors of New FSV, to hold office until the close of the first annual meeting of shareholders of New FSV, or until PricewaterhouseCoopers LLP resigns as contemplated by Section 150 of the OBCA or are removed from office as contemplated by subsection 149(4) of the OBCA, and the directors of New FSV will be authorized to fix their remuneration;
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(t)
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New FSV will resolve to voluntarily dissolve FSV Holdco in accordance with Part 10 of the Business Corporation Act (British Columbia) and subsection 88(1) of the Tax Act, and in connection therewith:
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| |
(i)
|
all of the rights, title and interest of FSV Holdco in and to all of its property, assets and business of every kind and nature, real and personal, both tangible and intangible, and movable and immovable, wherever situate shall be transferred and assigned to New FSV; and
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| |
(ii)
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New FSV shall assume and become liable to pay, satisfy, discharge and observe, perform and fulfill all of the liabilities and obligations of FSV Holdco;
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(u)
|
the FCRESI Arrangements shall, outside and not as part of this Plan of Arrangement, become effective and the FCRESI Governance Agreement shall be terminated and be of no further force and effect;
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(v)
|
the amount standing to the credit of the stated capital account maintained by FCRESI in respect of all of its issued and outstanding shares shall be reduced to the sum of One Dollar ($1.00), in aggregate;
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(w)
|
FirstService and FCRESI shall be amalgamated and continued as one corporation as if, except as otherwise set forth herein, the amalgamation was carried out pursuant to subsection 177(1) of the OBCA to form Colliers in accordance with the following:
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| |
(i)
|
Name: the name of Colliers shall be "Colliers International Group Inc.";
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| |
(ii)
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Registered Office: the registered office of Colliers shall be 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4;
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| |
(iii)
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Number of Directors: the number of directors of Colliers shall consist of a minimum number of three (3) directors and a maximum number of twenty (20) directors. Until changed by the shareholders of Colliers, or by the directors of Colliers if authorized to do so, the number of directors of Colliers shall be six (6);
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| |
(iv)
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Initial Directors: the initial directors of Colliers shall be those Persons listed in Part B of Exhibit "III" to this Plan of Arrangement and such Persons shall hold office until the next annual meeting of the shareholders of Colliers or until their successors are elected or appointed;
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| |
(v)
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Restrictions on Business and Powers: there shall be no restrictions on the business Colliers may carry on or on the powers it may exercise;
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| |
(vi)
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Authorized Capital and Rights, Privileges, Restrictions and Conditions: Colliers shall be authorized to issue:
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| |
(A)
|
an unlimited number of Colliers Subordinate Voting Shares having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement in respect of the FirstService New Subordinate Voting Shares;
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| |
(B)
|
an unlimited number of Colliers Multiple Voting Shares having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement in respect of the FirstService New Multiple Voting Shares; and
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| |
(C)
|
an unlimited number of "Preference Shares", issuable in one or more series, having the rights, privileges, restrictions and conditions set out in Exhibit "I" to this Plan of Arrangement;
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| |
(vii)
|
Restrictions on the Issue, Transfer or Ownership of Shares: there shall be no restrictions on the issue, transfer or ownership of shares of Colliers;
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| |
(viii)
|
By-laws: the by-laws of Colliers shall be the by-laws of FirstService, mutatis mutandis;
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| |
(ix)
|
Effect of Amalgamation: the provisions of section 179 of the OBCA shall apply to the amalgamation with the result that:
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| |
(A)
|
FirstService and FCRESI cease to exist as entities separate from Colliers;
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| |
(B)
|
Colliers possesses all the property, rights, privileges and franchises and is subject to all liabilities, including civil, criminal and quasi-criminal, and all contracts, disabilities and debts of each of FirstService and FCRESI;
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| |
(C)
|
a conviction against, or ruling, order or judgment in favour of or against FirstService or FCRESI may be enforced by or against Colliers; and
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| |
(D)
|
Colliers shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against FirstService or FCRESI before the amalgamation has become effective;
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| |
(x)
|
Articles: the Articles of Arrangement shall be deemed to be the articles of amalgamation and articles of incorporation of Colliers and the Certificate of Arrangement shall be deemed to be the certificate of amalgamation and certificate of incorporation of Colliers;
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| |
(xi)
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Auditors: PricewaterhouseCoopers LLP will be the initial auditors of Colliers, to hold office until the close of the first annual meeting of shareholders of Colliers, or until PricewaterhouseCoopers LLP resigns as contemplated by Section 150 of the OBCA or are removed from office as contemplated by subsection 149(4) of the OBCA, and the directors of Colliers will be authorized to fix their remuneration;
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| |
(xii)
|
Cancellation and Continuation of Shares: on the amalgamation:
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| |
(A)
|
each issued and outstanding Class A Common Share and Class B Common Share in the capital of FCRESI held by FirstService shall be cancelled without any repayment of capital in respect thereof;
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| |
(B)
|
no securities will be issued and no assets will be distributed by Colliers in connection with the amalgamation; and
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| |
(C)
|
the issued and outstanding FirstService New Subordinate Voting Shares and FirstService New Multiple Voting Shares shall survive and become, and continue on as, Colliers Subordinate Voting Shares and Colliers Multiple Voting Shares, respectively, without amendment; and
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| |
(xiii)
|
Stated Capital: the stated capital of:
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| |
(A)
|
the Colliers Subordinate Voting Shares will be an amount equal to the stated capital of the FirstService New Subordinate Voting Shares; and
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| |
(B)
|
the Colliers Multiple Voting Shares will be an amount equal to the stated capital of the FirstService New Multiple Voting Shares; and
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(x)
|
concurrently with the continuation of the Colliers Subordinate Voting Shares pursuant to subparagraph 3.1(w)(xii)(C):
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| |
(i)
|
the Colliers Subordinate Voting Shares will, outside and not as part of this Plan of Arrangement, continue be listed and posted for trading on the TSX and Nasdaq (subject to standard listing conditions imposed by the TSX and Nasdaq in similar circumstances); and
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| |
(ii)
|
each outstanding FirstService Replacement Stock Option will become a Colliers Replacement Stock Option entitling the holder thereof to acquire the same number of Colliers Subordinate Voting Shares, and the FirstService Stock Option Plan will become the Colliers Stock Option Plan, with all of the other terms and conditions of, and restrictions on, the Colliers Replacement Stock Options, including exercise price, vesting conditions and exercise or surrender restrictions, being the same as the FirstService Replacement Stock Options.
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3.2 Determinations of Stated Capital. All amounts of stated capital for purposes of the OBCA to be determined under this Plan of Arrangement will be determined in accordance with the authorization of the board of directors of the applicable corporation, subject to the limitations in this Plan of Arrangement.
ARTICLE 4
DISSENT RIGHTS
4.1 Rights of Dissent.
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(a)
|
Pursuant to the Interim Order, Registered Shareholders may exercise rights of dissent in accordance with Section 185 of the OBCA, as same may be modified by this Article 4, the Interim Order and any other order of the Court ("Dissent Rights"), with respect to FirstService Shares in connection with the Arrangement, provided that, notwithstanding Section 185 of the OBCA, the written notice setting forth the objection of such Registered Shareholder to the Arrangement contemplated by Section 185 of the OBCA and the exercise of Dissent Rights must be received by FirstService not later than 5:00 p.m. (Toronto, Ontario local time) on the second Business Day preceding the date of the Meeting or any date to which the Meeting may be postponed or adjourned and provided further that Registered Shareholders who duly exercise such Dissent Rights and who:
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| |
(i)
|
are ultimately entitled to be paid fair value for their FirstService Shares ("Dissenting Shareholders"), which fair value shall be determined as of the close of business on the Business Day immediately preceding the date on which the Arrangement Resolution is adopted, shall be paid by FirstService the amount therefor determined to be the fair value of such FirstService Shares; and
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| |
(ii)
|
are ultimately not entitled, for any reason, to be paid fair value for their FirstService Shares shall be deemed to have participated in the Arrangement, commencing at the Effective Time, on the same basis as a non-dissenting FirstService Shareholder and shall be entitled to receive only the consideration contemplated in Section 3.1 that such FirstService Shareholder would have received pursuant to the Arrangement if such FirstService Shareholder had not exercised Dissent Rights.
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(b)
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In no circumstances shall FirstService, New FSV, Colliers or any other Person be required to recognize a Person exercising Dissent Rights unless such Person is a Registered Shareholder of the FirstService Shares in respect of which such rights are sought to be exercised.
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|
(c)
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For greater certainty, in no case shall FirstService, New FSV, Colliers or any other Person be required to recognize Dissenting Shareholders as holders of FirstService Shares (or as the holder of any securities of FirstService, New FSV, Colliers or any of their respective subsidiaries) after the time that is immediately prior to the Effective Time, and the names of such Dissenting Shareholders shall be deleted from the registers of FirstService Shareholders as at such time. In addition to any other restrictions under Section 185 of the OBCA and for greater certainty, none of the following shall be entitled to exercise Dissent Rights:
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| |
(i)
|
holders of FirstService Stock Options (in relation to the FirstService Stock Options so held); and
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| |
(ii)
|
FirstService Shareholders who vote, or who have instructed a proxyholder to vote, in favour of the Arrangement Resolution; and
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(d)
|
All payments made to a Dissenting Shareholder in accordance with this Article 4 will be subject to, and paid net of, all applicable withholding taxes.
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ARTICLE 5
SHARES
5.1 Registers of Holders.
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(a)
|
Upon the exchange of the FirstService Multiple Voting Shares pursuant to paragraph 3.1(e)(i), the name of each relevant FirstService Shareholder will be deemed to be removed from the register of holders of FirstService Multiple Voting Shares and will be deemed to be added to the registers of holders of FirstService New Multiple Voting Shares and FirstService MV Special Shares as the holder of the number of FirstService New Multiple Voting Shares and FirstService MV Special Shares, respectively, issued to such FirstService Shareholder. Upon the cancellation of the FirstService Multiple Voting Shares pursuant to paragraph 3.1(e)(i), appropriate entries will be made in the register of holders of FirstService Multiple Voting Shares.
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(b)
|
Upon the exchange of the FirstService Subordinate Voting Shares pursuant to paragraph 3.1(e)(ii), the name of each relevant FirstService Shareholder will be deemed to be removed from the register of holders of FirstService Subordinate Voting Shares and will be deemed to be added to the registers of holders of FirstService New Subordinate Voting Shares and FirstService SV Special Shares as the holder of the number of FirstService New Subordinate Voting Shares and FirstService SV Special Shares, respectively, issued to such FirstService Shareholder. Upon the cancellation of the FirstService Subordinate Voting Shares pursuant to paragraph 3.1(e)(ii), appropriate entries will be made in the register of holders of FirstService Subordinate Voting Shares.
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|
(c)
|
Upon the transfer of the FirstService MV Special Shares pursuant to paragraph 3.1(h)(i):
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| |
(i)
|
the name of each relevant FirstService Shareholder will be deemed to be removed from the register of holders of FirstService MV Special Shares and will be deemed to be added to the register of holders of New FSV Multiple Voting Shares; and
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| |
(ii)
|
New FSV will be deemed to be recorded as the registered holder of the FirstService MV Special Shares on the register of holders of FirstService MV Special Shares and will be deemed to be the legal and beneficial owner thereof.
|
|
(d)
|
Upon the transfer of the FirstService SV Special Shares pursuant to paragraph 3.1(h)(ii):
|
| |
(i)
|
the name of each relevant FirstService Shareholder will be deemed to be removed from the register of holders of FirstService SV Special Shares and will be deemed to be added to the register of holders of New FSV Subordinate Voting Shares; and
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| |
(ii)
|
New FSV will be deemed to be recorded as the registered holder of the FirstService SV Special Shares on the register of holders of FirstService SV Special Shares and will be deemed to be the legal and beneficial owner thereof.
|
|
(e)
|
Upon the transfer of the Distribution Property pursuant to subsection 3.1(j):
|
| |
(i)
|
FirstService will be deemed to be removed from the register of holders of common shares in the capital of FSV Holdco and will be deemed to be added to the register of holders of New FSV Special Shares; and
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| |
(ii)
|
New FSV will be deemed to be recorded as the registered holder of all common shares in the capital of FSV Holdco on the register of holders of common shares in the capital of FSV Holdco and will be deemed to be the legal and beneficial owner thereof.
|
|
(f)
|
Upon the redemption of the New FSV Special Shares pursuant to subsection 3.1(k), FirstService will be deemed to be removed from the register of holders of New FSV Special Shares and appropriate entries will be made in the register of holders of New FSV Special Shares.
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|
(g)
|
Upon the redemption of the FirstService MV Special Shares and FirstService SV Special Shares pursuant to subsection 3.1(l), New FSV will be deemed to be removed from the registers of holders of FirstService MV Special Shares and FirstService SV Special Shares and appropriate entries will be made in the registers of holders of FirstService MV Special Shares and FirstService SV Special Shares.
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(h)
|
Upon the FCRESI Arrangements becoming, outside and not as part of this Plan of Arrangement, effective pursuant to subsection 3.1(u), appropriate entries will be made in the register of holders of FirstService New Subordinate Voting Shares in respect of any FirstService New Subordinate Voting Shares issued in connection therewith.
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|
(i)
|
Upon the amalgamation of FirstService and FCRESI pursuant to subsection 3.1(w):
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| |
(i)
|
the register of holders of FirstService New Multiple Voting Shares will be deemed to be the register of holders of Colliers Multiple Voting Shares; and
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| |
(ii)
|
the register of holders of FirstService New Subordinate Voting Shares will be deemed to be the register of holders of Colliers Subordinate Voting Shares.
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5.2 Deemed Fully Paid and Non-Assessable Shares. All FirstService New Multiple Voting Shares, FirstService New Subordinate Voting Shares, FirstService MV Special Shares, FirstService SV Special Shares, New FSV Multiple Voting Shares, New FSV Subordinate Voting Shares, New FSV Special Shares, Colliers Multiple Voting Shares and Colliers Subordinate Voting Shares issued pursuant hereto will be deemed to be or have been validly issued and outstanding as fully paid and non-assessable shares for all purposes of the OBCA.
ARTICLE 6
DELIVERY OF CONSIDERATION
6.1 Entitlement to Share Certificates and Payments.
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(a)
|
Upon the Arrangement becoming effective, from and including the Effective Date to and including the Distribution Record Date, share certificates previously representing FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares that were exchanged in accordance with the provisions of this Plan of Arrangement will represent the Colliers Subordinate Voting Shares, Colliers Multiple Voting Shares, New FSV Subordinate Voting Shares and New FSV Multiple Voting Shares to be issued to FirstService Shareholders under this Plan of Arrangement.
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|
(b)
|
As soon as practicable after the Distribution Record Date, there will be delivered to each FirstService Shareholder of record at the close of business on the Distribution Record Date certificates representing New FSV Subordinate Voting Shares and New FSV Multiple Voting Shares to which such holder is entitled pursuant to the provisions of this Plan of Arrangement.
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|
(c)
|
The certificates representing the FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares will be deemed, for all purposes from and after the Effective Time, to be certificates representing the Colliers Subordinate Voting Shares and Colliers Multiple Voting Shares, and accordingly, no new certificates will be issued representing such Colliers Subordinate Voting Shares and Colliers Multiple Voting Shares.
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|
(d)
|
Share certificates representing New FSV Subordinate Voting Shares and New FSV Multiple Voting Shares will be sent to FirstService Shareholders by first class mail at the most recent address for each FirstService Shareholder on the lists of registered FirstService Shareholders maintained by the registrars and transfer agents for the FirstService Subordinate Voting Shares and FirstService Multiple Voting Shares, respectively.
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|
(e)
|
No certificates will be issued for shares that are issued and subsequently cancelled in accordance with the provisions of this Plan of Arrangement.
|
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(f)
|
If any certificate which immediately prior to the Effective Time represented an interest in outstanding FirstService Subordinate Voting Shares and/or FirstService Multiple Voting Shares that were exchanged for Colliers Subordinate Voting Shares, Colliers Multiple Voting Shares, New FSV Subordinate Voting Shares and New FSV Multiple Voting Shares, as applicable, pursuant to the provisions of this Plan of Arrangement has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to have been lost, stolen or destroyed, the registrars and transfer agents for the FirstService Subordinate Voting Shares and/or FirstService Multiple Voting Shares, as applicable, will issue and deliver in exchange for such lost, stolen or destroyed certificate the consideration to which the holder is entitled pursuant to the Arrangement (and any dividends or distributions with respect thereto) as determined in accordance with the Arrangement. The Person who is entitled to receive such consideration shall, as a condition precedent to the receipt thereof, give a bond to each of FirstService/Colliers and New FSV and their respective transfer agents, which bond is in form and substance satisfactory to each of FirstService/Colliers and New FSV and their respective transfer agents, or shall otherwise indemnify FirstService/Colliers and New FSV and their respective transfer agents against any claim that may be made against any of them with respect to the certificate alleged to have been lost, stolen or destroyed.
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|
(g)
|
All dividends or other distributions, if any, made with respect to any New FSV Subordinate Voting Shares and New FSV Multiple Voting Shares allotted and issued pursuant to this Arrangement but for which a certificate has not been issued shall be paid or delivered to the applicable transfer agent thereof to be held by the applicable transfer agent thereof in trust for the registered holder thereof. The applicable transfer agent shall pay and deliver to any such registered holder, as soon as reasonably practicable after application therefor is made by the registered holder to the applicable transfer agent in such form as the applicable transfer agent may reasonably require, such dividends and distributions to which such holder is entitled, net of applicable withholding and other taxes.
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6.2 Withholding Rights. Each of FirstService, New FSV and Colliers (and their transfer agents on their behalf) shall be entitled to deduct and withhold from amounts payable under this Plan of Arrangement such amounts as each of FirstService, New FSV and Colliers (and their transfer agents on their behalf) is required to deduct and withhold with respect to such payment under the Tax Act or any provision of any applicable federal, provincial, territorial, state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes as having been paid to the recipient of the payment in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted in accordance with applicable law to the appropriate taxing authority.
6.3 Restatement of Articles. Outside and not as part of this Plan of Arrangement, the articles of: (a) Colliers may be restated to reflect the amendments made thereto pursuant to this Plan of Arrangement and such amended and restated articles may be filed by Colliers with the Director pursuant to the OBCA; and (b) New FSV may be restated to reflect the amendments made thereto pursuant to this Plan of Arrangement and such amended and restated articles may be filed by New FSV with the Director pursuant to the OBCA.
6.4 No Encumbrances. Any exchange or transfer of securities pursuant to this Plan of Arrangement shall be free and clear of any Encumbrances, except for claims of the transferring or exchanging securityholder to be paid the consideration payable to such securityholder pursuant to the terms of this Plan of Arrangement.
6.5 Paramountcy. From and after the Effective Time: (a) this Plan of Arrangement shall apply to any and all FirstService Shares and FirstService Stock Options issued prior to the Effective Time; (b) the rights and obligations of the Registered Shareholders and holders of FirstService Stock Options and FirstService, New FSV, Colliers and any transfer agent or other depositary therefor in relation thereto, shall be solely as provided for in this Plan of Arrangement; and (c) all actions, causes of action, claims or proceedings (actual or contingent and whether or not previously asserted) based on or in any way relating to any FirstService Shares or FirstService Stock Options shall be deemed to have been settled, compromised, released and determined without liability except as set forth herein.
ARTICLE 7
AMENDMENTS
7.1 Amendments to Plan of Arrangement.
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(a)
|
This Plan of Arrangement may at any time and from time to time whether before or after the Interim Order or the Final Order, but not later than the Effective Date, be amended, modified or supplemented unilaterally by FirstService, provided that each such amendment, modification or supplement is contained in a written document which is filed with the Court and, if made following the Meeting, is approved by the Court and communicated to any Persons in the manner required by the Court.
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|
(b)
|
Any amendment, modification or supplement to this Plan of Arrangement may be proposed by FirstService at any time prior to or at the Meeting with or without any other prior notice or communication to any other Persons (other than as may be required under the Interim Order) and, if so proposed and accepted by the FirstService Shareholders voting at the Meeting, will become part of this Plan of Arrangement for all purposes.
|
|
(c)
|
Any amendment, modification or supplement to this Plan of Arrangement which is approved or directed by the Court following the Meeting will be effective only if it is consented to by FirstService and, if required by the Court, is communicated and/or consented to by the FirstService Shareholders in the manner directed by the Court.
|
|
(d)
|
This Plan of Arrangement may be withdrawn prior to the Effective Time in accordance with the terms of the Arrangement Agreement.
|
|
(e)
|
Any amendment, modification or supplement to this Plan of Arrangement may be made following the Effective Date by Colliers and New FSV without the approval of the Court, the shareholders of Colliers or the shareholders of New FSV, provided that it concerns a matter which, in the reasonable opinion of Colliers and New FSV, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the financial or economic interests of any holder or former holder of FirstService Shares, Colliers Subordinate Voting Shares, Colliers Multiple Voting Shares, New FSV Subordinate Voting Shares or New FSV Multiple Voting Shares.
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ARTICLE 8
FURTHER ASSURANCES
8.1 Further Assurances. Notwithstanding that the transactions and events set out herein shall occur and be deemed to occur in the order set out in this Plan of Arrangement without any further act or formality, each of the parties to the Arrangement Agreement shall 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 further document or evidence any of the transactions or events set out herein.
EXHIBIT "I"
TO PLAN OF ARRANGEMENT
AMENDED AND NEW SHARE TERMS OF FIRSTSERVICE
Share terms attaching to the FirstService Subordinate Voting Shares (as amended), FirstService New Subordinate Voting Shares, FirstService Multiple Voting Shares (as amended), Preference Shares (existing), FirstService New Multiple Voting Shares, FirstService SV Special Shares and FirstService MV Special Shares at the time of the Amendments Contemplated in Subsection 3.1(c) of the Plan of Arrangement
Capitalized terms used herein without definition have the meanings given to them in the Plan of Arrangement or the applicable articles of the entity being referred to.
FirstService Subordinate Voting Shares,
FirstService Multiple Voting Shares and Preference Shares
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A.
|
The FirstService Articles are hereby amended by replacing Section 2.01 thereof in its entirety with the following:
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2.01 The holders of the Class A Subordinate Voting Shares shall be entitled to receive notice of, to attend and speak at and to vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of another class as such or the holders of a series of shares of another class as such, and at such meeting shall have two (2) votes for each Class A Subordinate Voting Share held.
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B.
|
The FirstService Articles are hereby amended by replacing Section 3.01 thereof in its entirety with the following:
|
3.01 The holders of the Class A Multiple Voting Shares shall be entitled to receive notice of, and to attend and speak at and vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of shares of another class as such or of the holders of a series of shares of another class as such, and at such meeting shall have forty (40) votes for each Class A Multiple Voting Share held.
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C.
|
Section 1.00 of the FirstService Articles, and the terms of the Preference Shares, are hereby confirmed as follows:
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1.00 THE PREFERENCE SHARES
1.01 The Preference Shares may at any time or from time to time be issued in one or more series, each series to consist of such number of shares as may, before the issue thereof, be determined by the board of directors of the Corporation. The directors shall by resolution fix, from time to time, before the issue of any series of Preference Shares, the designation, preferences, rights, restrictions, conditions, limitations, priorities as to payment of dividends and/or distribution on liquidation, dissolution or winding-up, or prohibitions attaching thereto including, without limiting the generality of the foregoing, the provision of a purchase fund, the right of the Corporation to purchase such shares for cancellation, the rate of preferential dividends, the dates of payment thereof, the date or dates from which any such preferential dividends shall accrue, redemption rights including purchase or redemption price, terms and conditions of redemption, conversion rights and any sinking fund or other provisions, and authorize the issuance thereof.
1.02 The directors before the issue of any Preference Shares of a series shall file with the Director appointed under the Business Corporations Act (Ontario) or any successor statute of the Province of Ontario which is from time to time in force (the "Act"), Articles of Amendment designating such series and specifying the number, designation, preferences, rights, restrictions, conditions, limitations, priorities as to payment of dividends and/or distribution on liquidation, dissolution or winding-up, and prohibitions attached thereto, and shall obtain a certificate from the Director with respect thereto.
1.03 The Preference Shares of each series shall be entitled to preference over the Subordinate Voting Shares, the Multiple Voting Shares and any other shares ranking junior to the Preference Shares with respect to priority in payment of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding-up its affairs, and may also be given such other preferences over the Subordinate Voting Shares, the Multiple Voting Shares and any other shares ranking junior to the Preference Shares as may be determined with respect to the respective series authorized to be issued.
1.04 The holders of the Preference Shares shall not be entitled as such, except as required by law, to receive notice of or to attend any meeting of the shareholders of the Corporation or to vote at any such meeting, but shall be entitled to receive notice of meetings of shareholders of the Corporation called for the purpose of authorizing the dissolution of the Corporation or the sale of its undertaking or a substantial part thereof.
FirstService New Subordinate Voting Shares
and FirstService New Multiple Voting Shares
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D.
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The FirstService Articles are hereby amended by inserting the following as new Sections 9.00, 10.00, 11.00, 12.00 and 13.00:
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9.00 SUBORDINATE VOTING SHARES
9.01 The holders of the Subordinate Voting Shares shall be entitled to receive notice of, to attend and speak at and to vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of another class as such or the holders of a series of shares of another class as such, and at such meeting shall have one (1) vote for each Subordinate Voting Share held.
9.02 Subject to any provisions of the Business Corporations Act (Ontario) or any successor statute of the Province of Ontario which is from time to time in force (the "Act") and to applicable securities laws and the by-laws, regulations or policies of any stock exchange upon which the Subordinate Voting Shares may then be listed, all or any part of the Subordinate Voting Shares which are then outstanding shall be purchasable for cancellation by the Corporation at any time, in the open market, by private contract or otherwise, at the lowest price at which, in the opinion of the directors, such shares are obtainable.
9.03 The Subordinate Voting Shares shall not be redeemable by the Corporation.
9.04 If the Act would in effect require in the absence of this Section 9.04 that an amendment to the Articles of the Corporation to delete or vary any preference, right, condition, restriction, limitation or prohibition attaching to any of the Subordinate Voting Shares, or to create special shares ranking in priority to or on a parity with the Subordinate Voting Shares, be confirmed in writing by the holders of 100% or any lesser percentage of the then outstanding Subordinate Voting Shares, then in lieu of such confirmation in writing, such confirmation may be given by at least two-thirds of the votes cast at a meeting of the holders of the Subordinate Voting Shares duly called for that purpose and, at such meeting, each holder of Subordinate Voting Shares shall be entitled to one vote for each Subordinate Voting Share held.
9.05 The holders of the Subordinate Voting Shares shall not have any right to vote separately upon any proposal to amend the Articles of the Corporation to:
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(1)
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increase any maximum number of authorized shares of any class or series having rights or privileges equal or superior to the Subordinate Voting Shares; or
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(2)
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create a new class of shares equal or superior to the Subordinate Voting Shares.
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9.06
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(1)
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For the purposes of this Section 9.06:
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(a)
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"affiliate" has the meaning assigned by the Securities Act (Ontario) as amended from time to time;
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(b)
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"associate" has the meaning assigned by the Securities Act (Ontario) as amended from time to time;
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(c)
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"Conversion Period" means the period of time commencing on the eighth day after the Offer Date and terminating on the Expiry Date;
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(d)
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"Converted Shares" means Multiple Voting Shares resulting from the conversion of Subordinate Voting Shares into Multiple Voting Shares pursuant to subsection 9.06(2);
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(e)
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"Exclusionary Offer" means an offer to purchase Multiple Voting Shares that:
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(i)
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must, by reason of applicable securities legislation or the requirements of a stock exchange on which the Multiple Voting Shares are listed, be made to all or substantially all holders of Multiple Voting Shares who are in a province of Canada to which the requirement applies;
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(ii)
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is not made concurrently with an offer to purchase Subordinate Voting Shares that is identical to the offer to purchase Multiple Voting Shares in terms of price per share and percentage of outstanding shares to be taken up exclusive of shares owned immediately prior to the offer by the Offeror and, in all other material respects, that has no condition attached other than the right not to take up and pay for shares tendered if no shares are tendered pursuant to the offer for Multiple Voting Shares,
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and, for the purposes of this definition, if an offer to purchase Multiple Voting Shares is not an Exclusionary Offer as defined above but would be an Exclusionary Offer if it were not for clause 9.06(1)(e)(ii), the varying of any term of such offer shall be deemed to constitute the making of a new offer unless an identical variation concurrently is made to the corresponding offer to purchase Subordinate Voting Shares;
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(f)
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"Expiry Date" means the last date upon which holders of Multiple Voting Shares may accept an Exclusionary Offer;
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(g)
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"Offer Date" means the date on which an Exclusionary Offer is made;
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(h)
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"Offeror" means a person or company that makes an offer to purchase Multiple Voting Shares (the "bidder"), and includes any associate or affiliate of the bidder or any person or company that is disclosed in the offering document to be acting jointly or in concert with the bidder; and
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(i)
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"transfer agent" means the transfer agent for the time being of the Multiple Voting Shares.
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(2)
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Subject to subsection 9.06(5), if an Exclusionary Offer is made, each outstanding Subordinate Voting Share shall be convertible into one Multiple Voting Share at the option of the holder during the Conversion Period. The conversion right may be exercised by notice in writing given to the transfer agent accompanied by the share certificate or certificates representing the Subordinate Voting Shares which the holder desires to convert, and such notice shall be executed by such holder, or by his attorney duly authorized in writing, and shall specify the number of Subordinate Voting Shares which the holder desires to have converted. The holder shall pay any governmental or other tax imposed on or in respect of such conversion. Upon receipt by the transfer agent of such notice and share certificate or certificates, the Corporation shall issue a share certificate representing fully-paid Multiple Voting Shares as above prescribed and in accordance with subsection 9.06(4). If less than all of the Subordinate Voting Shares represented by any share certificate are to be converted, the holder shall be entitled to receive a new share certificate representing in the aggregate the number of Subordinate Voting Shares represented by the original share certificate which are not to be converted.
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(3)
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An election by a holder of Subordinate Voting Shares to exercise the conversion right provided for in subsection 9.06(2) shall be deemed to also constitute an irrevocable election by such holder to deposit the Converted Shares pursuant to the Exclusionary Offer (subject to such holder's right to subsequently withdraw the shares from the offer) and to exercise the right to convert into Subordinate Voting Shares all Converted Shares in respect of which such holder exercises his right of withdrawal from the Exclusionary Offer or which are not otherwise ultimately taken up under the Exclusionary Offer. Any conversion into Subordinate Voting Shares, pursuant to such deemed election, of Converted Shares in respect of which the holder exercises his right of withdrawal from the Exclusionary Offer shall become effective at the time such right of withdrawal is exercised. If the right of withdrawal is not exercised, any conversion into Subordinate Voting Shares pursuant to such deemed election shall become effective:
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(a)
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in respect of an Exclusionary Offer which is completed, immediately following the time by which the Offeror is required by applicable securities legislation to take up and pay for all shares to be acquired by the Offeror under the Exclusionary Offer; and
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(b)
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in respect of an Exclusionary Offer which is abandoned or withdrawn, at the time at which the Exclusionary Offer is abandoned or withdrawn.
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(4)
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No share certificates representing Converted Shares shall be delivered to the holders of the shares before such shares are deposited pursuant to the Exclusionary Offer; the transfer agent, on behalf of the holders of the Converted Shares, shall deposit pursuant to the Exclusionary Offer a certificate or certificates representing the Converted Shares. Upon completion of the Offer, the transfer agent shall deliver to the holders entitled thereto all consideration paid by the Offeror pursuant to the offer. If Converted Shares are converted into Subordinate Voting Shares pursuant to subsection 9.06(3), the transfer agent shall deliver to the holders entitled thereto share certificates representing the Subordinate Voting Shares representing the Subordinate Voting Shares resulting from the conversion. The Corporation shall make all arrangements with the transfer agent necessary or desirable to give effect to this sub-paragraph.
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(5)
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Subject to subsection 9.06(6), the conversion right provided for in subsection 9.06(2) shall not come into effect if:
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(a)
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prior to the time at which the Exclusionary Offer is made there is delivered to the transfer agent and to the Secretary of the Corporation a certificate or certificates signed by or on behalf of one or more shareholders of the Corporation owning in the aggregate, as at the time the Exclusionary Offer is made, more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the Exclusionary Offer by the Offeror, which certificate or certificates shall confirm, in the case of each such shareholder, that such shareholder shall not:
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| |
(i)
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accept any Exclusionary Offer without giving the transfer agent and the Secretary of the Corporation written notice of such acceptance or intended acceptance at least seven days prior to the Expiry Date;
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(ii)
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make any Exclusionary Offer;
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(iii)
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act jointly or in concert with any person or company that makes any Exclusionary Offer; or
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(iv)
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transfer any Multiple Voting Shares, directly or indirectly, during the time at which any Exclusionary. Offer is outstanding without giving the transfer agent and the Secretary of the Corporation written notice of such transfer or intended transfer at least seven days prior to the Expiry Date, which notice shall state, if known to the transferor, the names of the transferees and the number of Multiple Voting Shares transferred or to be transferred to each transferee; or
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(b)
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within seven days after the Offer Date there is delivered to the transfer agent and to the Secretary of the Corporation a certificate or certificates signed by or on behalf of one or more shareholders of the Corporation owning in the aggregate more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the Exclusionary Offer by the Offeror, which certificate or certificates shall confirm, in the case of each such shareholder:
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(i)
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the number of Multiple Voting Shares owned by the shareholder;
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(ii)
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that such shareholder is not making the offer and is not an associate or affiliate of, or acting jointly or in concert with, the person or company making the offer;
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(iii)
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that such shareholder shall not accept the offer, including any varied form of the offer, without giving the transfer agent and the Secretary of the Corporation written notice of such acceptance or intended acceptance at least seven days prior to the Expiry Date; and
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(iv)
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that such shareholder shall not transfer any Multiple Voting Shares, directly or indirectly, prior to the Expiry Date without giving the transfer agent and the Secretary of the Corporation written notice of such transfer or intended transfer at least seven days prior to the Expiry Date, which notice shall state, if known to the transferor, the names of the transferees and the number of. Multiple Voting Shares transferred or to be transferred to each transferee if this information is known to the transferor.
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(6)
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If notice referred to in clause 9.06(5)(a)(i), 9.06(5)(a)(iv), 9.06(5)(b)(iii) or 9.06(5)(b)(iv) is given and the conversion right provided for in subsection 9.06(2) has not come into effect, the transfer agent shall either forthwith upon receipt of the notice or forthwith after the seventh day following the Offer Date, whichever is later, make a determination as to whether there are subsisting certifications that comply with either paragraph 9.06(5)(a) or 9.06(5)(b) from shareholders of the Corporation who own in the aggregate more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the offer by the Offeror. For the subject of such notice shall be deemed to have taken place at the time of the determination, and the shares that are the subject of such notice shall be deemed to have been transferred to a person or company from whom the transfer agent has not received such a certification unless the transfer agent is otherwise advised either by such notice or by the transferee in writing. If the transfer agent determines that there are not such subsisting certifications, subsection 9.06(5) shall cease to apply and the conversion right provided for in subsection 9.06(2) shall be in effect for the remainder of the Conversion Period.
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(7)
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As soon as reasonably possible after the seventh day after the Offer Date, the Corporation shall send to each holder of Subordinate Voting Shares a notice advising the holders as to whether they are entitled to convert their Subordinate Voting Shares into Multiple Voting Shares and the reasons therefor. If such notice discloses that they are not so entitled but is subsequently determined that they are so entitled by virtue of subsection 9.06(6) or otherwise, the Corporation shall forthwith send another notice to them advising them of that fact and the reasons therefor.
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(8)
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If a notice referred to in subsection 9.06(7) discloses that the conversion right has come into effect, the notice shall:
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| |
(a)
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include a description of the procedure to be followed to effect the conversion and to have the Converted Shares tendered under the offer;
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| |
(b)
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include the information set out in subsection 9.06(3); and
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| |
(c)
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be accompanied by a copy of the offer and all other material sent to holders of Multiple Voting Shares in respect of the offer, and as soon as reasonably possible after any additional material, including a notice of variation, is sent to the holders of Multiple Voting Shares in respect of the offer, the Corporation shall send a copy of such additional material to each holder of Subordinate Voting Shares.
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(9)
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Prior to or forthwith after sending any notice referred to in subsection 9.06(7), the Corporation shall cause a press release to be issued to a Canadian national news ticker service, describing the contents of the notice.
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10.00 MULTIPLE VOTING SHARES
10.01 The holders of the Multiple Voting Shares shall be entitled to receive notice of, and to attend and speak at and vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of shares of another class as such or of the holders of a series of shares of another class as such, and at such meeting shall have twenty (20) votes for each Multiple Voting Share held.
10.02 Subject to any provisions of the Act and to applicable securities laws and the by-laws, regulations or policies of any stock exchange upon which the Multiple Voting Shares may then be listed, all or any part of the Multiple Voting Shares which are then outstanding shall be purchasable for cancellation by the Corporation at any time, in the open market, by private contract or otherwise, at the lowest price at which, in the opinion of the directors, such shares are obtainable.
10.03 The Multiple Voting Shares shall not be redeemable by the Corporation.
10.04 If the Act would in effect require in the absence of this Section 10.04 that an amendment to the Articles of the Corporation to delete or vary any preference, right, condition, restriction, limitation or prohibition attaching to any of the Multiple Voting Shares, or to create special shares ranking in priority to or on a parity with the Multiple Voting Shares, be confirmed in writing by the holders of 100% or any lesser percentage of the then outstanding Multiple Voting Shares, then in lieu of such confirmation in writing, such confirmation may be given by at least two-thirds of the votes cast at a meeting of the holders of the Multiple Voting Shares duly called for that purpose and, at such meeting, each holder of Multiple Voting Shares shall be entitled to one vote for each Multiple Voting Shares held.
10.05 The holders of the Multiple Voting Shares shall not have any right to vote separately upon any proposal to amend the Articles of the Corporation to:
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(1)
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increase any maximum number of authorized shares of a class or series having rights or privileges equal or superior to the Multiple Voting Shares; or
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(2)
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create a new class of shares equal or superior to the Multiple Voting Shares.
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10.06 Each Multiple Voting Share shall be convertible at any time, at the option of the holder thereof, into a Subordinate Voting Share, on the basis of one Subordinate Voting Share for each Multiple Voting Share so converted. The holder of Multiple Voting Shares desiring to convert such Multiple Voting Shares into Subordinate Voting Shares on the basis aforesaid shall deliver to the transfer agent for the time being of the Subordinate Voting Shares the share certificate or share certificates representing the Multiple Voting Shares which the holder desires to so convert accompanied by a written notice duly executed by such holder or his attorney duly authorized in writing, which notice shall state that such holder elects to convert the Multiple Voting Shares represented by such share certificate or share certificates into Subordinate Voting Shares in accordance with the provisions hereof and which notice shall further state the name or names (with addresses) in which the share certificate or certificates for Subordinate Voting Shares issuable on such conversion shall be issued and, if any of the Subordinate Voting Shares into which such Multiple Voting Shares are to be converted are to be issued to a person or persons other than the holder of such Multiple Voting Shares, there shall be paid to such transfer agent, for the account of the Corporation, any transfer taxes which may properly be payable. If any such share certificate or share certificates representing any of the Subordinate Voting Shares issuable on conversion are directed to be issued to any person other than the holder of such Multiple Voting Shares, the signature of such holder shall be guaranteed by a Canadian chartered bank or such other financial institution as such transfer agent may require. Such holder shall, in addition, comply with such other reasonable requirements as such transfer agent may prescribe. As promptly as practicable after the receipt of such notice of election to convert, the payment of such transfer tax (if any), the delivery of such share certificate or share certificates and compliance with all reasonable requirements of the transfer agent as aforesaid, the Corporation shall cause the transfer agent for the Subordinate Voting Shares to issue and deliver in accordance with such notice of election to convert a share certificate or share certificates representing the number of Subordinate Voting Shares into which such Multiple Voting Shares have been converted in accordance with the provisions of this Section 10.06. Such conversion shall be deemed to have been made immediately prior to the close of business on the date on which all conditions precedent to the conversion of such Multiple Voting Shares have been fulfilled and the person or persons in whose name or names any share certificate or share certificates for Subordinate Voting Shares shall be issuable shall be deemed to have become on the said date the holder or holders of record of the Subordinate Voting Shares represented thereby; provided, however, that if the transfer books of the Corporation for Subordinate Voting Shares shall be closed on the said date, the Corporation shall not be required to issue Subordinate Voting Shares upon such conversion until the date on which such transfer books shall be re-opened and such person or persons shall not be deemed to have become the holder or holders of record of such Subordinate Voting Shares until the said date on which such transfer books shall be reopened. There shall be no payment or adjustment on account of any unpaid dividends on the Multiple Voting Shares converted or on account of any dividends on the Subordinate Voting Shares resulting from such conversion. In the event that part only of the Multiple Voting Shares represented by any share certificate shall be converted, a share certificate for the remainder of the Multiple Voting Shares represented by the said share certificate shall be delivered to the holder converting without charge.
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11.00
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DIVIDENDS AND DISTRIBUTION RIGHTS OF THE SUBORDINATE AND MULTIPLE VOTING SHARES
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11.01 All dividends which are declared in any year in the discretion of the directors on all of the Subordinate Voting Shares shall be declared and paid in an equal or, in the discretion of the directors, a greater amount per share than on all of the Multiple Voting Shares at the time outstanding. All dividends which are declared in any year, in the discretion of the directors, on all of the Multiple Voting Shares shall be declared and paid in an equal or, in the discretion of the directors, a lesser amount per share than on all of the Subordinate Voting Shares outstanding. If any stock dividend is declared on Subordinate Voting Shares, such dividend may be paid in Subordinate Voting Shares, such dividend may be paid in Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, if stock dividends in equal or, in the discretion of the directors, lesser amounts per share are declared at the same time on the Multiple Voting Shares and are payable in either Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, regardless of which class the stock dividend was paid on Subordinate Voting Shares. If any stock dividend is declared on Multiple Voting Shares, such dividend may be paid in Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, if stock dividends in equal or, in the discretion of the directors, greater amounts per share are paid at the same time on the Subordinate Voting. Shares and are payable in either Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, regardless of which class the stock dividend was paid on Multiple Voting Shares.
11.02 All distributions other than dividends (including, but without limiting the generality of the foregoing, any distribution of rights, warrants or options to purchase securities of the Corporation), and all such distributions which may at any time or from time to time be authorized or made:
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(1)
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in respect of the Subordinate Voting Shares, shall be authorized and made in equal or, in the discretion of the directors, greater quantities or amounts per share than on all Multiple Voting Shares then outstanding without preference or distinction; and
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(2)
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in respect of the Multiple Voting Shares, shall be authorized and made in equal or, in the discretion of the directors, lesser quantities or amounts per share than on all Subordinate Voting Shares then outstanding without preference or distinction.
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12.00
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SUBDIVISIONS, CONSOLIDATIONS, RECLASSIFICATIONS, WINDING-UP AND LIQUIDATION, ETC.
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12.01 No subdivision, consolidation, reclassification or other change of the Subordinate Voting Shares or the Multiple Voting Shares shall be made unless at the time an equivalent or comparable subdivision, consolidation, reclassification or change is made with respect to all of the Multiple Voting Shares and Subordinate Voting Shares, respectively, which are then outstanding.
12.02 In any case where a fraction of a Subordinate Voting Shares or a Multiple Voting Shares would otherwise be issuable on a subdivision, consolidation, reclassification or change of one or more Subordinate Voting Shares or Multiple Voting Shares, the Corporation shall in lieu thereof adjust such fractional interest by the payment by cheque (to the nearest cent) of an amount related or equivalent to the then current market value of such fractional interest computed on the basis of the last board lot sale price (or the last bid price, if there has been no board lot sale) for the Subordinate Voting Shares on the Toronto Stock Exchange (or on such stock exchange in Canada on which the Subordinate Voting Shares are listed or traded as may be selected for such purpose by the directors of the Corporation) on the business day on which such stock exchange was open next preceding the date of such subdivision, consolidation, reclassification or change or if the Subordinate Voting Shares are not then listed on any stock exchange, then the current market price in any public market in which the Subordinate Voting Shares are traded and otherwise in the discretion of the board of directors.
12.03 In the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of the assets of the Corporation amongst its shareholders for the purposes of winding-up its affairs, all of the property and assets of the Corporation available for distribution to the shareholders of the Corporation shall, after providing for preferential payment of the amounts required to be paid under and in respect of any Preference Shares or series thereof ranking in priority, shall be paid or distributed in equal amounts per share on all Subordinate Voting Shares and Multiple Voting Shares at the time outstanding without preference or distinction and the holders thereof shall as such participate on a share-for-share basis equally therein.
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13.00
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PROVISIONS RELATING TO SUBORDINATE VOTING SHARES AND MULTIPLE VOTING SHARES
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13.01 Notwithstanding any of the provisions herein, the Articles of the Corporation hereby provide that, for the purposes of the take-over bid and issuer bid provisions of the Securities Act (Ontario) and the rules and regulations thereunder, in each case, as amended from time to time: (a) the Subordinate Voting Shares and the Multiple Voting Shares shall be treated as, and are hereby deemed to constitute, one class of voting securities; and (b) the published market for such one class of voting securities shall be deemed to be the published market of the Subordinate Voting Shares. For greater certainty, the provisions of this Section 13.01 shall have no application in the event of a purchase of Multiple Voting Shares at a price per share not in excess of the aggregate of: (i) the "market price" per share (at the time of such purchase) determined in accordance with the provisions of the Securities Act (Ontario) and the rules and regulations thereunder (in each case, as amended or replaced from time to time) together with any permitted premium, plus (ii) reasonable brokerage fees or other commissions calculated on a per share basis. For the purposes of this Section 13.01, "market price" is as defined in Section 1.3 of Ontario Securities Commission Rule 62-504 – Take-Over Bids and Issuer Bids made under the Securities Act (Ontario) (as such section is amended or replaced from time to time).
FirstService SV Special Shares and FirstService MV Special Shares
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E.
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The FirstService Articles are hereby amended by inserting the following immediately following the rights, privileges, restrictions and conditions of the Subordinate Voting Shares and Multiple Voting Shares:
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FirstService MV Special Shares
14.00 PREFERENCE SHARES, SERIES MV
The third series of the Preference Shares of the Corporation shall consist of an unlimited number of Preference Shares, which shares shall be designated as "Preference Shares, Series MV" (collectively, the "FirstService MV Special Shares") and which, in addition to the rights, privileges, restrictions and conditions attached to the Preference Shares of the Corporation as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
14.01 Dividends
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(1)
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The holders of FirstService MV Special Shares shall be entitled to receive, and the Corporation shall pay thereon, if, as and when declared by the Board of Directors of Corporation out of moneys of the Corporation properly applicable to the payment of dividends, non-cumulative dividends.
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(2)
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Except with the consent in writing of the holders of all of the FirstService MV Special Shares, no dividend shall at any time be declared and paid on, or declared and set apart for payment on, the Class A Subordinate Voting Shares, the Subordinate Voting Shares, Class A Multiple Voting Shares or the Multiple Voting Shares unless, after the payment of such dividend, the realizable value of the assets of the Corporation would not be less than the FirstService MV Special Share Redemption Price (as hereinafter defined).
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14.02 Redemption. The Corporation may, to the extent permitted by applicable law, redeem at any time the whole, or from time to time any part, of the FirstService MV Special Shares then outstanding on payment (which may, at the discretion of the Corporation, be made through the issuance of a promissory note or promissory notes) of a redemption price per FirstService MV Special Share equal to the total of the following two amounts:
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(1)
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that amount which is equal to the quotient obtained when:
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(a)
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the Butterfly Proportion Amount (as hereinafter defined) multiplied by a fraction:
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| |
(i)
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the numerator of which is the fair market value of all of the issued and outstanding Class A Multiple Voting Shares as determined immediately prior to effecting the FirstService Share Exchange (as hereinafter defined); and
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(ii)
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the denominator of which is the fair market value of all of the issued and outstanding Class A Multiple Voting Shares and Class A Subordinate Voting Shares as determined immediately prior to effecting the FirstService Share Exchange;
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is divided by:
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(b)
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the number of FirstService MV Special Shares issued in connection with the FirstService Share Exchange;
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plus:
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(2)
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that amount which is equal to all declared and unpaid dividends on such FirstService MV Special Share;
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the whole constituting and being herein referred to in these provisions as the "FirstService MV Special Share Redemption Price", and the aggregate amount required to redeem all of the FirstService MV Special Shares then outstanding being the "FirstService MV Special Shares Redemption Amount". For the purposes of this Section 14.00 and Section 15.00:
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(3)
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"Butterfly Proportion Amount" means that amount which is equal to the result obtained when the fair market value of all of the issued and outstanding Class A Multiple Voting Shares and Class A Subordinate Voting Shares, determined immediately prior to effecting the FirstService Share Exchange, is multiplied by the fraction A/B where:
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A
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=
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is the Net Fair Market Value of the Distribution Property to be transferred by the Corporation to New FSV as described in subsection 3.1(j) of the Plan of Arrangement, determined immediately before the Distribution Property Exchange; and
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B
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=
|
is the Net Fair Market Value of all property owned by the Corporation immediately before the Distribution Property Exchange, determined immediately before the Distribution Property Exchange;
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(4)
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"Distribution Property" has the meaning attributed to such term in the Plan of Arrangement;
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(5)
|
"Distribution Property Exchange" has the meaning attributed to such term in the Plan of Arrangement;
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(6)
|
"FirstService Share Exchange" has the meaning attributed to such term in the Plan of Arrangement;
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(7)
|
"Net Fair Market Value" means, in respect of any property, the net fair market value of that property determined on a consolidated basis in accordance with all administrative policies of the Canada Revenue Agency in effect at the time of the FirstService Share Exchange and, in determining Net Fair Market Value, the following principles will apply:
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| |
(a)
|
any tax-related accounts in any corporation (such as deferred income taxes, the balance of non-capital losses and the balance of net capital losses) will not be considered to be property of that corporation;
|
| |
(b)
|
the amount of any liability will be its principal amount;
|
| |
(c)
|
no amount will be considered to be a liability unless it represents a true legal liability which is capable of quantification;
|
| |
(d)
|
the portion of the long-term debt due within one year will be treated as a current liability; and
|
| |
(e)
|
liabilities of a corporation will include its respective partnership share of each liability of any partnership of which such corporation is a partner;
|
|
(8)
|
"New FSV" has the meaning attributed to such term in the Plan of Arrangement; and
|
|
(9)
|
"Plan of Arrangement" means the Plan of Arrangement to which this Exhibit "I" is attached.
|
14.03 Retraction. Any holder of FirstService MV Special Shares shall be entitled to require the Corporation to redeem, subject to the requirements of applicable law, at any time all of the FirstService MV Special Shares registered in the name of such holder on the books of the Corporation at the redemption price per share equal to the FirstService MV Special Share Redemption Price by tendering to the Corporation at the registered office of the Corporation a certificate or certificates representing all of the FirstService MV Special Shares held by such holder together with a notice in writing specifying: (1) that the holder desires to have the FirstService MV Special Shares represented by such certificate or certificates redeemed by the Corporation; and (2) the business day (the "Retraction MV Date") on which the holder desires to have the Corporation redeem such FirstService MV Special Shares. Following receipt of such share certificate or certificates and written notice, the Corporation will, on the Retraction MV Date (or as soon as practicable thereafter), redeem such FirstService MV Special Shares by paying to the holder the FirstService MV Special Share Redemption Price for each FirstService MV Special Share so redeemed.
14.04 Dissolution, Liquidation or Winding-up. In the event of the dissolution, liquidation or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of assets of the Corporation among its shareholders for the purpose of winding-up its affairs, the holders of FirstService MV Special Shares shall be entitled to receive from the assets of the Corporation an amount equal to the FirstService MV Special Shares Redemption Amount before any amount shall be paid or any assets of the Corporation distributed upon any liquidation, dissolution or winding-up of the Corporation to the holders of the Class A Subordinate Voting Shares, the Subordinate Voting Shares, the Class A Multiple Voting Shares or the Multiple Voting Shares. After payment to the holders of FirstService MV Special Shares of the amount so payable to them, such holders shall not be entitled to share in any further distribution of the assets of the Corporation.
14.05 Cancellation. Any FirstService MV Special Share that is redeemed by the Corporation pursuant to this Section 14.00 will for all purposes be considered to have been redeemed on, and will be cancelled concurrently with, the payment of the FirstService MV Special Share Redemption Price by the Corporation to or for the benefit of the holder thereof.
14.06 Specified Amount for Part VI.1 of the Income Tax Act (Canada). For the purposes of subsection 191(4) of the Income Tax Act (Canada), [$►]1 is hereby specified in respect of each FirstService MV Special Share.
FirstService SV Special Shares
15.00 PREFERENCE SHARES, SERIES SV
The fourth series of the Preference Shares of the Corporation shall consist of an unlimited number of Preference Shares, which shares shall be designated as "Preference Shares, Series SV" (collectively, the "FirstService SV Special Shares") and which, in addition to the rights, privileges, restrictions and conditions attached to the Preference Shares of the Corporation as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
15.01 Dividends
|
(1)
|
The holders of FirstService SV Special Shares shall be entitled to receive, and the Corporation shall pay thereon, if, as and when declared by the Board of Directors of Corporation out of moneys of the Corporation properly applicable to the payment of dividends, non-cumulative dividends.
|
|
(2)
|
Except with the consent in writing of the holders of all of the FirstService SV Special Shares, no dividend shall at any time be declared and paid on, or declared and set apart for payment on, the Class A Subordinate Voting Shares, the Subordinate Voting Shares, Class A Multiple Voting Shares or the Multiple Voting Shares unless, after the payment of such dividend, the realizable value of the assets of the Corporation would not be less than the FirstService SV Special Share Redemption Price (as hereinafter defined).
|
________________________
|
1
|
Effective Date value to be inserted prior to filing Certificate of Arrangement.
|
15.02 Redemption. The Corporation may, to the extent permitted by applicable law, redeem at any time the whole, or from time to time any part, of the FirstService SV Special Shares then outstanding on payment (which may, at the discretion of the Corporation, be made through the issuance of a promissory note or promissory notes) of a redemption price per FirstService SV Special Share equal to the total of the following two amounts:
|
(1)
|
that amount which is equal to the quotient obtained when:
|
| |
(a)
|
the Butterfly Proportion Amount (as such term is defined in Section 14.02) multiplied by a fraction:
|
| |
(i)
|
the numerator of which is the fair market value of all of the issued and outstanding Class A Subordinate Voting Shares as determined immediately prior to effecting the FirstService Share Exchange (as such term is defined in Section 14.02); and
|
| |
(ii)
|
the denominator of which is the fair market value of all of the issued and outstanding Class A Multiple Voting Shares and Class A Subordinate Voting Shares as determined immediately prior to effecting the FirstService Share Exchange (as such term is defined in Section 14.02);
|
is divided by:
| |
(b)
|
the number of FirstService SV Special Shares issued in connection with the FirstService Share Exchange (as such term is defined in Section 14.02);
|
plus:
|
(2)
|
that amount which is equal to all declared and unpaid dividends on such FirstService SV Special Share;
|
the whole constituting and being herein referred to in these provisions as the "FirstService SV Special Share Redemption Price", and the aggregate amount required to redeem all of the FirstService SV Special Shares then outstanding being the "FirstService SV Special Shares Redemption Amount".
15.03 Retraction. Any holder of FirstService SV Special Shares shall be entitled to require the Corporation to redeem, subject to the requirements of applicable law, at any time all of the FirstService SV Special Shares registered in the name of such holder on the books of the Corporation at the redemption price per share equal to the FirstService SV Special Share Redemption Price by tendering to the Corporation at the registered office of the Corporation a certificate or certificates representing all of the FirstService SV Special Shares held by such holder together with a notice in writing specifying: (1) that the holder desires to have the FirstService SV Special Shares represented by such certificate or certificates redeemed by the Corporation; and (2) the business day (the "Retraction SV Date") on which the holder desires to have the Corporation redeem such FirstService SV Special Shares. Following receipt of such share certificate or certificates and written notice, the Corporation will, on the Retraction SV Date (or as soon as practicable thereafter), redeem such FirstService SV Special Shares by paying to the holder the FirstService SV Special Share Redemption Price for each FirstService SV Special Share so redeemed.
15.04 Dissolution, Liquidation or Winding-up. In the event of the dissolution, liquidation or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of assets of the Corporation among its shareholders for the purpose of winding-up its affairs, the holders of FirstService SV Special Shares shall be entitled to receive from the assets of the Corporation an amount equal to the FirstService SV Special Shares Redemption Amount before any amount shall be paid or any assets of the Corporation distributed upon any liquidation, dissolution or winding-up of the Corporation to the holders of the Class A Subordinate Voting Shares, the Subordinate Voting Shares, the Class A Multiple Voting Shares or the Multiple Voting Shares. After payment to the holders of FirstService SV Special Shares of the amount so payable to them, such holders shall not be entitled to share in any further distribution of the assets of the Corporation.
15.05 Cancellation. Any FirstService SV Special Share that is redeemed by the Corporation pursuant to this Section 15.00 will for all purposes be considered to have been redeemed on, and will be cancelled concurrently with, the payment of the FirstService SV Special Share Redemption Price by the Corporation to or for the benefit of the holder thereof.
15.06 Specified Amount for Part VI.1 of the Income Tax Act (Canada). For the purposes of subsection 191(4) of the Income Tax Act (Canada), [$►]2 is hereby specified in respect of each FirstService SV Special Share.
_____________________
|
2
|
Effective Date value to be inserted prior to filing Certificate of Arrangement.
|
EXHIBIT "II"
TO PLAN OF ARRANGEMENT
SHARE TERMS OF NEW FSV
1.00 THE PREFERENCE SHARES
1.01 The Preference Shares may at any time or from time to time be issued in one or more series, each series to consist of such number of shares as may, before the issue thereof, be determined by the board of directors of the Corporation. The directors shall by resolution fix, from time to time, before the issue of any series of Preference Shares, the designation, preferences, rights, restrictions, conditions, limitations, priorities as to payment of dividends and/or distribution on liquidation, dissolution or winding-up, or prohibitions attaching thereto including, without limiting the generality of the foregoing, the provision of a purchase fund, the right of the Corporation to purchase such shares for cancellation, the rate of preferential dividends, the dates of payment thereof, the date or dates from which any such preferential dividends shall accrue, redemption rights including purchase or redemption price, terms and conditions of redemption, conversion rights and any sinking fund or other provisions, and authorize the issuance thereof.
1.02 The directors before the issue of any Preference Shares of a series shall file with the Director appointed under the Business Corporations Act (Ontario) or any successor statute of the Province of Ontario which is from time to time in force (the "Act"), Articles of Amendment designating such series and specifying the number, designation, preferences, rights, restrictions, conditions, limitations, priorities as to payment of dividends and/or distribution on liquidation, dissolution or winding-up, and prohibitions attached thereto, and shall obtain a certificate from the Director with respect thereto.
1.03 The Preference Shares of each series shall be entitled to preference over the Subordinate Voting Shares, the Multiple Voting Shares and any other shares ranking junior to the Preference Shares with respect to priority in payment of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding-up its affairs, and may also be given such other preferences over the Subordinate Voting Shares, the Multiple Voting Shares and any other shares ranking junior to the Preference Shares as may be determined with respect to the respective series authorized to be issued.
1.04 The holders of the Preference Shares shall not be entitled as such, except as required by law, to receive notice of or to attend any meeting of the shareholders of the Corporation or to vote at any such meeting, but shall be entitled to receive notice of meetings of shareholders of the Corporation called for the purpose of authorizing the dissolution of the Corporation or the sale of its undertaking or a substantial part thereof.
2.00 SUBORDINATE VOTING SHARES
2.01 The holders of the Subordinate Voting Shares shall be entitled to receive notice of, to attend and speak at and to vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of another class as such or the holders of a series of shares of another class as such, and at such meeting shall have one (1) vote for each Subordinate Voting Share held.
2.02 Subject to any provisions of the Act and to applicable securities laws and the by-laws, regulations or policies of any stock exchange upon which the Subordinate Voting Shares may then be listed, all or any part of the Subordinate Voting Shares which are then outstanding shall be purchasable for cancellation by the Corporation at any time, in the open market, by private contract or otherwise, at the lowest price at which, in the opinion of the directors, such shares are obtainable.
2.03 The Subordinate Voting Shares shall not be redeemable by the Corporation.
2.04 If the Act would in effect require in the absence of this Section 2.04 that an amendment to the Articles of the Corporation to delete or vary any preference, right, condition, restriction, limitation or prohibition attaching to any of the Subordinate Voting Shares, or to create special shares ranking in priority to or on a parity with the Subordinate Voting Shares, be confirmed in writing by the holders of 100% or any lesser percentage of the then outstanding Subordinate Voting Shares, then in lieu of such confirmation in writing, such confirmation may be given by at least two-thirds of the votes cast at a meeting of the holders of the Subordinate Voting Shares duly called for that purpose and, at such meeting, each holder of Subordinate Voting Shares shall be entitled to one vote for each Subordinate Voting Share held.
2.05 The holders of the Subordinate Voting Shares shall not have any right to vote separately upon any proposal to amend the Articles of the Corporation to:
|
(1)
|
increase any maximum number of authorized shares of any class or series having rights or privileges equal or superior to the Subordinate Voting Shares; or
|
|
(2)
|
create a new class of shares equal or superior to the Subordinate Voting Shares.
|
2.06
|
(1)
|
For the purposes of this Section 2.06:
|
| |
(a)
|
"affiliate" has the meaning assigned by the Securities Act (Ontario) as amended from time to time;
|
| |
(b)
|
"associate" has the meaning assigned by the Securities Act (Ontario) as amended from time to time;
|
| |
(c)
|
"Conversion Period" means the period of time commencing on the eighth day after the Offer Date and terminating on the Expiry Date;
|
| |
(d)
|
"Converted Shares" means Multiple Voting Shares resulting from the conversion of Subordinate Voting Shares into Multiple Voting Shares pursuant to subsection 2.06(2);
|
| |
(e)
|
"Exclusionary Offer" means an offer to purchase Multiple Voting Shares that:
|
| |
(i)
|
must, by reason of applicable securities legislation or the requirements of a stock exchange on which the Multiple Voting Shares are listed, be made to all or substantially all holders of Multiple Voting Shares who are in a province of Canada to which the requirement applies;
|
| |
(ii)
|
is not made concurrently with an offer to purchase Subordinate Voting Shares that is identical to the offer to purchase Multiple Voting Shares in terms of price per share and percentage of outstanding shares to be taken up exclusive of shares owned immediately prior to the offer by the Offeror and, in all other material respects, that has no condition attached other than the right not to take up and pay for shares tendered if no shares are tendered pursuant to the offer for Multiple Voting Shares,
|
and, for the purposes of this definition, if an offer to purchase Multiple Voting Shares is not an Exclusionary Offer as defined above but would be an Exclusionary Offer if it were not for clause 2.06(1)(e)(ii), the varying of any term of such offer shall be deemed to constitute the making of a new offer unless an identical variation concurrently is made to the corresponding offer to purchase Subordinate Voting Shares;
| |
(f)
|
"Expiry Date" means the last date upon which holders of Multiple Voting Shares may accept an Exclusionary Offer;
|
| |
(g)
|
"Offer Date" means the date on which an Exclusionary Offer is made;
|
| |
(h)
|
"Offeror" means a person or company that makes an offer to purchase Multiple Voting Shares (the "bidder"), and includes any associate or affiliate of the bidder or any person or company that is disclosed in the offering document to be acting jointly or in concert with the bidder; and
|
| |
(i)
|
"transfer agent" means the transfer agent for the time being of the Multiple Voting Shares.
|
|
(2)
|
Subject to subsection 2.06(5), if an Exclusionary Offer is made, each outstanding Subordinate Voting Share shall be convertible into one Multiple Voting Share at the option of the holder during the Conversion Period. The conversion right may be exercised by notice in writing given to the transfer agent accompanied by the share certificate or certificates representing the Subordinate Voting Shares which the holder desires to convert, and such notice shall be executed by such holder, or by his attorney duly authorized in writing, and shall specify the number of Subordinate Voting Shares which the holder desires to have converted. The holder shall pay any governmental or other tax imposed on or in respect of such conversion. Upon receipt by the transfer agent of such notice and share certificate or certificates, the Corporation shall issue a share certificate representing fully-paid Multiple Voting Shares as above prescribed and in accordance with subsection 2.06(4). If less than all of the Subordinate Voting Shares represented by any share certificate are to be converted, the holder shall be entitled to receive a new share certificate representing in the aggregate the number of Subordinate Voting Shares represented by the original share certificate which are not to be converted.
|
|
(3)
|
An election by a holder of Subordinate Voting Shares to exercise the conversion right provided for in subsection 2.06(2) shall be deemed to also constitute an irrevocable election by such holder to deposit the Converted Shares pursuant to the Exclusionary Offer (subject to such holder's right to subsequently withdraw the shares from the offer) and to exercise the right to convert into Subordinate Voting Shares all Converted Shares in respect of which such holder exercises his right of withdrawal from the Exclusionary Offer or which are not otherwise ultimately taken up under the Exclusionary Offer. Any conversion into Subordinate Voting Shares, pursuant to such deemed election, of Converted Shares in respect of which the holder exercises his right of withdrawal from the Exclusionary Offer shall become effective at the time such right of withdrawal is exercised. If the right of withdrawal is not exercised, any conversion into Subordinate Voting Shares pursuant to such deemed election shall become effective:
|
| |
(a)
|
in respect of an Exclusionary Offer which is completed, immediately following the time by which the Offeror is required by applicable securities legislation to take up and pay for all shares to be acquired by the Offeror under the Exclusionary Offer; and
|
| |
(b)
|
in respect of an Exclusionary Offer which is abandoned or withdrawn, at the time at which the Exclusionary Offer is abandoned or withdrawn.
|
|
(4)
|
No share certificates representing Converted Shares shall be delivered to the holders of the shares before such shares are deposited pursuant to the Exclusionary Offer; the transfer agent, on behalf of the holders of the Converted Shares, shall deposit pursuant to the Exclusionary Offer a certificate or certificates representing the Converted Shares. Upon completion of the Offer, the transfer agent shall deliver to the holders entitled thereto all consideration paid by the Offeror pursuant to the offer. If Converted Shares are converted into Subordinate Voting Shares pursuant to subsection 2.06(3), the transfer agent shall deliver to the holders entitled thereto share certificates representing the Subordinate Voting Shares representing the Subordinate Voting Shares resulting from the conversion. The Corporation shall make all arrangements with the transfer agent necessary or desirable to give effect to this sub-paragraph.
|
|
(5)
|
Subject to subsection 2.06(6), the conversion right provided for in subsection 2.06(2) shall not come into effect if:
|
| |
(a)
|
prior to the time at which the Exclusionary Offer is made there is delivered to the transfer agent and to the Secretary of the Corporation a certificate or certificates signed by or on behalf of one or more shareholders of the Corporation owning in the aggregate, as at the time the Exclusionary Offer is made, more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the Exclusionary Offer by the Offeror, which certificate or certificates shall confirm, in the case of each such shareholder, that such shareholder shall not:
|
| |
(i)
|
accept any Exclusionary Offer without giving the transfer agent and the Secretary of the Corporation written notice of such acceptance or intended acceptance at least seven days prior to the Expiry Date;
|
| |
(ii)
|
make any Exclusionary Offer;
|
| |
(iii)
|
act jointly or in concert with any person or company that makes any Exclusionary Offer; or
|
| |
(iv)
|
transfer any Multiple Voting Shares, directly or indirectly, during the time at which any Exclusionary. Offer is outstanding without giving the transfer agent and the Secretary of the Corporation written notice of such transfer or intended transfer at least seven days prior to the Expiry Date, which notice shall state, if known to the transferor, the names of the transferees and the number of Multiple Voting Shares transferred or to be transferred to each transferee; or
|
| |
(b)
|
within seven days after the Offer Date there is delivered to the transfer agent and to the Secretary of the Corporation a certificate or certificates signed by or on behalf of one or more shareholders of the Corporation owning in the aggregate more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the Exclusionary Offer by the Offeror, which certificate or certificates shall confirm, in the case of each such shareholder:
|
| |
(i)
|
the number of Multiple Voting Shares owned by the shareholder;
|
| |
(ii)
|
that such shareholder is not making the offer and is not an associate or affiliate of, or acting jointly or in concert with, the person or company making the offer;
|
| |
(iii)
|
that such shareholder shall not accept the offer, including any varied form of the offer, without giving the transfer agent and the Secretary of the Corporation written notice of such acceptance or intended acceptance at least seven days prior to the Expiry Date; and
|
| |
(iv)
|
that such shareholder shall not transfer any Multiple Voting Shares, directly or indirectly, prior to the Expiry Date without giving the transfer agent and the Secretary of the Corporation written notice of such transfer or intended transfer at least seven days prior to the Expiry Date, which notice shall state, if known to the transferor, the names of the transferees and the number of. Multiple Voting Shares transferred or to be transferred to each transferee if this information is known to the transferor.
|
|
(6)
|
If notice referred to in clause 2.06(5)(a)(i), 2.06(5)(a)(iv), 2.06(5)(b)(iii) or 2.06(5)(b)(iv) is given and the conversion right provided for in subsection 2.06(2) has not come into effect, the transfer agent shall either forthwith upon receipt of the notice or forthwith after the seventh day following the Offer Date, whichever is later, make a determination as to whether there are subsisting certifications that comply with either paragraph 2.06(5)(a) or 2.06(5)(b) from shareholders of the Corporation who own in the aggregate more than 50% of the then outstanding Multiple Voting Shares, exclusive of shares owned immediately prior to the offer by the Offeror. For the subject of such notice shall be deemed to have taken place at the time of the determination, and the shares that are the subject of such notice shall be deemed to have been transferred to a person or company from whom the transfer agent has not received such a certification unless the transfer agent is otherwise advised either by such notice or by the transferee in writing. If the transfer agent determines that there are not such subsisting certifications, subsection 2.06(5) shall cease to apply and the conversion right provided for in subsection 2.06(2) shall be in effect for the remainder of the Conversion Period.
|
|
(7)
|
As soon as reasonably possible after the seventh day after the Offer Date, the Corporation shall send to each holder of Subordinate Voting Shares a notice advising the holders as to whether they are entitled to convert their Subordinate Voting Shares into Multiple Voting Shares and the reasons therefor. If such notice discloses that they are not so entitled but is subsequently determined that they are so entitled by virtue of subsection 2.06(6) or otherwise, the Corporation shall forthwith send another notice to them advising them of that fact and the reasons therefor.
|
|
(8)
|
If a notice referred to in subsection 2.06(7) discloses that the conversion right has come into effect, the notice shall:
|
| |
(a)
|
include a description of the procedure to be followed to effect the conversion and to have the Converted Shares tendered under the offer;
|
| |
(b)
|
include the information set out in subsection 2.06(3); and
|
| |
(c)
|
be accompanied by a copy of the offer and all other material sent to holders of Multiple Voting Shares in respect of the offer, and as soon as reasonably possible after any additional material, including a notice of variation, is sent to the holders of Multiple Voting Shares in respect of the offer, the Corporation shall send a copy of such additional material to each holder of Subordinate Voting Shares.
|
|
(9)
|
Prior to or forthwith after sending any notice referred to in subsection 2.06(7), the Corporation shall cause a press release to be issued to a Canadian national news ticker service, describing the contents of the notice.
|
3.00 MULTIPLE VOTING SHARES
3.01 The holders of the Multiple Voting Shares shall be entitled to receive notice of, and to attend and speak at and vote at any meeting of the shareholders of the Corporation, other than a meeting of the holders of shares of another class as such or of the holders of a series of shares of another class as such, and at such meeting shall have twenty (20) votes for each Multiple Voting Share held.
3.02 Subject to any provisions of the Act and to applicable securities laws and the by-laws, regulations or policies of any stock exchange upon which the Multiple Voting Shares may then be listed, all or any part of the Multiple Voting Shares which are then outstanding shall be purchasable for cancellation by the Corporation at any time, in the open market, by private contract or otherwise, at the lowest price at which, in the opinion of the directors, such shares are obtainable.
3.03 The Multiple Voting Shares shall not be redeemable by the Corporation.
3.04 If the Act would in effect require in the absence of this Section 3.04 that an amendment to the Articles of the Corporation to delete or vary any preference, right, condition, restriction, limitation or prohibition attaching to any of the Multiple Voting Shares, or to create special shares ranking in priority to or on a parity with the Multiple Voting Shares, be confirmed in writing by the holders of 100% or any lesser percentage of the then outstanding Multiple Voting Shares, then in lieu of such confirmation in writing, such confirmation may be given by at least two-thirds of the votes cast at a meeting of the holders of the Multiple Voting Shares duly called for that purpose and, at such meeting, each holder of Multiple Voting Shares shall be entitled to one vote for each Multiple Voting Shares held.
3.05 The holders of the Multiple Voting Shares shall not have any right to vote separately upon any proposal to amend the Articles of the Corporation to:
|
(1)
|
increase any maximum number of authorized shares of a class or series having rights or privileges equal or superior to the Multiple Voting Shares; or
|
|
(2)
|
create a new class of shares equal or superior to the Multiple Voting Shares.
|
3.06 Each Multiple Voting Share shall be convertible at any time, at the option of the holder thereof, into a Subordinate Voting Share, on the basis of one Subordinate Voting Share for each Multiple Voting Share so converted. The holder of Multiple Voting Shares desiring to convert such Multiple Voting Shares into Subordinate Voting Shares on the basis aforesaid shall deliver to the transfer agent for the time being of the Subordinate Voting Shares the share certificate or share certificates representing the Multiple Voting Shares which the holder desires to so convert accompanied by a written notice duly executed by such holder or his attorney duly authorized in writing, which notice shall state that such holder elects to convert the Multiple Voting Shares represented by such share certificate or share certificates into Subordinate Voting Shares in accordance with the provisions hereof and which notice shall further state the name or names (with addresses) in which the share certificate or certificates for Subordinate Voting Shares issuable on such conversion shall be issued and, if any of the Subordinate Voting Shares into which such Multiple Voting Shares are to be converted are to be issued to a person or persons other than the holder of such Multiple Voting Shares, there shall be paid to such transfer agent, for the account of the Corporation, any transfer taxes which may properly be payable. If any such share certificate or share certificates representing any of the Subordinate Voting Shares issuable on conversion are directed to be issued to any person other than the holder of such Multiple Voting Shares, the signature of such holder shall be guaranteed by a Canadian chartered bank or such other financial institution as such transfer agent may require. Such holder shall, in addition, comply with such other reasonable requirements as such transfer agent may prescribe. As promptly as practicable after the receipt of such notice of election to convert, the payment of such transfer tax (if any), the delivery of such share certificate or share certificates and compliance with all reasonable requirements of the transfer agent as aforesaid, the Corporation shall cause the transfer agent for the Subordinate Voting Shares to issue and deliver in accordance with such notice of election to convert a share certificate or share certificates representing the number of Subordinate Voting Shares into which such Multiple Voting Shares have been converted in accordance with the provisions of this Section 3.06. Such conversion shall be deemed to have been made immediately prior to the close of business on the date on which all conditions precedent to the conversion of such Multiple Voting Shares have been fulfilled and the person or persons in whose name or names any share certificate or share certificates for Subordinate Voting Shares shall be issuable shall be deemed to have become on the said date the holder or holders of record of the Subordinate Voting Shares represented thereby; provided, however, that if the transfer books of the Corporation for Subordinate Voting Shares shall be closed on the said date, the Corporation shall not be required to issue Subordinate Voting Shares upon such conversion until the date on which such transfer books shall be re-opened and such person or persons shall not be deemed to have become the holder or holders of record of such Subordinate Voting Shares until the said date on which such transfer books shall be reopened. There shall be no payment or adjustment on account of any unpaid dividends on the Multiple Voting Shares converted or on account of any dividends on the Subordinate Voting Shares resulting from such conversion. In the event that part only of the Multiple Voting Shares represented by any share certificate shall be converted, a share certificate for the remainder of the Multiple Voting Shares represented by the said share certificate shall be delivered to the holder converting without charge.
|
4.00
|
DIVIDENDS AND DISTRIBUTION RIGHTS OF THE SUBORDINATE AND MULTIPLE VOTING SHARES
|
4.01 All dividends which are declared in any year in the discretion of the directors on all of the Subordinate Voting Shares shall be declared and paid in an equal or, in the discretion of the directors, a greater amount per share than on all of the Multiple Voting Shares at the time outstanding. All dividends which are declared in any year, in the discretion of the directors, on all of the Multiple Voting Shares shall be declared and paid in an equal or, in the discretion of the directors, a lesser amount per share than on all of the Subordinate Voting Shares outstanding. If any stock dividend is declared on Subordinate Voting Shares, such dividend may be paid in Subordinate Voting Shares, such dividend may be paid in Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, if stock dividends in equal or, in the discretion of the directors, lesser amounts per share are declared at the same time on the Multiple Voting Shares and are payable in either Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, regardless of which class the stock dividend was paid on Subordinate Voting Shares. If any stock dividend is declared on Multiple Voting Shares, such dividend may be paid in Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, if stock dividends in equal or, in the discretion of the directors, greater amounts per share are paid at the same time on the Subordinate Voting. Shares and are payable in either Subordinate Voting Shares or in Multiple Voting Shares, or partly in one class and partly in the other, regardless of which class the stock dividend was paid on Multiple Voting Shares.
4.02 All distributions other than dividends (including, but without limiting the generality of the foregoing, any distribution of rights, warrants or options to purchase securities of the Corporation), and all such distributions which may at any time or from time to time be authorized or made:
|
(1)
|
in respect of the Subordinate Voting Shares, shall be authorized and made in equal or, in the discretion of the directors, greater quantities or amounts per share than on all Multiple Voting Shares then outstanding without preference or distinction; and
|
|
(2)
|
in respect of the Multiple Voting Shares, shall be authorized and made in equal or, in the discretion of the directors, lesser quantities or amounts per share than on all Subordinate Voting Shares then outstanding without preference or distinction.
|
|
5.00
|
SUBDIVISIONS, CONSOLIDATIONS, RECLASSIFICATIONS, WINDING-UP AND LIQUIDATION, ETC.
|
5.01 No subdivision, consolidation, reclassification or other change of the Subordinate Voting Shares or the Multiple Voting Shares shall be made unless at the time an equivalent or comparable subdivision, consolidation, reclassification or change is made with respect to all of the Multiple Voting Shares and Subordinate Voting Shares, respectively, which are then outstanding.
5.02 In any case where a fraction of a Subordinate Voting Shares or a Multiple Voting Shares would otherwise be issuable on a subdivision, consolidation, reclassification or change of one or more Subordinate Voting Shares or Multiple Voting Shares, the Corporation shall in lieu thereof adjust such fractional interest by the payment by cheque (to the nearest cent) of an amount related or equivalent to the then current market value of such fractional interest computed on the basis of the last board lot sale price (or the last bid price, if there has been no board lot sale) for the Subordinate Voting Shares on the Toronto Stock Exchange (or on such stock exchange in Canada on which the Subordinate Voting Shares are listed or traded as may be selected for such purpose by the directors of the Corporation) on the business day on which such stock exchange was open next preceding the date of such subdivision, consolidation, reclassification or change or if the Subordinate Voting Shares are not then listed on any stock exchange, then the current market price in any public market in which the Subordinate Voting Shares are traded and otherwise in the discretion of the board of directors.
5.03 In the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of the assets of the Corporation amongst its shareholders for the purposes of winding-up its affairs, all of the property and assets of the Corporation available for distribution to the shareholders of the Corporation shall, after providing for preferential payment of the amounts required to be paid under and in respect of any Preference Shares or series thereof ranking in priority, shall be paid or distributed in equal amounts per share on all Subordinate Voting Shares and Multiple Voting Shares at the time outstanding without preference or distinction and the holders thereof shall as such participate on a share-for-share basis equally therein.
|
6.00
|
PROVISIONS RELATING TO SUBORDINATE VOTING SHARES AND MULTIPLE VOTING SHARES
|
6.01 Notwithstanding any of the provisions herein, the Articles of the Corporation hereby provide that, for the purposes of the take-over bid and issuer bid provisions of the Securities Act (Ontario) and the rules and regulations thereunder, in each case, as amended from time to time: (a) the Subordinate Voting Shares and the Multiple Voting Shares shall be treated as, and are hereby deemed to constitute, one class of voting securities; and (b) the published market for such one class of voting securities shall be deemed to be the published market of the Subordinate Voting Shares. For greater certainty, the provisions of this Section 6.01 shall have no application in the event of a purchase of Multiple Voting Shares at a price per share not in excess of the aggregate of: (i) the "market price" per share (at the time of such purchase) determined in accordance with the provisions of the Securities Act (Ontario) and the rules and regulations thereunder (in each case, as amended or replaced from time to time) together with any permitted premium, plus (ii) reasonable brokerage fees or other commissions calculated on a per share basis. For the purposes of this Section 6.01, "market price" is as defined in Section 1.3 of Ontario Securities Commission Rule 62-504 – Take-Over Bids and Issuer Bids made under the Securities Act (Ontario) (as such section is amended or replaced from time to time).
EXHIBIT "III"
TO PLAN OF ARRANGEMENT
PART A – DIRECTORS OF NEW FSV
|
First Name, Middle Name
and Surname
|
Address
|
Resident Canadian
("Yes" or "No")
|
|
Brendan Calder
|
Toronto, Ontario, Canada
|
Yes
|
|
Bernard I. Ghert
|
Toronto, Ontario, Canada
|
Yes
|
|
Jay S. Hennick
|
Toronto, Ontario, Canada
|
Yes
|
|
D. Scott Patterson
|
Toronto, Ontario, Canada
|
Yes
|
|
Frederick F. Reichheld
|
Wellesley, Massachusetts, USA
|
No
|
|
Michael Stein
|
Toronto, Ontario, Canada
|
Yes
|
PART B – DIRECTORS OF COLLIERS
|
First Name, Middle Name
and Surname
|
Address
|
Resident Canadian
("Yes" or "No")
|
|
David R. Beatty
|
Toronto, Ontario, Canada
|
Yes
|
|
Peter F. Cohen
|
Toronto, Ontario, Canada
|
Yes
|
|
John (Jack) P. Curtin, Jr.
|
Toronto, Ontario, Canada
|
Yes
|
|
Michael D. Harris
|
Toronto, Ontario, Canada
|
Yes
|
|
Jay S. Hennick
|
Toronto, Ontario, Canada
|
Yes
|
|
Frederick Sutherland
|
Devon, Pennsylvania, USA
|
No
|
EXHIBIT "IV"
TO PLAN OF ARRANGEMENT
BY-LAWS OF NEW FSV
BY-LAW NO. 1
a by-law to regulate the business and affairs of
NEW FSVCORPORATION
(to be renamed "FirstService Corporation")
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this By-Law No. 1, unless the context otherwise requires, the following terms shall have the following meanings, respectively:
|
(a)
|
"Act" means the Business Corporations Act (Ontario) and the regulations enacted pursuant to the Business Corporations Act (Ontario), and any statute and regulations that may be substituted for any of them, as amended from time to time;
|
|
(b)
|
"Articles" means the articles (as that term is defined in the Act) of the Corporation;
|
|
(c)
|
"auditor" means the auditor of the Corporation;
|
|
(d)
|
"Board" means the board of directors of the Corporation;
|
|
(e)
|
"By-law" means a by-law of the Corporation;
|
|
(f)
|
"Corporation" means New FSV Corporation (to be renamed "FirstService Corporation") and any amalgamated corporation successor thereto resulting from the amalgamation of the Corporation or its successor with one or more other corporations, which amalgamated corporation successor adopts this By-Law No. 1 or which is otherwise required to have By-laws the same as the Corporation or its successor;
|
|
(g)
|
"Director" means a member of the Board;
|
|
(h)
|
"meeting of shareholders" means an annual meeting of shareholders of the Corporation, or a special meeting of shareholders of the Corporation, or both, and includes a meeting of any class or series of any class of shareholders of the Corporation;
|
|
(i)
|
"non-business day" means Saturday, Sunday and any other day that is a holiday as defined in the Interpretation Act (Ontario);
|
|
(j)
|
"Officer" means an officer of the Corporation as defined in the Act, and reference to any specific Officer is to the individual holding that office of the Corporation;
|
|
(k)
|
"person" includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in the capacity of trustee, executor, administrator, or other legal representative;
|
|
(l)
|
"proxyholder" means an individual holding a valid proxy for a shareholder;
|
|
(m)
|
"shareholder" means a shareholder of the Corporation;
|
|
(n)
|
"telephonic or electronic means" means telephone calls or messages, facsimile messages, electronic mail, transmission of data or information through automated touch-tone telephone systems, transmission of data or information through computer networks, any other similar means or any other means prescribed by the Act; and
|
|
(o)
|
"voting person" means, in respect of a meeting of shareholders, an individual who is either a shareholder entitled to vote at that meeting, a duly authorized representative of a shareholder entitled to vote at that meeting or a proxyholder entitled to vote at that meeting.
|
1.2 Terms Defined in the Act. Terms used herein that are defined in the Act, and not defined herein, shall have the meanings given to those terms in the Act.
1.3 Number, Gender and Headings. In this By-Law No. 1, words in the singular include the plural and vice-versa and words in one gender include all genders. The insertion of headings in this By-Law No. 1 and its division into articles, sections and other subdivisions are for convenience of reference only, and shall not affect the interpretation of this By-Law No. 1.
1.4 By-Law Subordinate to Other Documents. This By-Law No. 1 is subordinate to, and should be read in conjunction with, the Act, the Articles and any unanimous shareholder agreement of the Corporation.
1.5 Computation of Time. The computation of time and any period of days shall be determined in accordance with the Act.
ARTICLE 2
GENERAL BUSINESS
2.1 Registered Office. The registered office of the Corporation shall be in the municipality or geographical township within Ontario specified in the Articles or in a special resolution and at such location therein as the Board may from time to time determine.
2.2 Seal. The Corporation may have a seal which shall be adopted, and may be changed, by the Board.
2.3 Financial Year. Until changed by the Board, the financial year of the Corporation shall end on the 31st day of December in each year.
2.4 Execution of Instruments. Deeds, transfers, assignments, contracts, obligations, certificates and other instruments shall be signed on behalf of the Corporation by any one Director or Officer. In addition, the Board may 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. The signature of any individual authorized to sign on behalf of the Corporation may, if specifically authorized by resolution of the Board, be written, printed, stamped, engraved, lithographed or otherwise mechanically reproduced or may be an electronic signature. Anything so signed shall be as valid as if it had been signed manually, even if that individual has ceased to hold office when anything so signed is issued or delivered, until revoked by resolution of the Board. Any signing officer may certify a copy of any instrument, resolution, By-law or other document of the Corporation to be a true copy thereof. Any deed, transfer, assignment, contract, obligation, certificate and other instrument signed on behalf of the Corporation may, but need not, have the corporate seal of the Corporation applied, if there is one.
2.5 Voting Rights in Other Bodies Corporate. Any Director or Officer may execute and deliver proxies and take any other steps as in the Director's or Officer's opinion may be necessary or desirable to permit the exercise on behalf of the Corporation of voting rights attaching to any securities held by the Corporation. 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 attaching to any securities held by the Corporation may or shall be exercised.
2.6 Banking Arrangements. The banking business of the Corporation, or any part thereof, shall be transacted with such bank, trust company or other firm, institution or body corporate as the Board may designate, appoint or authorize from time to time and all such banking business, or any part thereof, shall be transacted on the Corporation's behalf by such one or more Officers or other persons as the Board may designate, direct or authorize from time to time and to the extent thereby provided.
2.7 Borrowing. Without limit to the powers of the Board as provided in the Act, the Board may from time to time on behalf of the Corporation:
|
(a)
|
borrow money upon the credit of the Corporation;
|
|
(b)
|
issue, reissue, sell or pledge debt obligations of the Corporation;
|
|
(c)
|
to the extent permitted by the Act, give, directly or indirectly, financial assistance to any person by means of a loan, a guarantee or otherwise to secure the performance of an obligation; 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.
|
2.8 Borrowing Delegation. Subject to the Act, the Board may from time to time delegate to a Director, a committee of Directors or an Officer or such other person or persons so designated by the Board all or any of the powers conferred on the Board by Section 2.7 or by the Act to such extent and in such manner as the Board shall determine at the time of each such delegation.
2.9 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 such 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:
|
(a)
|
the further division of the business and operations of any such division into sub-units and the consolidation of the business and operations of any such division and sub-units;
|
|
(b)
|
the designation of any such division or sub-unit by, and the carrying on of the business and operations of any such 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)
|
the appointment of officers for any such division or sub-unit, the determination of their powers and duties, and the removal of any of such officers so appointed, provided that any such officers shall not, as such, be Officers.
|
ARTICLE 3
DIRECTORS
3.1 Duties of Directors. Subject to the Act, the Board shall manage or supervise the management of the business and affairs of the Corporation.
3.2 Number of Directors. The number of Directors shall be not fewer than the minimum number and not more than the maximum number established by the Articles, and the number of directors within such parameters shall be determined from time to time in accordance with the provisions of the Act, provided, however, that for so long as the Corporation is an offering corporation, the Board shall consist of not fewer than three individuals. The Board is empowered to determine by resolution the number of Directors within the minimum and maximum number of directors established by the Articles until a special resolution stipulating otherwise is approved.
3.3 Qualifications. No person shall be a Director if the person: (a) is not an individual; (b) is less than eighteen years of age; (c) has the status of bankrupt; or (d) has been found under the Substitute Decisions Act, 1992 or under the Mental Health Act to be incapable of managing property or who has been found to be incapable by a court in Canada or elsewhere. Except as permitted by the Act, at least twenty-five percent (25%) of the Directors shall be resident Canadians, or if there are fewer than four Directors, at least one Director shall be a resident Canadian. A Director need not be a shareholder. If the Corporation is an offering corporation, at least one-third of the Directors shall not be Officers or employees of the Corporation or any of its affiliates.
3.4 Quorum. Subject to the Act and Section 3.17, a quorum for the transaction of business at a meeting of the Board shall be two-fifths of the number of Directors so fixed or determined at that time (or, if that number is a fraction, the next larger whole number), provided that if the Corporation has fewer than three Directors, all of the Directors must be present at a meeting of the Board to constitute a quorum.
3.5 Election and Term. Directors shall be elected by the shareholders at an annual meeting of shareholders for a term expiring at the close of the first annual meeting of shareholders following the election or, if elected for an expressly stated term, for a term expiring not later than the close of the third annual meeting of shareholders following the election. If qualified, a Director shall be eligible for re-election at such next ensuing annual meeting of shareholders. Subject to the Act, the number of Directors to be elected at any such meeting shall be that number most recently determined in accordance with Section 3.2. The election need not be by ballot unless a ballot is demanded by any shareholder or required by the chair. If an election of Directors is not held at an annual meeting of shareholders at which such election is required, the incumbent Directors shall continue in office until their successors are elected.
3.6 Resignation, Removal and Vacation of Office. Subject to the Act, a Director may resign by delivering or sending his resignation in writing to the Corporation and such resignation shall be effective when it is received by the Corporation or at such time as may be specified in the resignation, whichever is later. Subject to the Act, the shareholders of the Corporation entitled to elect a Director may, by ordinary resolution at an annual or special meeting of the shareholders of the Corporation, remove such Director and may at the same meeting fill the vacancy created by such removal, failing which the vacancy may be filled by the remaining directors if a quorum of the directors remains in office. Subject to the Act, a Director ceases to hold office on death, on removal from office by the shareholders, on ceasing to be qualified for election as a director, on receipt of a written resignation by the Corporation, or, if a time is specified in such resignation, at the time so specified, whichever is later.
3.7 Vacancies. Subject to the Act, a quorum of directors (whether or not the majority of such quorum are resident Canadians) may fill a vacancy among the Directors, except a vacancy resulting from:
|
(a)
|
an increase in the number of Directors otherwise than pursuant to a special resolution empowering the Board to fix the number of Directors within a range set out in the Articles;
|
|
(b)
|
an increase in the maximum number of Directors set out in the Articles; or
|
|
(c)
|
a failure to elect the number of Directors required to be elected at any meeting of shareholders.
|
3.8 Regular Board Meetings. Regular meetings of the Board shall be held at such times and places as may be fixed by the Board from time to time. A copy of any resolution of the Board fixing the time and place of such regular meetings shall be sent to each Director 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.
3.9 Special Board Meetings. A meeting of the Board, other than a regular meeting referred to in Section 3.8 hereof, may be held at any time upon call by the Chair of the Board, the Chief Executive Officer of the Corporation, the Chief Financial Officer of the Corporation, the Secretary of the Corporation or a majority of the Directors then in office.
3.10 Meeting by Communications Facilities. If all the Directors present at or participating in the meeting consent, a meeting of the Board or of a committee of the Board may be held by means of such telephone, electronic or other communications 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 shall be deemed to be present at the meeting. Any such consent shall be effective whether given before or after the meeting to which it relates and may be given with respect to all meetings of the Board and of committees of the Board. Subject to the Act, if a majority of the directors participating in a meeting held under this section are then in Canada, the meeting shall be deemed to have been held in Canada.
3.11 Place of meetings. A meeting of the Board may be held at any place within or outside Ontario, and no such meeting need be held at a place within Canada.
3.12 Notice. Subject to Section 3.8, written notice or notice by telephonic or electronic means of the time and place of each meeting of the Board shall be given to each Director at least 48 hours before the time when the meeting is to be held. An individual need not be given notice of the meeting at which that individual is appointed by the other Directors to fill a vacancy on the Board, if that individual is present at that meeting. A notice of meeting of the Board need not specify the purpose of or the business to be transacted at the meeting except as may be required by the Act. The accidental failure to give notice of a meeting of the Board to a Director or any error in such notice not affecting the substance thereof shall not invalidate any action at the meeting. A Director may in any manner and at any time waive notice of a meeting of the Board and attendance of a Director at a meeting of the Board 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.
3.13 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.
3.14 Chair and Secretary. The Chair of the Board or, if he or she is not present, the Vice-Chair of the Board or, if he or she is not present, the Chief Executive Officer of the Corporation or, in the absence of any of them, a Director designated by the Board shall act as chair at each meeting of the Board. The Secretary of the Corporation shall act as secretary at any meeting of the Board and, if the Secretary of the Corporation is absent, the chair of the meeting shall appoint a person, who need not be a Director, to act as secretary of the meeting.
3.15 Director Voting. Each Director present at a meeting of the Board shall have one (1) vote on each motion arising. Motions arising at meetings of the Board shall be decided by a majority vote. In the event of an equality of votes on any question at a meeting of the Board, the chair of the meeting shall not be entitled to a second or casting vote.
3.16 Director Compensation. Each Director shall receive such reasonable compensation and/or reimbursement of expenses, if any, as may be authorized by the Board from time to time in relation to his or her services as a Director. Any Director may be employed by or provide services to the Corporation otherwise than as a Director. Such a Director may receive compensation for such employment or other services in addition to any compensation paid to such Director for his or her services as a Director.
3.17 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 transaction or proposed material contract or transaction with the Corporation shall disclose to the Corporation the nature and extent of that interest at the time and in the manner provided by the Act. Such a Director shall not attend any part of a meeting of the Board during which the contract or transaction is discussed and shall not vote on any resolution to approve the same except as permitted by the Act. If no quorum exists for the purpose of voting on such a resolution only because a Director is not permitted to be present at the meeting, the remaining Directors shall be deemed to constitute a quorum for the purposes of voting on the resolution.
ARTICLE 4
COMMITTEES
4.1 Audit Committee. The Board shall appoint from among their number an audit committee whose composition and function will conform with applicable law. The audit committee shall have the functions provided in the Act.
4.2 Other Committees. The Board may designate and appoint committees of the Board in an addition to an audit committee, including an executive compensation committee and a nominating and corporate governance committee, and, subject to the limitations prescribed by the Act, may delegate to such committees any of the powers of the Board.
4.3 Procedure. Subject to the Act and unless otherwise determined by the Board, each committee of the Board shall have the power to fix its quorum at not less than a majority of its members, to elect its chair and to regulate its procedure.
4.4 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 the 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 Ontario and, subject to the provisions of Section 3.10 which shall be applicable mutatis mutandis, may be held by means of telephone, electronic or other communications equipment.
ARTICLE 5
OFFICERS
5.1 Appointment of Officers. The Board may from time to time appoint a chair of the Board, a vice-chair of the Board, a president, one or more vice-presidents, a chief executive officer, a chief financial officer, a chief operating officer, 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 (and to which officer titles may be added words indicating seniority and/or function). The Board may specify the duties of such Officers 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. Except for a chair of the Board, an Officer need not be a Director and any person may hold more than one office.
5.2 Agents and Attorneys. The Board shall have the power from time to time to appoint agents or attorneys for the Corporation in or outside of Ontario with such powers of management or otherwise (including the power to sub-delegate) as the Board may determine.
5.3 Conflict of Interest. An Officer shall disclose an interest in any material contract or transaction or proposed material contract or transaction with the Corporation in accordance with Section 3.17.
ARTICLE 6
PROTECTION OF DIRECTORS AND OFFICERS
6.1 Limitation of Liability. No Director or Officer shall be liable for:
|
(a)
|
the acts, receipts, neglects or defaults of any other Director, Officer, employee or agent of the Corporation or any other person;
|
|
(b)
|
any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired by, 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 loaned out or invested;
|
|
(c)
|
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 any moneys, securities or other assets belonging to the Corporation shall be lodged or deposited;
|
|
(d)
|
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; and
|
|
(e)
|
any other loss, damage or misfortune whatever which may happen in the execution of the duties of the Director's or Officer's respective office or in relation thereto;
|
unless the same shall happen by or through the Director's or Officer's failure to exercise the powers and to discharge the duties of the Director's or Officer's office honestly and 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 relieve such Director or Officer from liability for a breach of the Act.
6.2 Indemnity of Directors and Officers.
|
(a)
|
The Corporation shall indemnify a Director or Officer of the Corporation, a former Director or Officer of the Corporation or another individual who acts or acted at the Corporation's request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by such person in respect of any civil, criminal, administrative or investigative action or other proceeding in which the individual is involved because of that association with the Corporation or other entity.
|
|
(b)
|
The Corporation shall advance monies to such individual for the costs, charges and expenses of a proceeding referred to in subsection 6.2(a) provided that such individual agrees in advance, in writing, to repay the monies if the individual does not fulfill the conditions of subsection 6.2(c).
|
|
(c)
|
The Corporation may not indemnify an individual under subsection 6.2(a) unless the individual:
|
| |
(i)
|
acted honestly and in good faith with a view to the best interests of the Corporation or other entity for which the individual acted as a director or officer or in a similar capacity at the Corporation's request, as the case may be; and
|
| |
(ii)
|
in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful.
|
|
(d)
|
To the extent required by the Act or applicable law, the Corporation shall also seek the approval of a court to indemnify an individual referred to in subsection 6.2(a), or advance monies under subsection 6.2(b) in respect of an action by or on behalf of the Corporation or other entity to procure a judgment in its favour, to which such individual is made a party because of the individual's association with the Corporation or other entity as described in subsection 6.2(a), against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfills the conditions set out in subsection 6.2(c).
|
6.3 Indemnification of Others. Subject to the Act, the Corporation may indemnify its employees and agents on the same basis as that upon which the persons referred to in Section 6.2 are indemnified.
6.4 Insurance. The Corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection 6.2(a) against any liability incurred by the individual: (a) in the individual's capacity as a Director or Officer of the Corporation; or (b) in the individual's capacity as a director or officer, or similar capacity, of another entity, if the individual acts or acted in that capacity at the Corporation's request.
6.5 Indemnities Not Exclusive. Each of the provisions of this Article 6 shall be in addition to and not in substitution for or derogation from any rights to which any person referred to herein may otherwise be entitled.
ARTICLE 7
MEETINGS OF SHAREHOLDERS
7.1 Annual and Special Meetings. The Board shall call an annual meeting of shareholders not later than 18 months after the Corporation comes into existence and subsequently not later than 15 months after holding the last preceding annual meeting. The Board may at any time call a special meeting of shareholders.
7.2 Place of meetings. Subject to the Articles, a meeting of shareholders of the Corporation shall be held at such place in or outside Ontario as the Board determines or, in the absence of such a determination, at the place where the registered office of the Corporation is located.
7.3 Notice of meetings. Notice of the time and place of a meeting of shareholders shall be sent not less than 21 days nor more than 50 days before the meeting to: (a) each shareholder entitled to vote at the meeting; (b) each Director; and (c) the auditor. 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.
7.4 Meeting by Telephonic or Electronic Means. A meeting of the shareholders may be held by telephonic or electronic means and a shareholder who, through those means, votes at the meeting or establishes a communications link to the meeting shall be deemed for the purposes of the Act to be present at the meeting. The Board may establish procedures regarding the holding of meetings of the shareholders pursuant to this Section 7.4.
7.5 Chair and Secretary. The Chair of the Board or, if he or she is not present, the Vice-Chair of the Board or, if he or she is not present, a Director designated by the Board or, in the absence of any of them, the Chief Executive Officer of the Corporation shall act as chair at each meeting of shareholders. If none of the foregoing persons are present within 15 minutes after the time appointed for holding the meeting of shareholders, the shareholders present and entitled to vote shall choose a chair from amongst themselves. The Secretary of the Corporation, or, in his or her absence, such other person as the chair of the meeting of shareholders may appoint, shall act as secretary of a meeting of shareholders.
7.6 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 prescribe.
7.7 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 auditors 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 chair of the meeting or with the consent of the meeting.
7.8 Quorum. A quorum for any meeting of shareholders shall be two or more individuals holding, or representing by proxy, not less than 5% (five percent) of the votes attached to all outstanding shares of the Corporation entitled to be voted at the meeting of shareholders, provided that if the Corporation has only one shareholder, the shareholder present in person or represented by proxy shall be a quorum for a meeting of shareholders. In the event that such quorum is not present at the appointed place on the date for which the meeting of shareholders is called within 30 minutes after the time fixed for the holding of such meeting of shareholders, the meeting, if convened at the requisition of the shareholders, shall be dissolved, but in any other case shall stand adjourned to such day being not less than 10 days later and to such place and at such time as may be determined by the chair of the meeting of shareholders. If at such adjourned meeting of shareholders a quorum, as determined in accordance with the foregoing provisions of this Section 7.8, is not present, the shareholders present either personally or represented by proxy shall constitute a quorum and any business which could have been brought before or dealt with at the original meeting of shareholders in accordance with the notice of meeting calling same may be brought before or dealt with at such adjourned meeting of shareholders. A quorum need not be present throughout the meeting provided that a quorum is present at the opening of the meeting.
7.9 Shareholder Representatives. A body corporate or association that is a shareholder of the Corporation may be represented at a meeting of shareholders by any individual authorized by a resolution of its directors or governing body and such individual may exercise on behalf of the body corporate or association which such individual represents all the powers it could exercise if it were an individual shareholder.
7.10 Time for Deposit of Proxies. The Board may by resolution fix a time not exceeding 48 hours, excluding non-business days, 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. A proxy may be used at the meeting 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 is specified in such notice, it shall have been received by the secretary of the Corporation or by the chair of the meeting or adjournment thereof prior to the time of voting.
7.11 Votes to Govern. At any meeting of shareholders, every question shall, unless otherwise required by the Articles, By-laws or applicable law, be determined by a majority of votes cast on the question. In case of an equality of votes either upon a show of hands or upon a ballot, the chair of the meeting shall not be entitled to a second or casting vote.
7.12 Voting. Voting at any meeting of shareholders shall be by a show of hands except where, either before or after a show of hands, a ballot is required by the chair of the meeting or is requested by any voting person or as otherwise required by law. On a show of hands, each voting person shall have one vote. On a ballot, each voting person shall have that number of votes provided for by the Act or the Articles for each share entitled to be voted by such voting person, and the result of the ballot so taken shall be the decision of the shareholders upon the said question. Any ballot shall be taken in such manner as the chair of the meeting directs, and 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, a prior vote by show of hands has no effect. Whenever a vote by any means other than by ballot is taken, a declaration by the chair 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.
7.13 Electronic Voting.
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(a)
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Any person entitled to attend and vote at a meeting of shareholders may vote at the meeting in person or by proxy and, subject to any determinations made from time to time by the Board, may appoint a proxy by any method permitted by law, including over the Internet, by the input of data using telephone facilities or by reproduction using facsimile or electronic facilities.
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(b)
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To the extent permitted by the By-laws or the Articles or by the Act or other laws governing the Corporation, the Board may establish, in connection with any meeting of shareholders, procedures regarding voting at the meeting by means of the Internet, telephonic, electronic or other communication facilities, and make available such communication facilities consistent with those procedures. The Board may determine from time to time that the voting at any specific meeting of shareholders shall be held entirely by such means.
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7.14 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 by proxy constitutes a meeting.
ARTICLE 8
SECURITIES
8.1 Options or Rights. Subject to the Act and the Articles, the Board may from time to time issue or grant options to purchase or rights to acquire 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.
8.2 Uncertificated Securities. The Board may provide by resolution that any or all classes or series of shares issued by the Corporation shall be uncertificated securities, provided that such resolution shall not apply to securities represented by a certificate until such certificate has been surrendered to the Corporation.
8.3 Securities Records. The Corporation shall prepare and maintain, at its registered office or at any other place in Ontario designated by the Board, a securities register in which it records the certificated securities and uncertificated securities issued by it, showing with respect to each class or series of such securities:
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(a)
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the names, alphabetically arranged, of persons who:
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(i)
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are or have been within six years registered as shareholders of the Corporation, the address including the street and number, if any, of every such person while a holder, and the number and class of shares registered in the name of such holder,
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(ii)
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are or have been within six years registered as holders of debt obligations of the Corporation, the address including the street and number, if any, of every such person while a holder, and the class or series and principal amount of the debt obligations registered in the name of such holder, or
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(iii)
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are or have been within six years registered as holders of warrants of the Corporation, other than warrants exercisable within one year from the date of issue, the address including the street and number, if any, of every such person while a registered holder, and the class or series and number of warrants registered in the name of such holder; and
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(b)
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the date and particulars of the issue of each security of the Corporation.
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8.4 Transfer Agents and Registrars. The Board may from time to time appoint a registrar to maintain the securities register and a transfer agent to maintain the register of transfers and may also appoint one or more branch registrars to maintain branch securities registers and one or more branch transfer agents to maintain branch registers of transfers. One person may be appointed both registrar and transfer agent and the Board may at any time terminate any such appointment.
8.5 Non-recognition of Trusts. Subject to the Act, the Corporation may treat the registered owner of a share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payments in respect thereof and otherwise to exercise all the rights and powers of an owner of a share.
8.6 Security Instruments. Every holder of one or more certificated securities of the Corporation shall be entitled, at the holder's option, to a security certificate in respect of the securities held by that person or to a non-transferable written acknowledgement of that person's right to obtain a security certificate, stating the number and class or series of shares held by that person as shown on the securities register. Every holder of an uncertificated security of the Corporation shall be entitled to receive, within a reasonable time after the issuance or transfer of such uncertificated security, a written notice containing the information required to be stated on a share certificate in accordance with the Act. Security certificates and acknowledgements of a shareholder's right to a security certificate, respectively, shall be in such form as the Board may from time to time approve. Unless otherwise determined by the Board, security certificates need not be under corporate seal and shall be signed by at least one of the following persons: (a) any Director or Officer of the Corporation; or (b) a registrar, transfer agent or branch transfer agent of the Corporation or an individual on their behalf. Signatures may be printed or mechanically reproduced in facsimile upon security certificates and every such facsimile shall for all purposes be deemed to be the signature of the person whose signature it reproduces and shall be binding upon the Corporation. If a security certificate contains a printed or mechanically reproduced signature of a person, the Corporation may issue the security certificate, notwithstanding that the person has ceased to be a Director or an Officer of the Corporation, and the security certificate is as valid as if the person were a Director or an Officer at the date of its issue.
8.7 Replacement of Security Certificates. Subject to the Act, the Board or any Officer or agent designated by the Board may in the discretion of the Board or that person direct the issue of a new security certificate in lieu of and upon cancellation of a security certificate for a certificated security claimed to have been lost, apparently destroyed or wrongfully taken on payment of such fee, prescribed by or in accordance with the Act, and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the Board or that person may from time to time prescribe, whether generally or in any particular case.
8.8 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.
8.9 Deceased Shareholder. 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 payment of any dividends thereon except upon production of all such documents as may be required by applicable law and upon compliance with the reasonable requirements of the Corporation and its transfer agent.
ARTICLE 9
DIVIDENDS AND RIGHTS
9.1 Dividends. Subject to the Act and the Articles, 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 or options or rights to acquire fully paid shares of the Corporation.
9.2 Dividend Cheques. A dividend payable in cash may be paid by cheque drawn on the Corporation's bankers or one of them 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 or sent by courier to such registered holder at the address recorded in the Corporation's securities register, unless in each case 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, if more than one address is recorded in the Corporation's security register in respect of such joint holding, the cheque shall be mailed to the first address so appearing. 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.
9.3 Non-receipt or Loss of Cheques. In the event of non-receipt or loss of any dividend cheque by the person to whom it is sent, 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.
9.4 Unclaimed Dividends. Any dividend unclaimed after a period of two years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
ARTICLE 10
NOTICES
10.1 Method of Giving Notices. Any notice, communication or document (each, a "notice") to be given or sent pursuant to the Act, 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 or sent if given or sent by prepaid mail, prepaid transmitted, recorded, or electronic communication capable of providing a written copy of such notice, or delivered personally to such person's latest address as shown on the securities register of the Corporation or, in the case of a Director, if more current, the address as shown in the most recent notice filed under the Corporations Information Act (Ontario). A notice shall be deemed to have been received on the date when it is delivered personally, or on the fifth day after mailing, or on the date of dispatch of a transmitted or recorded electronic communication. The secretary of the Corporation 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 the secretary to be reliable. A notice or document required or permitted to be sent under this Section 10.1 may be sent by electronic means in accordance with the Electronic Commerce Act, 2000 (Ontario) or by any other method permitted pursuant to the Act.
10.2 Notice to Joint Shareholders. If two or more persons are registered as joint holders of any share of the Corporation, any notice shall be addressed to all of such joint holders but notice to one of such persons shall be sufficient notice to all of them.
10.3 Computation of Time. In computing the date when notice must be sent under any provision requiring a specified period of days' notice of any meeting or other event, the period of days shall commence on the day following the sending of such notice and shall terminate on the day preceding the date of the meeting or other event provided that the last day of the period shall not be a non-business day.
10.4 Undelivered Notices. If any notice given or sent to a shareholder pursuant to Section 10.1 is returned on three consecutive occasions because the person cannot be found, the Corporation shall not be required to give or send any further notice to such shareholder until the Corporation is informed in writing of the new address for such person.
10.5 Omissions and Errors. The accidental omission to give or send 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 based thereon.
10.6 Waiver of Notice. Any shareholder (or shareholder's duly appointed proxyholder), Director, Officer, auditor or member of a committee of the Board may at any time waive the giving or sending of any notice, or waive or abridge the time for any notice, required to be given to that person under any provision of the Act, the Articles, the By-laws or otherwise and such waiver or abridgement shall cure any default in the giving or sending or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing or given by electronic signature and may be sent by electronic means in accordance with the Electronic Commerce Act, 2000 (Ontario) except for the waiver of notice of a meeting of shareholders or of the Board, which may be given in any manner. Attendance of a Director at a meeting of directors or of a shareholder or any other person entitled to attend a meeting of shareholders is a waiver of notice of the meeting except where such Director, shareholder or other person, as the case may be, 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.
10.7 Invalidity. The invalidity or unenforceability, if any, of any provision of this By-law shall not affect the validity or enforceability of the remaining provisions of this By-law.
10.8 Persons Entitled by Death or Operation of Law. Every person who, by operation of law, transfer, death of a securityholder or any other means whatsoever, becomes entitled to any security, is bound by every notice in respect of such security which has been given to the securityholder from whom the person derives title to such security. Such notices may have been given before or after the happening of the event upon which they became entitled to the security.
ARTICLE 11
MISCELLANEOUS
11.1 Former By-Laws May be Repealed. The Board may repeal one or more By-laws by passing a By-law that contains provisions to that effect.
11.2 Effect of Repeal of By-Laws. The repeal of any By-law in whole or part shall not in any way affect the validity of any act done or right, privilege, obligation or liability acquired or incurred thereunder prior to such repeal. All Directors, Officers and other persons acting under any By-law repealed in whole or part shall continue to act as if elected or appointed under the provisions of this By-Law No. 1.
11.3 Effective Date. This By-Law No. 1 comes into force when made by the Board in accordance with the Act.
* * *
THE FOREGOING BY-LAW NO. 1 was approved by the Board in accordance with the Act on the 6th day of October, 2014.
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"John B. Friedrichsen"
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John B. Friedrichsen |
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Director and Secretary |
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EXHIBIT "V"
TO PLAN OF ARRANGEMENT
TERMS OF NEW FSV SPECIAL SHARES
7.00 PREFERENCE SHARES, SERIES SPECIAL
The first series of the Preference Shares of the Corporation shall consist of an unlimited number of Preference Shares, which shares shall be designated as "Preference Shares, Series Special" (collectively, the "New FSV Special Shares") and which, in addition to the rights, privileges, restrictions and conditions attached to the Preference Shares of the Corporation as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
7.01 Dividends.
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(1)
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The holders of New FSV Special Shares shall be entitled to receive, and the Corporation shall pay thereon, if, as and when declared by the Board of Directors of Corporation out of moneys of the Corporation properly applicable to the payment of dividends, non-cumulative dividends.
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(2)
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Except with the consent in writing of the holders of all of the New FSV Special Shares, no dividend shall at any time be declared and paid on, or declared and set apart for payment on, the Subordinate Voting Shares or the Multiple Voting Shares unless, after the payment of such dividend, the realizable value of the assets of the Corporation would not be less than the New FSV Special Share Redemption Price (as hereinafter defined).
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7.02 Redemption. The Corporation may, to the extent permitted by applicable law, redeem at any time the whole, or from time to time any part, of the New FSV Special Shares then outstanding on payment (which may, at the discretion of the Corporation, be made through the issuance of a promissory note or promissory notes) of a redemption price per New FSV Special Share equal to the aggregate of the following two amounts:
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(1)
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that amount which is equal to the quotient obtained when:
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(a)
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the aggregate fair market value of the Distribution Property (as hereinafter defined) at the time of its transfer to the Corporation as described in the Plan of Arrangement (as hereinafter defined);
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is divided by:
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(b)
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the number of New FSV Special Shares issued in connection with the Distribution Property Exchange (as hereinafter defined);
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plus:
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(2)
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that amount which is equal to all declared and unpaid dividends on such New FSV Special Share;
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the whole constituting and being herein referred to in these provisions as the "New FSV Special Share Redemption Price", and the aggregate amount required to redeem all of the New FSV Special Shares then outstanding being the "New FSV Special Shares Redemption Amount". For the purposes of this Section 7.00:
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(3)
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"Distribution Property" has the meaning attributed to such term in the Plan of Arrangement;
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(4)
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"Distribution Property Exchange" has the meaning attributed to such term in the Plan of Arrangement; and
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(5)
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"Plan of Arrangement" means the Plan of Arrangement to which this Exhibit "V" is attached.
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7.03 Retraction. Any holder of New FSV Special Shares shall be entitled to require the Corporation to redeem, subject to the requirements of applicable law, at any time all of the New FSV Special Shares registered in the name of such holder on the books of the Corporation at the redemption price per share equal to the New FSV Special Share Redemption Price by tendering to the Corporation at the registered office of the Corporation a certificate or certificates representing all of the New FSV Special Shares held by such holder together with a notice in writing specifying: (1) that the holder desires to have the New FSV Special Shares represented by such certificate or certificates redeemed by the Corporation; and (2) the business day (the "Retraction Date") on which the holder desires to have the Corporation redeem such New FSV Special Shares. Following receipt of such share certificate or certificates and written notice, the Corporation will, on the Retraction Date (or as soon as practicable thereafter), redeem such New FSV Special Shares by paying to the holder the New FSV Special Share Redemption Price for each New FSV Special Share so redeemed.
7.04 Dissolution, Liquidation or Winding-up. In the event of the dissolution, liquidation or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of assets of the Corporation among its shareholders for the purpose of winding-up its affairs, the holders of New FSV Special Shares shall be entitled to receive from the assets of the Corporation an amount equal to the New FSV Special Shares Redemption Amount before any amount shall be paid or any assets of the Corporation distributed upon any liquidation, dissolution or winding-up of the Corporation to the holders of the Subordinate Voting Shares or the Multiple Voting Shares. After payment to the holders of New FSV Special Shares of the amount so payable to them, such holders shall not be entitled to share in any further distribution of the assets of the Corporation.
7.05 Cancellation. Any New FSV Special Share that is redeemed by the Corporation pursuant to this Section 7.00 will for all purposes be considered to have been redeemed on, and will be cancelled concurrently with, the payment of the New FSV Special Share Redemption Price by the Corporation to or for the benefit of the holder thereof.
7.06 Specified Amount for Part VI.1 of the Income Tax Act (Canada). For the purposes of subsection 191(4) of the Income Tax Act (Canada), [$►]3 is hereby specified in respect of each New FSV Special Share.
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3
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Effective Date value to be inserted prior to filing Certificate of Arrangement.
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