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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE DESCARTES SYSTEMS GROUP INC.
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(Exact name of registrant as specified in its charter)
Ontario, Canada Not applicable
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(State of incorporation (IRS Employer
or organization) identification No.)
120 Randall Drive, Waterloo, Ontario N2V 1C6
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(Address of principal executive offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(c), please
check the following box. [_] check the following box. [X]
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
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Rights to Purchase Common Shares, no par value
(Title of Class)
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1 of 15 Pages
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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Background
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On November 29, 2004, the Board of Directors of The Descartes
Systems Group Inc. (the "Corporation") adopted a shareholder rights plan (the
"Rights Plan"), pursuant to Shareholder Rights Plan Agreement dated as of
November 29, 2004 between the Corporation and Computershare Trust Company of
Canada, as Rights Agent.
The Rights Plan creates a right (which may only be exercised if a
person acquires control of 20% or more of the Common Shares of the Corporation)
for each shareholder, other than the person that acquires 20% or more of the
Common Shares of the Corporation, to acquire additional Common Shares at
one-half of the Market Price (as defined in the Rights Plan) of the Common
Shares. This significantly dilutes the share position of the person that
acquires 20% or more of the Common Shares of the Corporation and practically
prevents that person from acquiring control of 20% or greater of the Common
Shares unless the rights plan has been withdrawn or the buyer makes a Permitted
Bid (as defined in the Rights Plan and discussed below).
Shareholder approval of the Rights Plan is not required by law but
is required by applicable stock exchange rules. The Rights Plan has
conditionally been approved by the Toronto Stock Exchange and is subject to
approval by a simple majority of 50% plus one vote of the votes cast by the
Independent Shareholders (as defined in the Rights Plan) at the next annual and
special meeting of the holders of the Common Shares of the Corporation. Under
the terms of the Rights Plan, the continued existence of the Rights Plan must be
approved and ratified by the Independent Shareholders on or before the date of
the Corporation's 2008 annual meeting. If approved by shareholders, the Rights
Plan will take effect as of November 29, 2004, and will have an initial term of
three years.
An "Independent Shareholder" is generally any shareholder other than
an "Acquiring Person" (as defined in the Rights Plan) and its associates and
affiliates. As of the date of the Rights Plan, the Corporation is not aware of
any shareholder that would not be considered an Independent Shareholder.
Investment Canada Act
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Canada has no system of exchange controls. There is no law,
government decree or regulation in Canada restricting the export or import of
capital or affecting the remittance of dividends, interest or other payments to
a non-resident holder of Common Shares, other than withholding tax requirements.
There is no limitation imposed by Canadian law or by the articles or
other charter documents of the Corporation on the right of a non-resident to
hold or vote Common Shares of the Corporation, other than as provided in the
Investment Canada Act (the "Investment Act"), as amended by the World Trade
Organization Agreement Implementation Act (the "WTOA Act"). The Investment Act
generally prohibits
Page 2 of 15 Pages
implementation of a reviewable investment by an individual, government or agency
thereof, corporation, partnership, trust or joint venture that is not a
"Canadian," as defined in the Investment Act (a "non-Canadian"), unless, after
review, the minister responsible for the Investment Act is satisfied that the
investment is likely to be a net benefit to Canada. An investment in the Common
Shares of the Corporation by a non-Canadian (other than a "WTO Investor," as
defined below) would be reviewable under the Investment Act if it were an
investment to acquire direct control of the Corporation, and the value of the
assets of the Corporation were $5.0 million or more. Except for certain economic
sectors with respect to which the lower threshold would apply, an investment in
the Common Shares of the Corporation by a WTO Investor would be reviewable under
the Investment Act if it were an investment to acquire direct control of the
Corporation, and the value of the assets of the Corporation equaled or exceeded
$237 million CDN. A non-Canadian, whether a WTO Investor or otherwise, would
acquire control of the Corporation for purposes of the Investment Act if he or
she acquired a majority of the Common Shares of the Corporation. The acquisition
of less than a majority, but at least one-third of the Common Shares of the
Corporation, would be presumed to be an acquisition of control of the
Corporation, unless it could be established that the Corporation was not
controlled in fact by the acquirer through the ownership of the Common Shares.
In general, an individual is a WTO Investor if he or she is a "national" of a
country (other than Canada) that is a member of the World Trade Organization
("WTO Member") or has a right of permanent residence in a WTO Member. A
corporation or other entity will be a WTO investor if it is a "WTO
Investor-controlled entity" pursuant to detailed rules set out in the Investment
Act. The United States is a WTO Member.
Certain transactions involving the Common Shares of the Corporation
would be exempt from the Investment Act, including: (a) an acquisition of the
Common Shares of the Corporation if the acquisition were made in connection with
the person's business as a trader or dealer in securities; (b) an acquisition of
control of the Corporation in connection with the realization of a security
interest granted for a loan or other financial assistance and not for any
purpose related to the provisions of the Investment Act; and (c) an acquisition
of control of the Corporation by reason of an amalgamation, merger,
consolidation or corporate reorganization, following which the ultimate direct
or indirect control of the Corporation, through the ownership of voting
interests, remains unchanged.
Canadian Tax Matters
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The following summary is based upon the current provisions of the
INCOME TAX ACT (Canada) (the "Tax Act") and the regulations thereunder, all
proposed amendments to the Tax Act and the regulations thereunder publicly
announced by the Minister of Finance (Canada) prior to the date hereof, the
administrative policies and assessing practices of the Canada Revenue Agency
("CRA") made publicly available prior to the date hereof and the Canada-United
States Income Tax Convention (1980) (the "Convention"). There can be no
assurances that any such proposed amendments will be enacted in their current
form, or at all. Except for the foregoing, this summary does not take into
account or anticipate changes in the law or the administrative policies or
assessing practices of the
Page 3 of 15 Pages
CRA whether by legislative, governmental or judicial action and does not take
into account or anticipate provincial, territorial or non-Canadian tax
considerations.
This is a summary of the principal Canadian federal income tax
considerations relating to the issuance of Rights to holders of Common Shares
("shareholders") who: (i) for purposes of the Tax Act, are not, have not been
and will not be or be deemed to be resident in Canada at any time while they
held or hold Common Shares, deal at arm's length and are not affiliated with the
Company, and hold their Common Shares as capital property, and (ii) for purposes
of the Convention, are residents of the United States and not residents of
Canada.
The Company considers that the Rights, when issued, will have
negligible monetary value and therefore the issuance of Rights to a shareholder
that is neither resident nor deemed to be resident in Canada for purposes of the
Tax Act should not be subject to non-resident withholding tax under the Tax Act.
The exercise or disposition of such Rights by such holders may have income or
withholding tax consequences under the Tax Act.
This statement is of a general nature only and is not intended to
constitute nor should it be construed to constitute legal or tax advice to any
particular shareholder. Shareholders are advised to consult their own tax
advisors regarding the consequences of acquiring, holding, exercising or
otherwise disposing of their Rights, taking into account their own particular
circumstances and any applicable tax laws.
Description of Rights
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The following is a summary of the principal terms of the Rights
Plan. The summary is qualified in its entirety by the full text of the Rights
Plan, which is attached as Exhibit 1 hereto. All capitalized terms used in this
summary without definition have the meanings attributed to them in the Rights
Plan unless otherwise indicated.
(a) ISSUANCE OF RIGHTS
The Board has authorized, subject to regulatory approvals, the issue
on November 29, 2004 of one Right in respect of each Common Share outstanding at
the close of business on November 29, 2004, the date of implementation of the
Rights Plan. The Board will also authorize the issue of one Right for each
Common Share issued after such date and prior to the earlier of the Separation
Time and the Expiration Time. Each Right entitles the registered holder thereof
to purchase from the Corporation one Common Share at the exercise price equal to
three times the Market Price of the Common Share, subject to adjustment and
certain anti-dilution provisions (the "Exercise Price"). The Rights are not
exercisable until the Separation Time. If a Flip-in Event occurs, each Right
will entitle the registered holder to receive, upon payment of the Exercise
Price, Common Shares having an aggregate Market Price equal to twice the
Exercise Price.
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The Corporation is not required to issue or deliver Rights, or
securities upon the exercise of Rights, outside Canada or the United States
where such issuance or delivery would be unlawful without registration of the
relevant Persons or securities. If the Rights Plan would require compliance with
securities laws or comparable legislation of a jurisdiction outside Canada and
the United States, the Board of Directors may establish procedures for the
issuance to a Canadian resident fiduciary of such securities, to hold such
Rights or other securities in trust for the Persons beneficially entitled to
them, to sell such securities, and to remit the proceeds to such Persons.
(b) TRADING OF RIGHTS
Until the Separation Time (or the earlier termination or expiration
of the Rights), the Rights will be evidenced by the certificates representing
the Common Shares and will be transferable only together with the associated
Common Shares. From and after the Separation Time, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of Common Shares (other than an Acquiring Person) as of the Separation
Time. Rights Certificates will also be issued in respect of Common Shares issued
prior to the Expiration Time, to each holder (other than an Acquiring Person)
converting, after the Separation Time, securities ("Convertible Securities")
convertible into or exchangeable for Common Shares. The Rights will trade
separately from the Common Shares after the Separation Time.
(c) SEPARATION TIME
The Separation Time is the Close of Business on the tenth Business
Day after the earlier of (i) the "Stock Acquisition Date", which is generally
the first date of public announcement of facts indicating that a Person has
become an Acquiring Person; and (ii) the date of the commencement of, or first
public announcement of the intent of any Person (other than the Corporation or
any Subsidiary of the Corporation) to commence a Take-over Bid (other than a
Permitted Bid or a Competing Permitted Bid, and the Rights Plan requires such
bid to continue to satisfy the requirements of a Permitted Bid or Competing
Permitted Bid). In either case, the Separation Time can be such later date as
may from time to time be determined by the Board of Directors. If a Take-over
Bid expires, is cancelled, terminated or otherwise withdrawn prior to the
Separation Time, it shall be deemed never to have been made.
(d) ACQUIRING PERSON
In general, an Acquiring Person is a Person who is the Beneficial
Owner of 20% or more of the outstanding Common Shares. Excluded from the
definition of "Acquiring Person" are the Corporation and its Subsidiaries, and
any Person who becomes the Beneficial Owner of 20% or more of the outstanding
Common Shares as a result of one or more or any combination of an acquisition or
redemption by the Corporation of Common Shares, a Permitted Bid Acquisition, an
Exempt Acquisition, a Convertible Security Acquisition and a Pro Rata
Acquisition. The definitions of "Permitted Bid
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Acquisition", "Exempt Acquisition", "Convertible Security Acquisition" and "Pro
Rata Acquisition" are set out in the Rights Plan. However, in general:
(i) a "Permitted Bid Acquisition" means an acquisition of Common
Shares made pursuant to a Permitted Bid or a Competing
Permitted Bid;
(ii) an "Exempt Acquisition" means an acquisition of Common Shares
in respect of which the Board of Directors has waived the
application of the Rights Plan, which was made pursuant to a
dividend reinvestment plan of the Corporation, which was made
pursuant to the receipt or exercise of rights issued by the
Corporation to all the holders of Common Shares (other than
holders resident in a jurisdiction where such distribution is
restricted or impracticable as a result of applicable law) to
subscribe for or purchase Common Shares or Convertible
Securities (provided that such rights are acquired directly
from the Corporation and not from any other Person and
provided that the Person does not hereby acquire a greater
percentage of Common Shares or Convertible Securities so
offered than the Person's percentage of Common Shares or
Convertible Securities beneficially owned immediately prior to
such acquisition), which was made pursuant to a distribution
by the Corporation of Common Shares or Convertible Securities
made pursuant to a prospectus (provided that the Person does
not thereby acquire a greater percentage of the Common Shares
or Convertible Securities so offered than the percentage owned
immediately prior to such acquisition), which was made
pursuant to a distribution by the Corporation of Common Shares
or Convertible Securities by way of a private placement or a
securities exchange take-over bid circular or upon the
exercise by an individual employee of stock options granted
under a stock option plan of the Corporation or rights to
purchase securities granted under a share purchase plan of the
Corporation, or which is made pursuant to an amalgamation,
merger or other statutory procedure requiring shareholder
approval;
(iii) a "Convertible Security Acquisition" means an acquisition of
Common Shares upon the exercise of Convertible Securities
received by such Person pursuant to a Permitted Bid
Acquisition, Exempt Acquisition or a Pro Rata Acquisition; and
(iv) a "Pro Rata Acquisition" means an acquisition as a result of a
stock dividend, a stock split or other event pursuant to which
such Person receives or acquires Common Shares or Convertible
Securities on the same pro rata basis as all other holders of
Common Shares of the same class.
Also excluded from the definition of "Acquiring Person" are
underwriters or members of a banking or selling group acting in connection with
a distribution of securities by way of prospectus or private placement, a Person
in its capacity as an
Page 6 of 15 Pages
Investment Manager, Trust Company, Plan Trustee, Statutory Body, Crown agent or
agency or Manager (provided that such Person is not making or proposing to make
a Take-over Bid), and a Person (a "Grandfathered Person") who is the Beneficial
Owner of 20% or more of the outstanding Common Shares of the Corporation as at
the Record Time, provided, however, that this exception ceases to be applicable
to a Grandfathered Person in the event that such Grandfathered Person shall,
after the Record Time: (1) cease to own 20% or more of the outstanding Common
Shares or (2) become the Beneficial Owner of additional Common Shares
constituting more than 1% of the number of Common Shares outstanding as at the
Record Time.
(e) BENEFICIAL OWNERSHIP
GENERAL
In general, a Person is deemed to Beneficially Own Common Shares
actually held by others in circumstances where those holdings are or should be
grouped together for purposes of the Rights Plan. Included are holdings by the
Person's Affiliates (generally, a person that controls, is controlled by, or
under common control with another person) and Associates (generally, relatives
sharing the same residence). Also included are securities which the Person or
any of the Person's Affiliates or Associates has the right to acquire within 60
days (other than (1) customary agreements with and between underwriters and
banking group or selling group members with respect to a distribution to the
public or pursuant to a private placement of securities; or (2) pursuant to a
pledge of securities in the ordinary course of business).
A Person is also deemed to "Beneficially Own" any securities that
are Beneficially Owned (as described above) by any other Person with which the
Person is acting jointly or in concert (a "Joint Actor"). A Person is a Joint
Actor with any Person who is a party to an agreement, arrangement or
understanding with the first Person or an Associate or Affiliate thereof to
acquire or offer to acquire Common Shares.
INSTITUTIONAL SHAREHOLDER EXEMPTIONS FROM BENEFICIAL OWNERSHIP
The definition of "Beneficial Ownership" contains several exclusions
whereby a Person is not considered to "Beneficially Own" a security. There are
exemptions from the deemed "Beneficial Ownership" provisions for institutional
shareholders acting in the ordinary course of business. These exemptions apply
to (i) an investment manager ("Investment Manager") which holds securities in
the ordinary course of business in the performance of its duties for the account
of any other Person (a "Client") including, the acquisition or holding of
securities for non-discretionary accounts held on behalf of a Client by a broker
or dealer registered under applicable securities laws); (ii) a licensed trust
company ("Trust Company") acting as trustee or administrator or in a similar
capacity in relation to the estates of deceased or incompetent persons (each an
"Estate Account") or in relation to other accounts (each an "Other Account") and
which holds such security in the ordinary course of its duties for such
accounts; (iii) the administrator or the trustee (a "Plan Trustee") of one or
more pension funds or plans (a "Plan")
Page 7 of 15 Pages
registered under applicable law; (iv) a Person who is a Plan or is a Person
established by statute (the "Statutory Body"), and its ordinary business or
activity includes the management of investment funds for employee benefit plans,
pension plans, insurance plans, or various public bodies; (v) a Crown agent or
agency; (iv) a manager or trustee ("Manager") of a mutual fund ("Mutual Fund")
that is registered or qualified to issue its securities to investors under the
securities laws of any province of Canada or the laws of the United States of
America or is a Mutual Fund. The foregoing exemptions only apply so long as the
Investment Manager, Trust Company, Plan Trustee, Plan, Statutory Body, Crown
agent or agency, Manager or Mutual Fund is not then making or has not then
announced an intention to make a Take-over Bid, other than an Offer to Acquire
Common Shares or other securities pursuant to a distribution by the Corporation
or by means of ordinary market transactions.
A Person will not be deemed to "Beneficially Own" a security because
(i) the Person is a Client of the same Investment Manager, an Estate Account or
an Other Account of the same Trust Company, or Plan with the same Plan Trustee
as another Person or Plan on whose account the Investment Manager, Trust Company
or Plan Trustee, as the case may be, holds such security; or (ii) the Person is
a Client of an Investment Manager, Estate Account, Other Account or Plan, and
the security is owned at law or in equity by the Investment Manager, Trust
Company or Plan Trustee, as the case may be.
EXEMPTION FOR PERMITTED LOCK-UP AGREEMENT
Under the Rights Plan, a Person will not be deemed to "Beneficially
Own" any security where the holder of such security has agreed to deposit or
tender such security, pursuant to a Permitted Lock-up Agreement, to a Take-over
Bid made by such Person or such Person's Affiliates or Associates or a Joint
Actor, or such security has been deposited or tendered pursuant to a Take-over
Bid made by such Person or such Person's Affiliates, Associates or Joint Actors
until the earliest time at which any such tendered security is accepted
unconditionally for payment or is taken up or paid for.
A Permitted Lock-up Agreement is essentially an agreement between a
Person and one or more holders of Common Shares (the terms of which are publicly
disclosed and available to the public within the time frames set forth in the
definition of Permitted Lock-up Agreement) pursuant to which each Locked-up
Person agrees to deposit or tender Common Shares to the Lock-up Bid and which
further (i) permits the Locked-up Person to withdraw its Common Shares in order
to deposit or tender the Common Shares to another Take-over Bid or support
another transaction at a price or value that exceeds the price under the Lock-Up
Bid; or (ii) permits the Locked-up Person to withdraw its Common Shares in order
to deposit or tender the Common Shares to another Take-over Bid or support
another transaction at an offering price that exceeds the offering price in the
Lock-up Bid by as much as or more than a Specified Amount and that does not
provide for a Specified Amount greater than 7% of the offering price in the
Lock-up Bid. The Rights Plan therefore requires that a Person making a Take-Over
Bid structure any lock-up agreement so as to provide reasonable flexibility to
the shareholder in order to
Page 8 of 15 Pages
avoid being deemed the Beneficial Owner of the Common Shares subject to the
lock-up agreement and potentially triggering the provisions of the Rights Plan.
A Permitted Lock-up Agreement may contain a right of first refusal
or require a period of delay to give the Person who made the Lock-up Bid an
opportunity to match a higher price in another Take-Over Bid or other similar
limitation on a Locked-up Person's right to withdraw Common Shares so long as
the limitation does not preclude the exercise by the Locked-up Person of the
right to withdraw Common Shares during the period of the other Take-Over Bid or
transaction. Finally, under a Permitted Lock-up Agreement, no "break up" fees,
"top up" fees, penalties, expenses or other amounts that exceed in aggregate the
greater of (i) 2 1/2% of the price or value of the consideration payable under
the Lock-up Bid; and (ii) 50% of the amount by which the price or value of the
consideration received by a Locked-up Person under another Take-Over Bid or
transaction exceeds what such Locked-up Person would have received under the
Lock-up Bid; can be payable by such Locked-up Person if the Locked-up Person
fails to deposit or tender Common Shares to the Lock-up Bid or withdraws Common
Shares previously tendered thereto in order to deposit such Common Shares to
another Take-Over Bid or support another transaction.
(f) FLIP-IN EVENT
A Flip-in Event occurs when any Person becomes an Acquiring Person.
In the event that, prior to the Expiration Time, a Flip-in Event which has not
been waived by the Board of Directors occurs (see "Redemption, Waiver and
Termination"), each Right (except for Rights Beneficially Owned or which may
thereafter be Beneficially Owned by an Acquiring Person, an Affiliate or
Associate of an Acquiring Person or a Joint Actor (or a transferee of any such
Person), which Rights will become null and void) shall constitute the right to
purchase from the Corporation, upon exercise thereof in accordance with the
terms of the Rights Plan, that number of Common Shares having an aggregate
Market Price on the date of the Flip-in Event equal to twice the Exercise Price,
for the Exercise Price (such Right being subject to anti-dilution adjustments).
For example, if at the time of the Flip-in Event the Exercise Price is $4.50 and
the Market Price of the Common Shares is $2.00, the holder of each Right would
be entitled to purchase Common Shares having an aggregate Market Price of $9.00
(that is, 4.5 Common Shares) for $4.50 (that is, a 50% discount from the Market
Price).
(g) PERMITTED BID AND COMPETING PERMITTED BID
A Permitted Bid is a Take-over Bid made by way of a Take-over Bid
circular and which complies with the following additional provisions:
(i) the Take-over Bid is made to all holders of record of Common
Shares, other than the Offeror;
(ii) the Take-over Bid contains irrevocable and unqualified
conditions that:
Page 9 of 15 Pages
A. no Common Shares shall be taken up or paid for pursuant
to the Take-over Bid prior to the close of business on a
date which is not less than 60 days following the date
of the Take-over Bid and the provisions for the take-up
and payment for Common Shares tendered or deposited
thereunder shall be subject to such irrevocable and
unqualified condition;
B. unless the Take-over Bid is withdrawn, Common Shares may
be deposited pursuant to the Take-over Bid at any time
prior to the close of business on the date of first
take-up or payment for Common Shares and all Common
Shares deposited pursuant to the Take-over Bid may be
withdrawn at any time prior to the close of business on
such date;
C. more than 50% of the outstanding Common Shares held by
Independent Shareholders must be deposited to the
Take-over Bid and not withdrawn at the close of business
on the date of first take-up or payment for Common
Shares; and
D. in the event that more than 50% of the then outstanding
Common Shares held by Independent Shareholders have been
deposited to the Take-over Bid and not withdrawn as at
the date of first take-up or payment for Common Shares
under the Take-over Bid, the Offeror will make a public
announcement of that fact and the Take-over Bid will
remain open for deposits and tenders of Common Shares
for not less than 10 Business Days from the date of such
public announcement.
A Competing Permitted Bid is a Take-over Bid that is made after a
Permitted Bid has been made but prior to its expiry and that satisfies all the
requirements of a Permitted Bid as described above, except that a Competing
Permitted Bid is not required to remain open for 60 days so long as it is open
until the later of (i) the earliest date on which Common Shares may be taken-up
or paid for under any earlier Permitted Bid or Competing Permitted Bid that is
in existence and (ii) 35 days (or such other minimum period of days as may be
prescribed by applicable law in Ontario) after the date of the Take-over Bid
constituting the Competing Permitted Bid.
(h) REDEMPTION, WAIVER AND TERMINATION
(i) REDEMPTION OF RIGHTS ON APPROVAL OF HOLDERS OF COMMON SHARES
AND RIGHTS. The Board of Directors acting in good faith may,
after having obtained the prior approval of the holders of
Common Shares or Rights, at any time prior to the occurrence
of a Flip-in Event, elect to redeem all but not less than all
of the then outstanding Rights at a redemption price of
$0.00001 per Right, appropriately adjusted for anti-dilution
as provided in the Rights Agreement (the "Redemption Price").
Page 10 of 15 Pages
(ii) WAIVER OF INADVERTENT ACQUISITION. The Board of Directors
acting in good faith may waive the application of the Rights
Plan in respect of the occurrence of any Flip-in Event if (i)
the Board of Directors has determined that a Person became an
Acquiring Person under the Rights Plan by inadvertence and
without any intent or knowledge that it would become an
Acquiring Person; and (ii) the Acquiring Person has reduced
its Beneficial Ownership of Common Shares such that at the
time of waiver the Person is no longer an Acquiring Person.
(iii) DEEMED REDEMPTION. In the event that a Person who has made a
Permitted Bid or a Take-over Bid in respect of which the Board
of Directors has waived or has deemed to have waived the
application of the Rights Plan consummates the acquisition of
the Common Shares, the Board of Directors shall be deemed to
have elected to redeem the Rights for the Redemption Price.
(iv) DISCRETIONARY WAIVER WITH MANDATORY WAIVER OF CONCURRENT BIDS.
The Board of Directors acting in good faith may, prior to the
occurrence of a Flip-in Event as to which the Rights Plan has
not been waived under this clause, upon prior written notice
to the Rights Agent, waive the application of the Rights Plan
to a Flip-in Event that may occur by reason of a Take-over Bid
made by means of a Take-over Bid circular to all holders of
record of Common Shares. However, if the Board of Directors
waives the application of the Rights Plan, the Board of
Directors shall be deemed to have waived the application of
the Rights Plan in respect of any other Flip-in Event
occurring by reason of such a Take-over Bid made prior to the
expiry of a bid for which a waiver is, or is deemed to have
been, granted.
(v) DISCRETIONARY WAIVER RESPECTING ACQUISITION NOT BY TAKE-OVER
BID CIRCULAR. The Board of Directors acting in good faith may,
with the prior consent of the holders of Common Shares,
determine, at any time prior to the occurrence of a Flip-in
Event as to which the application of the Rights Plan has not
been waived, if such Flip-in Event would occur by reason of an
acquisition of Common Shares otherwise than pursuant to a
Take-over Bid made by means of a Take-over Bid circular to
holders of Common Shares and otherwise than by inadvertence
when such inadvertent Acquiring Person has then reduced its
holdings to below 20%, to waive the application of the Rights
Plan to such Flip-in Event. However, if the Board of Directors
waives the application of the Rights Plan, the Board of
Directors shall extend the Separation Time to a date
subsequent to and not more than 10 Business Days following the
meeting of shareholders called to approve such a waiver.
Page 11 of 15 Pages
(vi) REDEMPTION OF RIGHTS ON WITHDRAWAL OR TERMINATION OF BID.
Where a Take-over Bid that is not a Permitted Bid is withdrawn
or otherwise terminated after the Separation Time and prior to
the occurrence of a Flip-in Event, the Board of Directors may
elect to redeem all the outstanding Rights at the Redemption
Price.
If the Board of Directors is deemed to have elected or elects to
redeem the Rights as described above, the right to exercise the Rights will
thereupon, without further action and without notice, terminate and the only
right thereafter of the holders of Rights is to receive the Redemption Price.
Within 10 Business Days of any such election or deemed election to redeem the
Rights, the Corporation will notify the holders of the Common Shares or, after
the Separation Time, the holders of the Rights.
(i) ANTI-DILUTION ADJUSTMENTS
The Exercise Price of a Right, the number and kind of securities
subject to purchase upon exercise of a Right, and the number of Rights
outstanding, will be adjusted in certain events, including:
(a) if there is a dividend payable in Common Shares or Convertible
Securities (other than pursuant to any optional stock dividend
program, divided reinvestment plan or a dividend payable in
Common Shares in lieu of a regular periodic cash dividend) on
the Common Shares;
(b) or a subdivision or consolidation of the Common Shares;
(c) or an issuance of Common Shares or Convertible Securities in
respect of, in lieu of or in exchange for Common Shares; or
(d) if the Corporation fixes a record date for the distribution to
all holders of Common Shares of certain rights or warrants to
acquire Common Shares or Convertible Securities, or for the
making of a distribution to all holders of Common Shares of
evidences of indebtedness or assets (other than regular
periodic cash dividend or a dividend payable in Common Shares)
or rights or warrants.
(j) SUPPLEMENTS AND AMENDMENTS
The Corporation may make amendments to correct any clerical or
typographical error or which are necessary to maintain the validity of the
Rights Agreement as a result of any change in any applicable legislation, rules
or regulation. Any changes made to maintain the validity of the Rights Plan
shall be subject to subsequent confirmation by the holders of the Common Shares
or, after the Separation Time, the holders of the Rights.
Subject to the above exceptions, after the meeting, any amendment,
variation or deletion of or from the Rights Agreement and the Rights is subject
to the prior approval
Page 12 of 15 Pages
of the holders of Common Shares, or, after the Separation Time, the holders of
the Rights.
The Board of Directors reserves the right to alter any terms of or
not proceed with the Rights Plan at any time prior to the Meeting if the Board
of Directors determines that it would be in the best interests of the
Corporation and its shareholders to do so, in light of subsequent developments.
(k) EXPIRATION
If the Rights Plan is ratified, confirmed and approved at the
Meeting, it will become effective immediately following such approval and remain
in force until the earlier of the Termination Time (the time at which the right
to exercise Rights shall terminate pursuant to the Rights Plan) and the
termination of the annual meeting of the Shareholders in the year 2008 unless at
or prior to such meeting the Corporation's shareholders ratify the continued
existence of the Rights Plan, in which case the Rights Plan would expire at the
earlier of the Termination Time and the termination of the 2011 annual meeting
of the Corporation's shareholders.
ITEM 2. EXHIBITS
--------
Exhibit No. Exhibit
---------- -------
1 Shareholder Rights Plan Agreement, dated as of
November 29, 2004, by and between The Descartes
Systems Group Inc. and Computershare Trust Company
of Canada
2 Specimen of Rights Certificate (attached as Exhibit
A to Exhibit 1)
3 Articles of Amalgamation of The Descartes Systems
Group Inc.
4 By-laws of The Descartes Systems Group Inc.
5 Form of Share Certificate for Common Shares of The
Descartes Systems Group Inc.
Page 13 of 15 Pages
SIGNATURE
---------
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
The Descartes Systems
Group Inc.
Dated: November 29, 2004 By: /s/ Scott Pagan
--------------------------------
J. Scott Pagan,
General Counsel and
Corporate Secretary
Page 14 of 15 Pages
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
1 Shareholder Rights Plan Agreement, dated as of
November 29, 2004, by and between The Descartes
Systems Group Inc. and Computershare Trust Company
of Canada
2 Specimen of Rights Certificate (attached as Exhibit
A to Exhibit 1)
3 Articles of Amalgamation of The Descartes Systems
Group Inc.
4 By-laws of The Descartes Systems Group Inc.
5 Form of Share Certificate for Common Shares of The
Descartes Systems Group Inc.
Page 15 of 15 Pages