Articles of Amendment of SunOpta Inc., setting forth the terms of its Special Shares, Series 1
Exhibit 4.2
SCHEDULE
The Articles of the Corporation are amended as follows:
(a) by increasing the authorized capital of the Corporation by the creation of an unlimited number of Special Shares, Series 1;
(b) by providing that, after giving effect to the foregoing, the authorized capital of the Corporation shall consist of:
(i) an unlimited number of common shares;
(ii) an unlimited number of special shares issuable in series; and
(iii) an unlimited number of Special Shares, Series 1;
(c) by providing that the Special Shares, Series 1 shall have attached thereto the rights, privileges, restrictions and conditions set out in Schedule A attached hereto.
Schedule A
SPECIAL SHARES, SERIES 1 PROVISIONS
The first series of special shares shall consist of an unlimited number of shares designated as the Special Shares, Series 1. The rights, privileges, restrictions and conditions attaching to the Special Shares, Series 1 are as follows:
1. Definitions
Where used in these Special Shares, Series 1 Provisions, the following terms shall, unless there is something in the context otherwise inconsistent therewith, have the meanings set out below and grammatical variations of such terms shall have corresponding meanings:
| (a) | "Act" means the Canada Business Corporations Act ; | |
| (b) | "Affiliate" means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. For the purposes of this definition, "control" when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of Person, whether through the ownership of voting securities, by contract, or otherwise; | |
| (c) | "Beneficial Ownership Exchange Cap" has the meaning given to that term in the terms of the Preferred Shares; | |
| (d) | "Common Shareholders" means the holders from time to time of Common Shares; | |
| (e) | "Common Shares" means the common shares in the capital of the Corporation; | |
| (f) | "Holders" means the Investors and their Affiliates; | |
| (g) | "Investors" means collectively, Oaktree Organics, L.P. and Oaktree Huntington Investment Fund II, L.P.; | |
| (h) | "Issuer" means SunOpta Foods, Inc., a corporation existing under the laws of the State of Delaware; | |
| (i) | "person" includes an individual, sole proprietorship, corporation, body corporate, incorporated or unincorporated association, syndicate or organization, partnership, limited partnership, limited liability company, unlimited liability company, joint venture, joint stock company, trust, natural person in his or her capacity as trustee, executor, administrator or other legal representative, a governmental entity or other entity, whether or not having legal status; | |
| (j) | "Preferred Shares" means shares of Series A Preferred Stock issued by the Issuer and beneficially owned or controlled by the Holders; |
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| (k) | "Redemption Amount" means the sum of US $0.00001 per Special Voting Share; | |
| (l) | "Shareholder Approval" means the approval of the Common Shareholders at a Meeting to remove the Beneficial Ownership Exchange Cap and the Voting Cap and to waive the application of the Shareholder Rights Plan to the acquisition by the Holders of beneficial ownership of the Special Voting Shares and those Common Shares which are issuable or deliverable to the Holders upon exchange of the Preferred Shares; | |
| (m) | "Shareholder Rights Plan" means the amended and restated shareholder rights plan agreement dated as of November 10, 2015 between the Corporation and American Stock Transfer and Trust Company, LLC, as rights agent, as the same may be amended or replaced, from time to time; and | |
| (n) | "Voting Cap" has the meaning given to it in the Voting Trust Agreement dated October 7, 2016 between the Investors, the Corporation, the Issuer and the trustee named therein. |
2. Dividends
No dividends shall be payable to the holder of the Special Shares, Series 1.
3. Voting Rights
(a) Except as otherwise provided by law or herein, the holder of the Special Shares, Series 1 shall be entitled to attend all shareholder meetings of the Corporation which the Common Shareholders are entitled to attend (a "Meeting") and to vote on all matters submitted to a vote of the Common Shareholders at any such Meeting. Each Special Share, Series 1 shall entitle the holder thereof to one vote for each Special Share, Series 1 held. The Special Shares, Series 1 and the Common Shares shall vote together as a single class.
(b) The holder of the Special Shares, Series 1 shall be entitled to receive copies of all notices and other materials sent by the Corporation to its Common Shareholders relating to Meetings. All such notices and other materials shall be sent to the holder of the Special Shares, Series 1 concurrently with delivery to the Common Shareholders.
(c) Notwithstanding Section 3.1(a), the holder of the Special Shares, Series 1 shall not be entitled to vote on any matters submitted to a vote of the Common Shareholders at a Meeting:
| (i) | to obtain the Shareholder Approval; or | |
| (ii) | in respect of any amendment, waiver, renewal or replacement of the Shareholder Rights Plan. |
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4. Redemption
At such time as no Preferred Shares are held by the Holders, the Special Shares, Series 1 shall automatically be redeemed and cancelled, without any requirement for notice of such redemption to be given to the holder of the Special Shares, Series 1. The Corporation shall thereupon pay the Redemption Amount to such holder by cheque mailed to the address of such holder as shown on the records of the Corporation.
5. Liquidation
In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or any other return of capital or distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs, the holder of the Special Shares, Series 1 shall be entitled to receive the Redemption Amount from the assets and property of the Corporation before any amount shall be paid or any property or assets of the Corporation distributed to the holders of the Common Shares or shares of any other class ranking junior to the special shares.
