Law:Nordion and Theratronics Divestiture Authorization Act

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S.c. 1990, c. 4

Assented to 1990-01-30

An Act to authorize the divestiture of Nordion International Inc. and Theratronics International Limited

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Nordion and Theratronics Divestiture Authorization Act.


Interpretation And Application

Definitions

2. (1) In this Act,

“Minister”

« ministre »

“Minister” means such member of the Queen’s Privy Council for Canada as may be designated by the Governor in Council for the purposes of this Act;

“Nordion”

« Nordion »

“Nordion” means Nordion International Inc., a corporation incorporated under the Canada Business Corporations Act;

“Theratronics”

« Theratronics »

“Theratronics” means Theratronics International Limited, a corporation incorporated under the Canada Business Corporations Act.

Same meaning

(2) Unless a contrary intention appears, words and expressions used in this Act have the same meaning as in the Canada Business Corporations Act.

Operation of Canada Business Corporations Act

(3) In the event of any inconsistency between this Act and the Canada Business Corporations Act, or anything issued, made or established under that Act, this Act prevails to the extent of the inconsistency.

1990, c. 4, s. 2; 1994, c. 24, s. 34(F).

Binding on the Crown

3. This Act is binding on Her Majesty in right of Canada or a province.


Authorization Of Divestiture

Disposal of shares

4. (1) The Canada Development Investment Corporation is hereby authorized to sell or otherwise dispose of, on such terms and conditions as are approved by the Governor in Council, any or all shares of Nordion and Theratronics held by the Canada Development Investment Corporation, and may enter into any agreement or arrangement necessary or incidental thereto.

Provision not applicable

(2) Subsections 189(3) to (9) of the Canada Business Corporations Act and subsections 99(2) to (5) of the Financial Administration Act do not apply in respect of any sale or other disposal of shares authorized by subsection (1).

1990, c. 4, s. 4; 1994, c. 24, s. 34(F).


Nordion

Articles of amendment

5. (1) Nordion shall prepare articles of amendment in accordance with section 6 and submit them to the Minister for approval within four months after this section comes into force.

Submission to Director

(2) Forthwith after the Minister approves articles of amendment submitted pursuant to subsection (1), Nordion shall send the approved articles to the Director.

Presumption

(3) Articles of amendment sent to the Director pursuant to this section are, subject to this Act, deemed for all purposes to have been sent under section 177 of the Canada Business Corporations Act.

1990, c. 4, s. 5; 1994, c. 24, s. 34(F).

Mandatory provisions in articles of amendment

6. (1) The articles of amendment of Nordion shall contain provisions imposing constraints on the issue, transfer and ownership, including joint ownership, of voting shares of Nordion to prevent non-residents, together with the associates thereof, from holding, beneficially owning or controlling, directly or indirectly, otherwise than by way of security only, in the aggregate voting shares to which are attached more than twenty-five per cent of the votes that may ordinarily be cast to elect directors of Nordion.

Enforcement of constraint provisions

(2) The regulations made pursuant to subsection 174(6) of the Canada Business Corporations Act apply, with such modifications as the circumstances require, in respect of Nordion as if the constraints imposed pursuant to subsection (1) were a constraint referred to in paragraph 174(1)(a) of that Act.

Exceptions

(3) No provision imposing constraints pursuant to subsection (1) and no regulation referred to in subsection (2) apply in respect of voting shares of Nordion that are held

(a) by one or more underwriters solely for the purpose of distributing the shares to the public; or

(b) by any person providing centralized facilities for the clearing of trades in securities and acting in relation to trading in the shares solely as an intermediary in the payment of funds or the delivery of the shares, or both.

Associates

(4) For the purposes of this section, a person is an associate of a non-resident if

(a) one is a corporation of which the other is an officer or director;

(b) one is a corporation that is controlled by the other or by a group of persons of which the other is a member;

(c) one is a partnership of which the other is a partner;

(d) one is a trust of which the other is a trustee;

(e) both are corporations controlled by the same person;

(f) both are members of a voting trust that relates to voting shares of Nordion;

(g) both are parties to an agreement or arrangement, a purpose of which is to require them to act in concert with respect to their interests, direct or indirect, in Nordion; or

(h) both are at the same time associates, within the meaning of any of paragraphs (a) to (g), of the same non-resident.

Exceptions

(5) Notwithstanding subsection (4), for the purposes of this section,

(a) where a resident who, but for this paragraph, would be an associate of a non-resident submits to Nordion a statutory declaration stating that no voting shares of Nordion held or to be held by the resident are or will be, to the resident’s knowledge, held in the right of, for the use or benefit of or under the control of any non-resident of which, but for this paragraph, the resident would be an associate, that resident and that non-resident are not associates so long as the voting shares held by the resident are not held contrary to the statements made in the declaration;

(b) two corporations are not associates pursuant to paragraph (4)(h) by reason only that pursuant to paragraph (4)(a) each is an associate of the same individual; and

(c) where it appears from the central securities register of Nordion that any person holds, beneficially owns or controls voting shares to whichre attached not more than the lesser of two one-hundredths of one per cent of the votes that may ordinarily be cast to elect directors of Nordion and two thousand such votes, that person is not an associate of anyone else and no one else is an associate of that person.

Control

(6) For the purposes of this section,

(a) a body corporate is controlled by a person if

(i) securities of the body corporate to which are attached more than fifty per cent of the votes that may be cast to elect directors of the body corporate are held, otherwise than by way of security only, by or for the benefit of that person, and

(ii) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate; and

(b) a partnership or unincorporated organization is controlled by a person if an ownership interest therein representing more than fifty per cent of the assets of the partnership or organization is held, otherwise than by way of security only, by or for the benefit of that person.

Definitions

(7) In this section,

“corporation”

« société »

“corporation” includes a body corporate, partnership and unincorporated organization;

“non-resident”

« non-résident »

“non-resident” means

(a) an individual, other than a Canadian citizen, who is not ordinarily resident in Canada,

(b) a corporation incorporated, formed or otherwise organized outside Canada,

(c) a foreign government or an agency thereof,

(d) a corporation controlled by non-residents as defined in any of paragraphs (a) to (c),

(e) a trust

(i) established by a non-resident as defined in any of paragraphs (b) to (d), other than a trust for the administration of a pension fund for the benefit of individuals a majority of whom are residents, or

(ii) in which non-residents as defined in any of paragraphs (a) to (d) have more than fifty per cent of the beneficial interest, or

(f) a corporation that is controlled by a trust described in paragraph (e);

“person”

« personne »

“person” includes an individual, corporation, government or agency thereof, trustee, executor, administrator and other legal representative;

“resident”

« résident »

“resident” means an individual, corporation, government or agency thereof or trust that is not a non-resident;

“voting share”

« action avec droit de vote »

“voting share” means a share carrying vting rights under all circumstances or under some circumstances that have occurred and are continuing, and includes a security currently convertible into such a share and currently exercisable options and rights to acquire such a share or such a convertible security.

1990, c. 4, s. 6; 1994, c. 24, s. 34(F).

Restriction on amendment

7. Nordion and its shareholders and directors shall not

(a) apply for continuance of Nordion in another jurisdiction; or

(b) make any articles or by-laws that are inconsistent with the provisions included in its articles of amendment pursuant to subsection 6(1).


Theratronics

Provisions applicable to Theratronics

8. Sections 5 to 7 apply to Theratronics as if

(a) the references therein to “Nordion” were references to “Theratronics”; and

(b) the reference in subsection 6(1) to “twenty-five per cent” were a reference to “forty-nine per cent”.


Transitional And Consequential

The following provision is not in force.Pension rights

9. (1) In the manner and to the extent provided by the regulations made under subsection (3), the Public Service Superannuation Act and the regulations made under that Act apply to a person who meets all of the following criteria:

(a) the person was employed by Nordion or Theratronics and was a contributor under that Act immediately preceding the date on which shares of Nordion or Theratronics, as the case may be, are first sold or otherwise disposed of pursuant to subsection 4(1);

(b) the President of the Treasury Board has not made a payment to Nordion or Theratronics pursuant to section 40 of that Act in respect of that person;

(c) the person has not received or opted to receive any annuity or other benefit under section 12 or 13 of that Act in respect of the pensionable service to that person’s credit under that Act immediately preceding the date referred to in paragraph (a); and

(d) the person elects, within the later of one year after the coming into force of this section and one year after the date on which shares of Nordion or Theratronics, as the case may be, are first sold or otherwise disposed of pursuant to subsection 4(1), and in such form and manner as the President of the Treasury Board directs, to have that Act and the regulations made under that Act apply to that person in the manner and to the extent provided by the regulations made under subsection (3).

Election irrevocable

(2) An election referred to in paragraph (1)(d) is irrevocable.

Regulations

(3) The Governor in Council may, in relation to persons referred to in paragraph (1)(d), make regulations

(a) respecting the manner in which and extent to which provisions of the Public Service Superannuation Act and the regulations made under that Act apply;

(b) adapting provisions of that Act and those regulations for the purposes of this section; and

(c) generally for carrying out the purposes and provisions of this section.

Retroactive application of regulations

(4) Regulations made under subsection (3) may, if they so provide, be retroactive and have effect with respect to any period before they are made.

1990, c. 4, s. 9; 1992, c. 46, s. 90.

Application of Public Service Superannuation Act

10. Notwithstanding subsection 42(4) of the Public Service Superannuation Act, the Governor in Council may, by order, delete the name of Nordion or Theratronics from Part I of Schedule I to that Act.

Shares qualified

11. For the purpose of qualifying the shares of Nordion

(a) as an authorized investment under paragraph 86(n) of the Canadian and British Insurance Companies Act, paragraph 61(1)(j) of the Loan Companies Act or paragraph 78(1)(j) of the Trust Companies Act,

(b) as a permitted investment under paragraph 1(s) of Schedule III to the Pension Benefits Standards Regulations, 1985, and

(c) as assets that may be vested in trust in Canada under paragraph 1(n) of Schedule II to the Canadian and British Insurance Companies Act or paragraph 1(n) of the schedule to the Foreign Insurance Companies Act,

Nordion is deemed to have satisfied the requirements of those paragraphs with respect to each of the five years immediately preceding the date on which shares of Nordion are first sold or otherwise disposed of pursuant to subsection 4(1).


Coming Into Force

Coming into force


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