Page 14 of 18 – SEC Filing
Amendment No. 2 to Schedule 13D
This Amendment No. 2 (Amendment No. 2) amends and supplements the Schedule 13D filed with the Securities and Exchange
Commission (the SEC) on October 17, 2016, as amended by Amendment No. 1 to the Schedule 13D filed on March 8, 2017 (as amended, the Schedule 13D). Except as set forth herein, the Schedule 13D
remains in full force and effect. Each capitalized term used but not defined herein has the meaning ascribed to such term in the Schedule 13D. Ownership percentages set forth in this Amendment No. 2 are based upon a total of 86,007,186 Common
Shares of the Issuer issued and outstanding, as reported in the Companys Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on April 13, 2017.
| Item 4. | Purpose of the Transaction |
Item 4 of the Schedule 13D is hereby amended and
supplemented by the following:
On May 6, 2017, the Issuer entered into a Consent to Purchase Shares (the Consent)
with the Investors pursuant to which the Issuer granted a request for a waiver by the Investors of the standstill provision of the Investor Rights Agreement that limits the Investors from acquiring additional securities of the Issuer (the
Standstill), subject to certain exceptions. The Consent permits the Investors to purchase on or before May 6, 2020 up to that number of additional Common Shares equal to the lesser of (i) 5,125,036; and (ii) that
number of Common Shares that would ensure that the Investors beneficial ownership of voting or equity securities of the Issuer within the meaning of applicable securities law and the Issuers shareholder rights plan of does
not exceed 19.99% of the outstanding Common Shares on a partially-diluted as-exchanged basis at the time of such purchase. The Investors have agreed to acquire Common Shares pursuant to the Consent only in open market purchases on the NASDAQ Global
Select Market or the Toronto Stock Exchange.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 of the Schedule 13D is hereby amended and supplemented by the following:
Item 4 of this Amendment No. 2 is incorporated herein by reference.
In connection with the Consent, on May 6, 2017, the Issuer, SunOpta Foods, the Investors and OCM SunOpta Trustee, LLC (as assignee of GP
LLC) entered into an Amendment Agreement (the VTA Amendment) amending the Voting Trust Agreement. The VTA Amendment provides that no additional Special Voting Shares will be issued to the Investors if such issuance would result in
the Issuers shareholder rights plan being triggered. Such Special Voting Shares are issued upon the payment of in-kind dividends and anti-dilution and other adjustments under the terms of the Preferred Shares. At its Annual and Special Meeting
of Shareholders to be held on May 24, 2017, the Issuer is seeking shareholder approval of a resolution (the SRP Resolution) that would, among other things, waive the application of the Issuers shareholder rights plan in
order to allow the Investors to increase their beneficial ownership of outstanding voting shares to or above 20% where such increase results from the payment of in-kind dividends on the Preferred Shares. As a consequence of the VTA Amendment,
assuming the Investors acquire the maximum number of Common Shares permitted under the Consent, the Issuers shareholder rights plan would not be triggered by the payment of dividends on the Preferred Shares as in-kind dividends even if the
shareholders do not approve the SRP Resolution. The Issuers shareholder rights plan would continue to apply in accordance with its terms to other acquisitions of Common Shares that would otherwise trigger the shareholder rights plan.
The Investors are related parties of the Issuer and have two nominees on the Board. As a result, the Board established a process to have the
disinterested directors of the Board consider and approve the Consent and the VTA Amendment. Other than as expressly modified pursuant to the Consent and the VTA Amendment, the Investor Rights Agreement and the Voting Trust Agreement remain in full
force and effect.
The summary description of the Consent and the VTA Amendment does not purport to be complete and is qualified in its
entirety by reference to the Consent filed with this report as Exhibit 8 and the VTA Amendment filed with this report as Exhibit 9, in each case incorporated herein by reference.
