Amendment to Change in Control Agreement



 



EXHIBIT 10.39.1


Amendment of

Agreement Regarding Change in Control

With Mackenzie Investment Management, Inc.


     THIS AGREEMENT, dated as of August 7, 2002 (the “Amendment Effective
Date”), by and between Stephen J. Barrett (the “Executive”) and Mackenzie
Investment Management, Inc. (the “Company”);


WITNESSETH THAT:


     WHEREAS, the Executive and the Company have entered into the Agreement
Regarding Change in Control with Mackenzie Investment Management, Inc. dated
June 28, 2001 (the “Agreement”);


     WHEREAS, amendment of the Agreement is now desirable;


     NOW, THEREFORE, IT IS AGREED by and between the Executive and the Company
that beginning on the Effective Date (as defined in the Agreement) the term
“Company” (as defined in the Agreement) shall mean Mackenzie Investment
Management, Inc. and that the Agreement is hereby amended as of the Amendment
Effective Date in the following particulars:



		
	 	1. By adding the following at the end of paragraph 1 of the Agreement:




		
	 	“If a Second Change in Control shall occur during the Agreement Term,
then the Agreement Term shall continue for a period of twenty-four
calendar months beyond the calendar month in which such Second Change in
Control occurs. The Agreement Term shall end on the last day of the
twenty-fourth calendar month following the calendar month in which such
Second Change in Control occurs.”




		
	 	2. By adding the following at the end of paragraph 9 of the Agreement:




		
	 	“For purposes of this Agreement, a “Second Change in Control” shall be
deemed to occur on the date of any of the following events with respect
to either the Company or New Parent (referred to generically as company):




	 	 	 
	(a)	 	
the acquisition in one or more transactions by any “Person”
(as such term is used for purposes of Section 13(d) or Section 14(d)
of the Act) but excluding, for this purpose, the Company and New
Parent or their Subsidiaries, or any employee benefit plan of New
Parent or the Company or their Subsidiaries, of “Beneficial
Ownership” (within the meaning of Rule 13d-3 under the Act) of
thirty-five percent (35%) or more of the combined voting power of
the company’s then outstanding voting securities;
	 
	(b)	 	
the individuals who, as of April 1, 2002, constitute the
Board (the “Incumbent Board”) cease for any reason to constitute at
least a majority of the Board; provided, however, that if the
election, or nomination for election by the company’s shareholders,
of any new director was approved by a vote of at least a majority of
the Incumbent Board, such new director shall be considered as a
member of the Incumbent Board, and provided further that any
reductions in the size of the Board that are instituted voluntarily
by the Incumbent Board shall not constitute a Change of Control, and
after any such reduction the “Incumbent Board” shall mean the Board
as so reduced;
	 
	(c)	 	
a merger or consolidation involving the company if the
shareholders of the company, immediately before such merger or
consolidation, do not own, directly or indirectly, immediately
following such merger or consolidation, more than sixty-five percent
(65%) of the combined voting power of the then outstanding voting
securities of the corporation resulting from such merger or
consolidation;
	 
	(d)	 	
a complete liquidation or dissolution of the company or a
sale or other disposition of all or substantially all of the assets
of the company;










 




	 	 	 
	(e)	 	
acceptance by shareholders of the company of shares in a
share exchange if the shareholders of the company, immediately
before such share exchange, do not own, directly or indirectly,
immediately following such share exchange, more than sixty-five
percent (65%) of the combined voting power of the then outstanding
voting securities of the corporation resulting from such share
exchange.




		
	 	For Purposes of this Agreement, a Second Change in Control shall also be
deemed to occur on the date of either of the following events:




	 	 	 
	(i)	 	
substantially all of the business and assets of the Company; or
	 
	(ii)	 	
substantially all of the business or assets of the
Company’s investment management arm responsible for
management of its Ivy Funds mutual funds in the United States
or substantially all of the business or assets of the
Company’s business unit which manages mutual funds sold to
the Canadian marketplace by the New Parent or a New Parent
Affiliate;
	 
	 	
are transferred to a business (or other transferee) other than New
Parent or a New Parent Affiliate.




		
	 	For purposes of this Agreement the term “New Parent” shall mean Investors
Group Inc. and include any corporation, partnership, joint venture, or
other entity that succeeds to the interest of New Parent by means of a
merger, consolidation, or other restructuring. The term “New Parent
Affiliate” means the New Parent and any of its “affiliates” as that term
is defined in the Exchange Act.




		
	 	Notwithstanding anything contained in this Agreement to the contrary, if
Executive’s employment is terminated prior to a Second Change in Control
and Executive reasonably demonstrates that such termination was at the
request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Second Change in Control who
effectuates a Second Change in Control, then for all purposes of this
Agreement, the date of a Second Change of Control shall mean the date
immediately prior to the date of such termination of Executive
employment.”



     IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Amendment Effective Date.



	 	 	 
	 	 	
Mackenzie Investment Management, Inc.
	 
	 
	 
	 	 	
/s/ KEITH J. CARLSON
	 	 	


	 	 	
By: Keith J. Carlson

Its: President & CEO
	/s/ STEPHEN J. BARRETT


Executive: Stephen J. Barrett	 	 




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