Exhibit 3.3
FORM 5
THE COMPANIES ACT OF BARBADOS
(Section 33 and 203)
ARTICLES OF AMENDMENT
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Name of Company: Company No:
STRATEGY HOLDING COMPANY LIMITED 23169
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SCHEDULE I
2. The classes and any maximum number of shares that the Company is
authorized to issue:
The Company shall be authorized to issue:
(i) an unlimited number of shares of a class designated
Common Shares (the "Common Shares");
(ii) an unlimited number of redeemable preference shares of a
class designated Class A Redeemable Preference Shares
Series 1 (the "Class A Preference Shares Series 1"); and
(iii) an unlimited number of redeemable preference shares of a
class designated Class B Redeemable Preference Shares
Series 1 (the "Class B Preference Shares Series 1").
(iv) an unlimited number of redeemable preference shares of a
class designated Class C Redeemable Preference Shares
Series 1 (the "Class C Preference Shares Series 1").
(v) an unlimited number of redeemable preference shares of a
class designated Class D Redeemable Preference Shares
Series 1 (the "Class D Preference Shares Series 1").
DEFINITIONS AND INTERPRETATION
For the purposes of this Schedule I of these Articles, capitalised
terms used and not specifically defined in this Schedule I shall
have the following meanings:
"Companies Act" means:-
(a) the Companies Act, Cap. 308 of the laws of
Barbados as from time to time amended and
every statute substituted therefor,
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(b) and the Companies Regulations made under the
Companies Act, and all regulations
substituted therefor,
and any references in the Articles of the Company to
provisions of the Companies Act or to specific
provisions of the Companies Act, shall be read as
references to the provisions as amended or
substituted therefor in the amendment or the new
statute or statutes;
"Exercise of Redemption" means that specific redemption of the shares of a
series of Preference Shares, (either in whole or in
part), by the Company as provided for in these
Articles.
"Series Issue Price" means, the price per share for each share of a given
series of Preference Shares;
"Series Liquidation means, the amount payable to the holders of shares of
Amount" a given series of Preference Shares, on the
liquidation. dissolution or winding up of the
Company, whether voluntary or involuntary, and
calculated in respect of each series as at the date
fixed by the special resolution of shareholder
authorising such liquidation, dissolution or winding
up of the Company, if voluntary, or on the date fixed
by operation of law as the date of the liquidation.
dissolution or winding up of the Company, if
involuntary as follows:
(a) the amount in the stated capital account
maintained in respect of the series of
Preference Shares of the Company to be
redeemed, plus
(b) the accrued and unpaid dividends in respect
of the series of Preference Shares;
and the Company may, subject to the operation of any
applicable law as at the date of the liquidation,
dissolution or winding up of the Company, at its
option pay the whole or any part of the amount
payable to any one or more holders of a given series
of Preferred Shares in such event by way of the
delivery and conveyance to such holders of good and
marketable title to the Property having an aggregate
Fair Market Value equal to or greater than such
amount or part thereof. For the purposes hereof
"Property" means the amount of the stated capital, or
any property of the Corporation received by the
Company pursuant to any right of substitution of
property exercised by the party to whom any such
shares were issued.
"Series Redemption the aggregate of the Preference Series Individual
Aggregate Amount" Share Redemption Amounts payable in respect of any
given Exercise of Redemption;
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"Series Share means, the amount payable to the holder of a share of
Redemption Amount" a given series of Preference Shares, on the
redemption of the shares of such series of Preference
Shares (in whole or in part), and calculated in
respect of each share of that series as at the date
fixed as the redemption date in the redemption Notice
or the date fixed as the redemption date in the
Retraction Notice (as the case may be) as follows:
(a) US$1,000 in respect of each Preference Share
of the series of Preference Shares of the
Company to be redeemed, plus
(b) the accrued and unpaid dividends in respect
of each Preference Share of the series of
Preference Shares of the Company to be
redeemed;
and the Company may, subject to the operation of any
applicable law as at the date fixed as the redemption
date in the Redemption Notice or the date fixed as
the redemption date in the Retraction Notice (as the
case may be), at its option pay the whole or any part
of the amount payable to any one or more holders of a
given series of Preferred Shares in such event by way
of the delivery and conveyance to such holders of
good and marketable title to the Property having an
aggregate Fair Market Value equal to or greater than
such amount or part thereof. For the purposes hereof
"Property" means the amount of the stated capital, or
any property of the Corporation received by the
Company pursuant to any right of substitution of
property exercised by the party to whom any such
shares were issued.
"Third Party Offeror" a person who together with its affiliates and
associates is a third-party dealing at arms-length
with the existing holders of Common Shares of the
Company.
2. Terms defined elsewhere in this Schedule I of the Articles, unless
otherwise indicated, shall have such meaning in every section
herein.
3. Unless the context clearly requires otherwise, the words "hereof"
"herein" and "hereunder" and words of similar import, when used in
this Schedule I of the Articles, shall refer to this Schedule I of
the Articles as a whole and not to any particular section or
provision; wherever the word "include" "includes" or "including" is
used in any by-law provision, it shall be deemed to be followed by
the words "without limitation" unless clearly indicated otherwise or
required by the Companies Act or this Schedule I of the Articles.
4. The singular includes the plural and the plural includes the
singular; and the masculine gender includes the feminine and neuter
genders.
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5. The merger or consolidation of the Company with or into another
corporation, or the merger or consolidation of any other corporation
with or into the Company, or the voluntary sale, conveyance,
exchange or transfer (for cash, shares of capital, securities or
other consideration) or other disposition of all or substantially
all of the property or assets of the Company shall not be deemed to
be a liquidation, dissolution or winding up of the Company,
voluntary or involuntary.
A. COMMON SHARES
The rights, privileges, restrictions and conditions attaching to the
Common Shares are as follows:
A.1 VOTING RIGHTS:
A1.1 The holders of the Common Shares shall be entitled to receive notice
of and to attend any meeting of the shareholders of the Company
(except meetings at which the holders of a particular class of
shares other than the Common Shares are entitled to vote separately
as a class), (a "General Meeting").
A.l.2 Each holder of Common Shares shall be entitled to exercise one vote
in respect of each Common Share held by that shareholder at the date
of such General Meeting
A.2 DIVIDEND RIGHTS:
A.2.l The holders of the Common Shares shall be entitled to receive,
subject to the rights of the holders of the Preference Shares, out
of profits or surplus available for dividends, such non-cumulative
dividends as the directors may from time to time declare.
A.2.2 The holders of the Common Shares shall be entitled to share in any
dividend declared and paid to the holders of the Common Shares, on a
pro rata basis, in proportion to the number of Common Shares owned
by each holder, (and without reference to the amount contributed by
each holder to the stated capital account maintained in respect of
the Common Shares).
A.3 LIQUIDATION RIGHTS:
A.3.1 In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of the Common
Shares, subject to the rights of the holders of the Preference
Shares, shall be entitled to share in the remaining property and
assets of the Company.
A.3.2 The holders of the Common Shares shall be entitled to share in the
remaining property and assets of the Company, on a pro rata basis,
in proportion to the number of Common Shares owned by each holder,
(and without reference to the amount contributed by each holder to
the stated capital account maintained in respect of the Common
Shares).
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A.4 REPURCHASE RIGHTS:
A.4.1 In the event that a Third Party Offeror makes an offer to acquire
all of the issued and outstanding Common Shares (for a consideration
payable in cash or securities listed on a recognised securities
exchange in the United States of America), and the holders of at
least two-thirds of the Common Shares agree to dispose and transfer
of all of their interests in the Common Shares to the Third Party
Offeror, then after completion of the transfer of at least
two-thirds of the issued and outstanding Common Shares to the Third
Party Offeror and upon notice from the Third party Offeror to the
Company, the Company shall repurchase such Common Shares at the fair
market value thereof.
B. CLASS A PREFERENCE SHARES SERIES 1
The rights, privileges, restrictions and conditions attaching to the
Class A Preference Shares Series 1 are as follows:
B.1 CLASS A PREFERENCE SHARES TO RANK PARI PASSU;
B.1.1 The Class A Preference Shares Series 1 shall rank on a parity with
the Preference Shares of every other series with respect to priority
in the payment of dividends and in the distribution of assets of the
Company in the event of any liquidation, dissolution or winding-up
of the Company or other distribution of assets of the Company among
its shareholders for the purpose of winding-up of its affairs.
B.1.2 In accordance with section 33(3) of the: Companies Act, if the
amount payable on a return of capital in respect the Class A
Preference Shares Series 1 is not paid in full, the shares of all
the Class A Preference Shares Series 1 shall participate on a pro
rata basis, in proportion to the amount contributed by each holder
to the stated capital account maintained in respect of the Class A
Preference Shares Series 1, (and without reference to the number of
shares of the Class A Preference Shares Series 1 owned by each
holder).
B.l.3 No rights, privileges, restrictions and conditions attached to the
Class A Preference Shares Series 1 may confer upon the Class A
Preference Shares Series 1 a priority in respect of dividends or
return of capital over any other series of Preference Shares then
outstanding.
B.2 VOTING RIGHTS:
B.2.1 Except as required by law or pursuant to section B.3.2 of this
Schedule I of these Articles, the holders of the Class A Preference
Shares Series 1 shall not, as such, be entitled to receive notice of
or to attend any General Meeting of the Company or to vote at any
General Meeting.
B.2.2 In addition to the rights of the holders of the Class A Preference
Shares Series 1 to vote as Preferences required by law, the holders
of the Class A Preference Shares Series 1 shall be entitled to
receive notice of and to attend and to vote at any General Meeting
called for the purpose of authorising the dissolution of the Company
or the sale, lease or exchange of all or substantially all the
property of the Company other than in the ordinary course of
business.
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B.2.3 In the event that the holders of the Class A Preference Shares
Series 1 shall be entitled to receive notice of and to attend, and
to vote at any General Meeting either as required by law or under
section B.3.2, each holder of the Class A Preference Shares Series 1
shall be entitled to exercise one vote in respect of each the Class
A Preference Shares Series 1 held by that shareholder at the date of
such General Meeting.
B.3 SPECIAL CLASS AUTHORlSATlON:
B.3.1.1 In addition to the authorisation by special resolution, the holders
of the Class A Preference Shares Series 1 as a class, shall be
entitled to vote separately, as a class upon a proposal:
(a) to increase any maximum number of authorised shares of a
class having rights or privileges, equal or superior to
the Class A Preference Shares Series 1;
(b) to effect an exchange, reclassification or cancellation
of all or any part of the Class A Preference Shares
Series 1;
(c) to add, change or remove the rights, privileges,
restrictions or conditions attaching to the Class A
Preference Shares Series 1, including in particular, the
addition, removal or prejudicial change in respect of
the redemption rights, the reduction or removal of the
dividend or liquidation preference attaching to the
Class A Preference Shares Series 1, the addition,
removal or prejudicial change in respect of the
conversion privileges, options, voting transfers,
preemptive rights, rights to acquire shares or
debentures of the Company or sinking fund provisions;
(d) to increase the rights or privileges of any class of
shares having rights or privileges, equal or superior to
the Class A Preference Shares Series 1, or to make any
class of shares having rights or privileges, inferior to
the Class A Preference Shares, equal or superior to the
Class A Preference Shares Series 1;
(e) to create a new class of shares equal or superior to the
Class A Preference Shares Series 1;
(f) to effect an exchange or to create a right of exchange
of all or part of the shares of another class into the
Class A Preference Shares Series 1; and
(g) to constrain the issue or transfer of Class A Preference
Shares Series l or to extend or remove such constraint;
and no such action may be made by the Company without,
but may be made with, the authorization of the holders
of the Class A Preference Shares Series 1.
B.3.1.2 Any increase or decrease in the number of authorized Class A
Preference Shares Series 1, may be made by the Company without the
authorization of the holders of the Class A Preference Shares Series
1, as a class.
B.3.2.1 The holders of the Class A Preference Shares Series 1, shall not be
entitled to vote separately as a series in respect of any proposal,
described in section B.3.1.1, unless the Class A Preference Shares
Series 1 is affected by the proposed amendment in a manner different
from other series of any class of Preference Shares.
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B.3.2.2 Where the holders of the Class A Preference Shares Series 1, shall
be entitled to vote separately as a series in respect of any
proposal, the provisions of section B.3.3, shall apply.
B.3.3.1 The authorization of the holders of the Class A Preference Shares
Series 1 may be given by a resolution:
(i) signed by all of the holders of the Class A Preference
Shares Series 1; or
(ii) passed by the affirmative vote of at least two thirds
(2/3) majority of the votes cast at a meeting of the
holders of the outstanding Class A Preference Shares
Series 1 duly called for that purpose upon at least
twenty-one (21) days notice.
B.3.3.2 Each holder of a Class A Preference Share Series 1 shall be entitled
to one vote at any such meeting in respect of each Class A
Preference Share Series 1 held and the presence in person or by
proxy of the holders of at least twenty-five per cent (25%) of the
Class A Preference Shares Series 1 then outstanding shall constitute
a quorum for any such meeting;
B.3.3.3 If at any meeting a quorum is not present within thirty (30) minutes
after the time appointed for such meeting it shall be adjourned to
such date not less than fifteen (15) days thereafter and to such
time and place as may be designated by the chairman of the meeting
and not less than seven (7) days notice shall be given of such
adjourned meeting.
B.3.3.4 At an adjourned meeting, the holders of the Class A Preference
Shares Series 1 present or represented by proxy shall constitute a
quorum and a resolution passed by at least two thirds (2/3) of the
votes cast at such adjourned meeting shall constitute the
authorization of the holders of the Class A Preference Shares Series
1.
B.3.3.5 Subject to the foregoing, every such meeting shall be called and
held in accordance with the by-laws of the Company.
B.4 DIVIDEND RIGHTS:
B.4.1.1 Subject to the Companies Act, and this section B.4.1, the holders of
the Class A Preference Shares Series 1 shall be entitled to receive,
and the Company shall pay thereon, out of realised profits or
surplus of the Company available for dividends, a fixed cumulative
preferential dividend equal to 10% of the amount maintained in the
stated capital account in respect of the Class A Preference Shares
Series 1 owned by such holder.
B.4.1.2 Dividends shall accrue on the Class A Preference Shares Series 1 and
the first payment shall be payable on April 1, 2004, and shall
thereafter be payable to the holders of the Class A Preference
Shares Series 1, quarterly, on the last business day of each
calendar quarter (or if such date is not a business day on the next
following business day) (a "Dividend Payment Date").
B.4.2 The holders of the Class A Preference Shares Series 1 shall be
entitled to share in any dividend declared and paid to the holders
of the Class A Preference Shares Series 1, on a pro rata basis, in
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proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class A Preference
Shares Series 1, (and without reference to the number of shares of
the Class A Preference Shares Series 1 owned by each holder).
B.4.3 The holders of the Class A Preference Shares Series 1 shall be
entitled to receive the dividends payable to the Class A Preference
Shares Series 1, on parity with the payment to the holders of any
other series of Preference Shares having regards to their respective
dividend entitlements.
B.4.4 The holders of the Class A Preference Shares Series 1, shall be
entitled to receive dividends in priority to any payment of
dividends on the Common Shares.
B.5 LIQUIDATION RIGHTS:
B.5.1 In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of the Class
A Preference Shares Series 1, shall be entitled to receive the Class
A Preference Shares Series 1 Series Liquidation Amount.
B.5.2 The holders of the Class A Preference Shares Series 1 shall be
entitled to share in the Class A Preference Shares Series 1 Series
Liquidation Amount, on a pro rata basis, in proportion to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class A Preference Shares Series 1, (and without
reference to the number of shares of the Class A Preference Shares
Series 1 owned by each holder).
B.5.3 After payment of the Class A Preference Shares Series 1 Series
Liquidation Amount, the holders of the Class A Preference Shares
Series 1 shall not be entitled to any further participation in the
assets of the Company.
B.5.4 The holders the Class A Preference Shares Series 1 shall be entitled
to receive the Class A Preference Shares Series 1 Series Liquidation
Amount, on parity with the payment to the holders of every other
series of Preference Shares of their respective Series Liquidation
Amounts.
B.5.5 The holders of the Class A Preference Shares Series 1 shall be
entitled to receive the Class A Preference Shares Series 1 Series
Liquidation Amount, on parity with the payment to the holders of any
other series of Preference Shares having regards to their respective
Series Liquidation Amounts, but in priority to any distribution of
the remaining property and assets of the Company to the holders of
the Common Shares.
B.6 REDEMPTION RIGHTS:
B.6.1.1 Subject to the provisions of the Companies Act, the shares of the
Class A Preference Shares Series 1 shall be redeemable.
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B.6.1.2.1 The Company may redeem the whole or any part of the Class A
Preference Shares Series 1, on giving notice to the holders of the
Class A Preference Shares Series 1, as provided in this section B.6.
B.6.1.2.2 The Class A Preference Shares Series 1 shall be redeemable at the
option of the holders of the Class A Preference Shares Series 1, as
provided in this section B.6.
B.6.1.3 The shares of the Class A Preference Shares Series 1 shall be
redeemed on payment by the Company (in cash, Property, or property),
of the Class A Preference Shares Series 1 Series Individual Share
Redemption Amount for each share being redeemed of the Class A
Preference Shares Series 1.
B.6.1.4 Notwithstanding any other provision herein contained, the Company
may not make any payment to redeem any Class A Preference Shares
Series 1 issued by it if there are reasonable grounds for believing
that:
(a) the Company is, or would after that payment, be unable
to pay its liabilities as they become due; or
(b) the realizable value of the Company's assets would after
the payment be less than:
(i) the aggregate of its liabilities, and
(ii) the aggregate of the amounts that would be
required to be paid to the holders of shares
that have a right to be paid in priority to
or on parity with the holders the Class A
Preference Shares Series 1 (on the
redemption of the shares of the Class A
Preference Shares Series 1, or on a
liquidation of the Company).
REDEMPTION BY ELECTION OF COMPANY:
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B.6.2.1 At any time after the tenth (10th) anniversary of the first issue of
the Class A Preference Shares Series 1. the Company may, upon giving
notice as hereinafter provided, redeem the whole or any part of a
given series of the then outstanding Class A Preference Shares
Series 1 on payment of the Class A Preference Shares Series 1
Aggregate Series Redemption Amount on that Exercise of Redemption.
B.6.2.2 The holders of the Class A Preference Shares Series 1 being
redeemed, shall be entitled to share the Class A Preference Shares
Series 1 Series Aggregate Redemption Amount on a pro rata basis, in
proportion to the number of shares of the Class A Preference Shares
Series 1 owned by each holder, (and without reference to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class A Preference Shares Series 1).
B.6.2.3 The Company shall give not less than three hundred and sixty five
(365) days notice in writing, (the "Redemption Notice") of any
redemption by delivering the Redemption Notice to the registered
holders of the Class A Preference Shares Series 1 to be redeemed.
unless the holders of the Class A Preference Shares Series 1 to be
redeemed waive any such notice, which waiver, whether given before
or after the redemption, will cure any default in the giving of such
notice.
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B.6.2.4 Each Redemption Notice shall be in the form prescribed by the
Company, and shall state:
(a) the redemption date;
(b) the number of shares of the Class A Preference Shares
Series 1 to be redeemed;
(c) the Class A Preference Shares Series 1 Individual Share
Redemption Amount; and
(d) the Class A Preference Shares Series 1 Aggregate
Redemption Amount (in respect of that Exercise of
Redemption).
B.6.2.5 On the Redemption Notice being duly given by the Company and, within
three (3) days after the date fixed for redemption, the Class A
Preference Shares Series 1 Aggregate Redemption Amount in respect of
that Exercise of Redemption, shall be paid by a re-assignment of the
property or Property or where cash is being paid, by wire transfer
to the bank accounts specified for such payment by the holders of
the Class A Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, the Class A Preference
Shares Series 1 Aggregate Redemption Amount in respect of that
Exercise of Redemption, shall be deposited with any trust Company or
bank licensed under the Financial Institutions Act, or any
equivalent legislation in any other jurisdiction, as specified in
the Redemption Notice. The holders of the Class A Preference Shares
Series 1 shall thereafter have no right of action or claim against
the Company in respect of the Class A Preference Shares Series 1
redeemed or for the Class A Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the Class A Preference Shares Series 1 redeemed, to
receive payment for them out of the amounts so deposited.
B.6.2.6 The certificates representing the Class A Preference Shares Series 1
redeemed shall be void as of the date of redemption except to obtain
payment out of the Class A Preference Shares Series 1 Series
Aggregate Redemption Amount Without limiting the foregoing, upon
delivery to the holders of the Class A Preference Shares Series 1
being redeemed of the Class A Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption, all rights of the holders of the Class A Preference
Shares Series 1 called for redemption shall terminate, unless
payment out of the Class A Preference Shares Series 1 Series
Aggregate Redemption Amount is not made upon presentation of a
certificate or certificates in accordance with the foregoing
provisions, in which case the rights of the holders of Class A
Preference Shares Series 1 shall remain unaffected.
REDEMPTION BY ELECTION OF SHAREHOLDERS
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B.6.3.1 At any time after the first issue of the Class A Preference Shares
Series 1, the holder of the Class A Preference Shares Series 1 shall
be entitled to require the Company to redeem, the whole or any part
of that holder's Class A Preference Shares Series 1 by giving not
less than fifteen working days notice in writing (the "Retraction
Notice"), in accordance with this section B.6.3.
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B.6.3.2 The Retraction Notice shall be signed by the holder of the Class A
Preference Shares Series 1 who is required to be redeemed.
B.6.3.3 Any Retraction Notice delivered to the Company, shall be sent by
prepaid mail, electronic mail, telefax or personal delivery to the
registered office or in the event that the Head Office is at a
different address than the registered. office, the principal place
of business of the Company (the "Head Office"), for the attention of
the President (or other chief executive officer) of the Company.
B.6.3.4 The Company shall be entitled to rely on a Retraction Notice in the
form prescribed by the Company, and purporting to be given by or on
behalf of the holder of the Class A Preference Shares Series l or,
in the case of a corporate holder, by (i) any two officers, (ii) any
two directors, or (iii) anyone officer together with anyone director
of such corporation. The Company may waive any notice required to be
given hereunder and such waiver, whether given before or after the
redemption, shall cure any default in giving such notice. The
Company shall be entitled to rely on any form of certificate
accompanying the Retraction Notice and shall not be required to
investigate the bona fides of such certificate.
B.6.3.5 Upon receipt of Retraction Notice, the Company shall pay to the
holders of the Class A Preference Shares Series 1 being redeemed,
the Class A Preference Shares Series 1 Series Aggregate Redemption
Amount in respect of that Exercise of Redemption within ten (10)
days of its receipt of the Retraction Notice (or if a later date for
redemption is fixed in the Retraction Notice, the date fixed for
redemption in the Retraction Notice), by a reassignment of the
property or Property or where cash is being paid, by wire transfer
to the bank accounts specified for such payment by the holders of
the Class A Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, that part of the Class A
Preference Shares Series 1 Series Aggregate Redemption Amount for
the Class A Preference Shares redeemed shall be deposited with any
trust Company or bank licensed under the Financial Institutions Act,
or any equivalent legislation in any other jurisdiction, as
specified in the Retraction Notice. The holders of the Class A
Preference Shares Series 1 shall thereafter have no right of action
or claim against the Company in respect of the Class A Preference
Shares Series 1 redeemed or for the Class A Preference Shares Series
1 Series Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the redeemed Class A Preference Shares Series 1, to
receive payment for them out of the amounts so deposited. The
holders of the Class A Preference Shares Series 1 shall not be
entitled to or have any claim for interest against the Company or
any other person in respect of any amounts so deposited.
B.6.3.6 From and after the date specified for redemption by the holders of
the Class A Preference Shares Series 1, all rights of the holders of
the Class A Preference Shares Series 1 called for redemption shall
terminate, unless payment out of the Class A Preference Shares
Series 1 Series Aggregate Redemption Amount is not made upon
presentation of a certificate or certificates in accordance with the
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foregoing provisions, in which case the rights of the holders of the
Class A Preference Shares Series 1 shall remain unaffected.
C. CLASS B PREFERENCE SHARES SERIES 1
The rights, privileges, restrictions and conditions attaching to the
Class B Preference Shares Series 1 are as follows:
C.1 CLASS B PREFERENCE SHARES SERIES 1 TO RANK PARI PASSU;
C.1.1 The Class B Preference Shares Series 1 shall rank on a parity with
the Preference Shares of every other series with respect to priority
in the payment of dividends and in the distribution of assets of the
Company in the event of any liquidation, dissolution or winding-up
of the Company or other distribution of assets of the Company among
its shareholders for the purpose of winding-up of its affairs.
C.1.2 In accordance with section 33(3) of the Companies Act, if the amount
payable on a return of capital in respect of the Class B Preference
Shares Series 1 is not paid in full, the shares of all the Class B
Preference Shares Series 1 shall participate on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class B Preference
Shares Series 1, (and without reference to the number of shares of
the Class B Preference Shares Series 1 owned by each holder).
C.1.3 No rights, privileges, restrictions and conditions attached to any
Class B Preference Shares Series 1 may confer upon the Class B
Preference Shares Series 1 a priority in respect of dividends or
return of capital over any other series of Preference Shares then
outstanding.
C.2 VOTING RIGHTS:
C.2.1 Except as required by law or pursuant to section C.3.2 of this
Schedule I of these Articles, the holders of the Class B Preference
Shares Series 1 shall not, as such, be entitled to receive notice of
or to attend any General Meeting of the Company or to vote at any
General Meetings.
C.2.2 In addition to the rights of the holders of the Class B Preference
Shares Series 1 to vote as Preferences required by law, the holders
of the Class B Preference Shares Series 1 shall be entitled to
receive notice of and to attend and to vote at any General Meeting
called for the purpose of authorising the dissolution of the Company
or the sale, lease or exchange of all or substantially all the
property of the Company other than in the ordinary course of
business.
C.2.3 In the event that the holders of the Class B Preference Shares
Series 1 shall be entitled to receive notice of and to attend, and
to vote at any General Meeting either as required by law or under
section C.3.2, each holder of the Class B Preference Shares Series 1
shall be entitled to exercise one vote in respect of each the Class
B Preference Shares Series 1 held by that shareholder at the date of
such General Meeting.
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C.3 SPECIAL CLASS AUTHORISATION:
C.3.1.1 In addition to the authorisation by special resolution, the holders
of the Class B Preference Shares Series 1 as a class, shall be
entitled to vote separately, as a class upon a proposal:
(a) to increase any maximum number of authorised shares of a
class having rights or privileges, equal or superior to
the Class B Preference Shares Series 1;
(b) to effect an exchange, reclassification or cancellation
of all or any part of the Class B Preference Shares
Series 1;
(c) to, add, change or remove the rights, privileges,
restrictions or conditions attaching to the Class B
Preference Shares Series 1, including in particular, the
addition, removal or prejudicial change in respect of
the redemption rights, the reduction or removal of the
dividend or liquidation preference attaching to the
Class B Preference Shares Series 1, the addition,
removal or prejudicial change in respect of the
conversion privileges, options, voting transfers,
pre-emptive rights, rights to acquire shares or
debentures of the Company or sinking fund provisions;
(d) to increase the rights or privileges of any class of
shares having rights or privileges, equal or superior to
the Class B Preference Shares Series 1, or to make any
class of shares having rights or privileges, inferior to
the Class C Preference Shares Series 1, equal or
superior to the Class C Preference Shares Series 1;
(e) to create a new class of shares equal or superior to the
Class B Preference Shares Series 1;
(f) to effect an exchange or to create a right of exchange
of all or part of the shares of another class into Class
B Preference Shares Series 1; and
(g) to constrain the issue or transfer of Class B Preference
Shares Series 1 or to extend or remove such constraint;
and no such action may be made by the Company without,
but may be made with, the authorisation of the holders
of the Class B Preference Shares Series 1.
C.3.1.2 Any increase or decrease in the number of authorised Class B
Preference Shares Series 1, may be made by the Company without the
authorisation of the holders of the Class B Preference Shares Series
1, as a class.
C.3.2.1 The holders of the Class B Preference Shares Series 1, shall not be
entitled to vote separately as a series in respect of any proposal,
described in section C.3.1.1, unless the Class B Preference Shares
Series 1 is affected by the proposed amendment in a manner different
from other series of any class of Preference Shares.
C.3.2.2 Where the holders of the Class B Preference Shares Series 1, shall
be entitled to vote separately as a series in respect of any
proposal, the provisions of section C.3.3, shall apply.
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C.3.3.1 The authorisation of the holders of the Class B Preference Shares
Series 1 may be given by a resolution:
(i) signed by all of the holders of Class B Preference
Shares Series 1; or
(ii) passed by the affirmative vote of at least two thirds
(2/3) majority of the votes cast at a meeting of the
holders of the outstanding Class B Preference Shares
Series 1 duly called for that purpose upon at least
twenty-one (21) days notice.
C.3.3.2 Each holder of a Class B Preference Shares Series 1 shall be
entitled to one vote at any such meeting in respect of each Class B
Preference Share Series 1 held and the presence in person or by
proxy of the holders of at least twenty-five per cent (25%) of the
Class B Preference Shares Series 1 then outstanding shall constitute
a quorum for any such meeting;
C.3.3.3 If at any meeting a quorum is not present within thirty (30) minutes
after the time appointed for such meeting it shall be adjourned to
such date not less than fifteen (15) days thereafter and to such
time and place as may be designated by the chairman of the meeting
and not less than seven (7) days notice shall be given of such
adjourned meeting.
C.3.3.4 At an adjourned meeting, the holders of Class B Preference Shares
Series 1 present or represented by proxy shall constitute a quorum
and a resolution passed by at least two thirds (2/3) of the votes
cast at such adjourned meeting shall constitute the authorisation of
the holders of the Class B Preference Shares Series 1.
C.3.3.5 Subject to the foregoing, every such meeting shall be called and
held in accordance with the by-laws of the Company.
C.4 DIVIDEND RIGHTS:
C.4.1.1 Subject to the Companies Act, and this section C.4.1, the holders of
the Class B Preference Shares Series 1 shall be entitled to receive,
and the Company shall pay thereon, out of realized profits or
surplus of the Company available for dividends, a fixed cumulative
preferential dividend equal to 10% of the amount maintained in the
stated capital account in respect of the Class B Preference Shares
Series 1 owned by such holder.
C.4.1.2 Dividends shall accrue on the Class B Preference Shares Series 1 and
the first payment shall be payable on April 1, 2004, and shall
thereafter shall be payable to the holders of the Class B Preference
Shares Series 1, quarterly, on the last business day of each
calendar quarter (or if such date is not a business day on the next
following business day) (a "Dividend Payment Date").
C.4.2 The holders of the Class B Preference Shares Series 1 shall be
entitled to share in any dividend declared and paid to the holders
of the Class B Preference Shares Series 1, on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class B Preference
Shares Series 1, (and without reference to the number of shares of
the Class B Preference Shares Series 1 owned by each holder).
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C.4.3 The holders of the Class B Preference Shares Series 1 shall be
entitled to receive the dividends payable to the Class B Preference
Shares Series 1, on parity with the payment to the holders of any
other series of Preference Shares having regards of their respective
dividend entitlements.
C.4.4 The holders of the Class B Preference Shares Series 1, shall be
entitled to receive dividends in priority to any payment of
dividends on the Common Shares.
C.5 LIQUIDATION RIGHTS:
C.5.1 In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of the Class
B Preference Shares Series 1, shall be entitled to receive the Class
B Preference Shares Series 1 Series Liquidation Amount.
C.5.2 The holders of the Class B Preference Shares Series 1 shall be
entitled to share in the Class B Preference Shares Series 1 Series
Liquidation Amount, on a pro rata basis, in proportion to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class B Preference Share Series 1, (and without
reference to the number of shares of the Class B Preference Shares
Series 1 owned by each holder).
C.5.3 After payment of the Class B Preference Shares Series 1 Series
Liquidation Amount, the holders of the Class B Preference Shares
Series 1 shall not be entitled to any further participation in the
assets of the Company.
C.5.4 The holders of the Class B Preference Shares Series 1 shall be
entitled to receive the Class B Preference Shares Series 1 Series
Liquidation Amount, in parity with the payment to the holders of
every other series of Preference Shares of their respective Series
Liquidation Amounts.
C.5.5 The holders of the Class B Preference Shares Series 1 shall be
entitled to receive the Class B Preference Shares Series 1 Series
Liquidation Amount, on parity with the payment to the holders of
every other series of Preference Shares having regards to their
respective Series Liquidation Amounts, but in priority to any
distribution of the remaining property and assets of the Company to
the holders of the Common Shares.
C.6 REDEMPTION RIGHTS:
C.6.1.1 Subject to the provisions of the Companies Act, the shares of the
Class B Preference Shares Series 1 shall be redeemable.
C.6.1.2.1 The Company may redeem the whole or any part of the Class B
Preference Shares Series 1, on giving notice to the holders of the
Class B Preference Share Series 1, as provided in this section C.6.
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C.6.1.2.2 The Class B Preference Shares Series 1 shall be redeemable at the
option of the holders of the Class B Preference Shares Series 1, as
provided in this section C.6.
C.6.1.3 The shares of the Class B Preference Shares Series 1 shall be
redeemed on payment by the Company (in cash or property), of the
Class B Preference Shares Series 1 Series Individual Share
Redemption Amount for each share being redeemed of the Class B
Preference Shares Series 1.
C.6.1.4 Notwithstanding any other provision herein contained, the Company
may not make any payment to redeem the Class B Preference Shares
Series 1 issued by it if there are reasonable grounds for believing
that:
(a) the Company is, or would after that payment, be unable
to pay its liabilities as they become due; or
(b) the realisable value of the Company's assets would after
the payment be less than:
(i) the aggregate of its liabilities; and
(ii) the aggregate of the amounts that would be
required to be paid to the holders of shares
that have a right to be paid in priority to
or on parity with the holders of the Class B
Preference Shares Series 1 (on the
redemption of the shares of the Class B
Preference Shares Series 1, or on a
liquidation of the Company).
REDEMPTION BY ELECTION OF COMPANY:
----------------------------------
C.6.2.1 At any time after the tenth (10th) anniversary of the first issue of
the Class B Preference Shares Series 1, the Company may, upon giving
notice as hereinafter provided, redeem the whole or any part of a
given series of the then outstanding Class B Preference Shares
Series 1 on payment of the Class B Preference Shares Series 1
Aggregate Series Redemption Amount for the Class B Preference Shares
Series 1 on an Exercise of Redemption.
C.6.2.2 The holders of the Class B Preference Shares Series 1 being
redeemed, shall be entitled to share the Class B Preference Shares
Series Aggregate Redemption Amount on a pro rata basis, in
proportion to the number of shares of the Class B Preference Shares
Series 1 owned by each holder, (and without reference to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class B Preference Shares Series 1).
C.6.2.3 The Company shall give not less than three hundred and sixty five
(365) days notice in writing (the "Redemption Notice") of any
redemption by delivering the Redemption Notice to the registered
holders of the Class B Preference Shares Series 1 to be redeemed,
unless the holders of the Class B Preference Shares Series 1 to be
redeemed waive any such notices which waiver, whether given before
or after the redemption, will cure any default in the giving of such
notice.
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C.6.2.4 Each Redemption Notice shall be in the form prescribed by the
Company, and shall state:
(a) the redemption date;
(b) the number of shares of the Class B Preference Shares
Series 1 to be redeemed;
(c) the Class B Preference Shares Series 1 Individual Share
Redemption Amount; and
(d) the Class B Preference Shares Series 1 Aggregate
Redemption Amount (in respect of that Exercise of
Redemption).
C.6.2.5 On the Redemption Notice being duly given by the Company and, within
three (3) days after the date fixed for redemption, the Class B
Preference Shares Series 1 Aggregate Redemption Amount in respect of
that Exercise of Redemption, by a re-assignment of the property or
Property or where cash is being paid, by wire transfer to the bank
accounts specified for such payment by the holders of the Class B
Preference Shares Series 1 being redeemed. In the event that no such
account is specified, or that such funds remain uncleared and are
returned to the Company, the Class B Preference Shares Series 1
Aggregate Redemption Amount in respect of that Exercise of
Redemption, shall be deposited with any trust company or bank
licensed under the Financial Institutions Act, or any equivalent
legislation in any other jurisdiction, as specified in the
Redemption Notice. The holders of the Class B Preference Shares
Series 1 shall thereafter have no right of action or claim against
the Company in respect of the Class B Preference Shares Series 1
redeemed or for the Class B Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the Class B Preference Shares Series 1 redeemed, to
receive payment for them out of the amounts so deposited.
C.6.2.6 The certificates representing the Class B Preference Shares Series 1
redeemed shall be void as of the date of redemption except to obtain
payment out of the Class B Preference Shares Series 1 Series
Aggregate Redemption Amount. Without limiting the foregoing, upon
delivery to the holders of the Class B Preference Shares Series 1
being redeemed of the Class B Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption, all rights of the holders of the Class B Preference
Shares Series 1 called for redemption shall terminate, unless
payment out of the Class B Preference Shares Series 1 Series
Aggregate Redemption Amount is not made upon presentation of a
certificate or certificates in accordance with the foregoing
provisions, in which case the rights of the holders of the Class B
Preference Shares Series 1 shall remain unaffected.
REDEMPTION BY ELECTION OF SHAREHOLDER
-------------------------------------
C.6.3.1 At any time after the first issue of the Class B Preference Shares
Series 1, the holder of the Class B Preference Shares Series 1 shall
be entitled to require the Company to redeem, the whole or any part
of that holder's shares of the Class B Preference Shares Series 1,
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by giving not less than three hundred and fifteen (315) working days
notice in writing (the "Retraction Notice"), in accordance with this
section C.6.3.
C.6.3.2 The Retraction Notice shall be signed by the holder of the Class B
Preference Shares Series 1 who is required to be redeemed.
C.6.3.3 Any Retraction Notice delivered to the Company, shall be sent by
prepaid mail, electronic mail, telefax or personal delivery to the
registered office or in the event that the Head Office is at a
different address than the registered office, the principal place of
business of the Company (the "Head Office"), for the attention of
the President (or other chief executive officer) of the Company.
C.6.3.4 The Company shall be entitled to rely on a Retraction Notice in the
form prescribed by the Company, and purporting to be given by or on
behalf of the holder of the Class B Preference Shares Series 1 or,
in the case of a corporate holder, by (i) any two officers, (ii) any
two directors, or (iii) any one officer together with any one
director of such corporation. The Company may waive any notice
required to be given hereunder and such waiver, whether given before
or after the redemption, shall cure any default in giving such
notice. The Company shall be entitled to rely on any form of
certificate accompanying the Retraction Notice and shall not be
required to investigate the bona fides of such certificate.
C.6.3.5 Upon receipt of Retraction Notice, the Company shall pay to the
holders of the Class B Preference Shares Series 1 being redeemed,
the Class B Preferences Shares Series 1 Series Aggregate Redemption
Amount in respect of that Exercise of Redemption within ten (10)
days of its receipt of the Retraction Notice (or if a later date for
redemption is fixed in the Retraction Notice, the date fixed for
redemption in the Retraction Notice), by a re-assignment of the
property or Property or where cash is being paid, by wire transfer
to the bank accounts specified for such payment by the holders of
the Class B Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, that part of the Class B
Preference Shares Series 1 Series Aggregate Redemption Amount for
the Class B Preference Shares redeemed shall be deposited with any
trust Company or bank licensed under the Financial Institutions Act,
or any equivalent legislation in any other jurisdiction, as
specified in the Retraction Notice. The holders of the Class B
Preference Shares Series 1 shall thereafter have no right of action
or claim against the Company in respect of the Class B Preference
Shares Series 1 redeemed or for the Class B Preference Shares Series
1 Series Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the redeemed Class B Preference Shares Series 1, to
receipt payment for them out of the amounts so deposited. The
holders of the Class B Preference Shares Series 1 shall not be
entitled to or have any claim for interest against the Company or
any other person in respect of any amounts so deposited.
C.6.3.6 From and after the date specified for redemption by the holders of
the Class B Preference Shares Series 1, all rights of the holders of
the Class B Preference Shares Series 1 called for redemption shall
C-18
terminate, unless payment out of the Class B Preference Shares
Series 1 Series Aggregate Redemption Amount is not made upon
presentation of a certificate or certificates in accordance with the
foregoing provisions, in which case the rights of the holders of the
Class B Preference Shares Series 1 shall remain unaffected.
D. CLASS C PREFERENCE SHARES SERIES 1
The rights, privileges, restrictions and conditions attaching to the
Class C Preference Shares Series 1 are as follows:
D.1 CLASS C PREFERENCE SHARES TO RANK PARI PASSU:
D.1.1 The Class C Preference Shares Series 1 are shall rank on a parity
with the Preference Shares of every other series with respect to
priority in the payment of dividends and in the distribution of
assets of the Company in the event of any liquidation, dissolution
or winding-up of the Company or other distribution of assets of the
Company among its shareholders for the purpose of winding-up of its
affairs.
D.1.2 In accordance with section 33(3) of the Companies Act, if the amount
payable on a return of capital in respect the Class C Preference
Shares Series 1 is not paid in full, the shares of all the Class C
Preference Shares Series 1 shall participate on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class C Preference
Shares Series 1, (and without reference to the number of shares of
the Class C Preference Shares Series 1 owned by each holder).
D.1.3 No rights, privileges, restrictions and conditions attached to the
Class C Preference Shares Series 1 may confer upon the Class C
Preference Shares Series 1 a priority in respect of dividends or
return of capital over any other series of Preference Shares then
outstanding.
D.2 VOTING RIGHTS:
D.2.1 Except as required by law or pursuant to section D.3.2 of this
Schedule 1 of these Articles, the holders of the Class C Preference
Shares Series 1 shall not, as such, be entitled to receive notice of
or to attend any General Meeting of the Company or to vote at any
General Meeting.
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D.2.2 In addition to the rights of the holders of the Class C Preference
Shares Series 1 to vote as Preferences required by law, the holders
of the Class C Preference Shares Series 1 shall be entitled to
receive notice of and to attend and to vote at any General Meeting
called for the purpose of authorising the dissolution of the Company
or the sale, lease or exchange of all or substantially all the
property of the Company other than in the ordinary course of
business.
D.2.3 In the event that the holders of the Class C Preference Shares
Series 1 shall be entitled to receive notice of and to attend, and
to vote at any General Meeting either as required by law or under
section D.3.2, each holder of the Class C Preference Shares Series 1
shall be entitled to exercise one vote in respect of each the Class
C Preference Shares Series 1 held by that shareholder at the date of
such General Meeting.
D.3 SPECIAL CLASS AUTHORISATION:
D.3.1.1 In addition to the authorisation by special resolution, the holders
of the Class C Preference Shares Series 1 as a class, shall be
entitled to vote separately, as a class upon a proposal:
(a) to increase any maximum number of authorised shares of a
class having rights or privileges, equal or superior to
the Class C Preference Shares Series 1;
(b) to effect an exchange, reclassification or cancellation
of all or any part of the Class C Preference Shares
Series 1;
(c) to, add, change or remove the rights, privileges,
restrictions or conditions attaching to the Class C
Preference Shares Series 1, including in particular, the
addition, removal or prejudicial change in respect of
the redemption rights, the reduction or removal of the
dividend or liquidation preference attaching to the
Class C Preference Shares Series 1, the addition,
removal or prejudicial change in respect of the
conversion privileges, options, voting transfers,
pre-emptive rights, rights to acquire shares or
debentures of the Company or sinking fund provisions;
(d) to increase the rights or privileges of any class of
shares having rights or privileges, equal or superior to
the Class C Preference Shares Series 1, or to make any
class of shares having rights or privileges, inferior to
the Class C Preference Shares Series 1, equal or
superior to Class C Preference Shares Series 1;
(e) to create a new class of shares equal or superior to the
Class C Preference Shares Series 1;
(f) to effect an exchange or to create a right of exchange
of all or part of the shares of another class into the
Class C Preference Shares Series 1; and
(g) to constrain the issue or transfer of Class C Preference
Shares Series 1 or to extend or remove such constraint;
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and no such action may be made by the Company without, but may be
made with, the authorisation of the holders of the Class C
Preference Shares Series 1.
D.3.1.2 Any increase or decrease in the number of authorised Class C
Preference Shares Series 1, may be made by the Company without the
authorisation of the holders of the Class C Preference Shares Series
1, as a class.
D.3.2.1 The holders of the Class C Preference Shares Series 1, shall not be
entitled to vote separately as a series in respect of any proposal,
described in section D.3.1.1, unless the Class C Preference Shares
Series 1 is affected by the proposed amendment in a manner different
from other series of any class of Preference Shares.
D.3.2.2 Where the holders of the Class C Preference Shares Series 1, shall
be entitled to vote separately as a series in respect of any
proposal, the provisions of section D.3.3, shall apply.
D.3.3.1 The authorisation of the holders of the Class C Preference Shares
Series 1 may be given by a resolution:
(i) signed by all of the holders of the Class C Preference
Shares Series 1; or
(ii) passed by the affirmative vote of at least two thirds
(2/3) majority of the votes cast at a meeting of the
holders of the outstanding Class C Preference Shares
Series 1 duly called for that purpose upon at least
twenty-one (21) days notice.
D.3.3.2 Each holder of a Class C Preference Share Series 1 shall be entitled
to one vote at any such meeting in respect of each Class C
Preference Share Series 1 held and the presence in person or by
proxy of the holders of at least twenty-five per cent (25%) of the
Class C Preference Shares Series 1 then outstanding shall constitute
a quorum for any such meeting.
D.3.3.3 If at any meeting a quorum is not present within thirty (30) minutes
after the time appointed for each meeting it shall be adjourned to
such date not less than fifteen (15) days thereafter and to such
time and place as may be designated by the chairman of the meeting
and not less than seven (7) days notice shall be given of such
adjourned meeting.
D.3.3.4 At an adjourned meeting, the holders of the Class C Preference
Shares Series 1 present or represented by proxy shall constitute a
quorum and a resolution passed by at least two thirds (2/3) of the
votes cast at such adjourned meeting shall constitute the
authorisation of the holders of the Class C Preference Shares Series
1.
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D.3.3.5 Subject to the foregoing, every such meeting shall be called and
held in accordance with the by-laws of the Company.
D.4 DIVIDEND RIGHTS:
D.4.1.1 Subject to the Companies Act, and this section D.4.1, the holders of
the Class C Preference Shares Series 1 shall be entitled to receive,
and the Company shall pay thereon, out of realised profits or
surplus of the Company available for dividends, a fixed cumulative
preferential dividend equal to 10% of the amount maintained in the
stated capital account in respect of the Class C Preference Shares
Series 1 owned by such holder.
D.4.1.2 Dividends shall accrue on the Class C Preference Shares Series 1 and
the first payment shall be payable on April 1, 2004, and shall
thereafter be payable to the holders of the Class C Preference
Shares Series 1, quarterly, on the last business day of each
calendar quarter (or if such date is not a business day on the next
following business day) (a "Dividend Payment Date").
D.4.2 The holders of the Class C Preference Shares Series 1 shall be
entitled to share in any dividend declared and paid to the holders
of the Class C Preference Shares Series 1, on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of Class C Preference Shares
Series 1, (and without reference to the number of shares of the
Class C Preference Shares Series 1 owned by each holder).
D.4.3 The holders of the Class C Preference Shares Series 1 shall be
entitled to receive the dividends payable to the Class C Preference
Shares Series 1, on parity with the payment to the holders of every
other series of Preference Shares having regards to their respective
dividend entitlements.
D.4.4 The holders of the Class C Preference Shares Series 1, shall be
entitled to receive dividends in priority to any payment of
dividends on the Common Shares.
D.5 LIQUIDATION RIGHTS:
D.5.1 In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of the Class
C Preference Shares Series 1, shall be entitled to receive the Class
C Preference Shares Series 1 Series Liquidation Amount.
D.5.2 The holders of the Class C Preference Shares Series 1 shall be
entitled to share in the Class C Preference Shares Series 1 Series
Liquidation Amount, on a pro rata basis, in proportion to the amount
C-22
contributed by each holder to the stated capital account maintained
in respect of the Class C Preference Shares Series 1, (and without
reference to the number of shares of the Class C Preference Shares
Series 1 owned by each holder).
D.5.3 After payment of the Class C Preference Shares Series 1 Series
Liquidation Amount, the holders of the Class C Preference Shares
Series 1 shall not be entitled to any further participation in the
assets of the Company.
D.5.4 The holders of the Class C Preference Shares Series 1 shall be
entitled to receive the Class C Preference Shares Series 1 Series
Liquidation Amount, on parity with the payment to the holders every
other series of Preference Shares having regards to their respective
Series Liquidation Amounts.
D.5.5 The holders of the Class C Preference Shares Series 1 shall be
entitled to receive the Class C Preference Shares Series 1 Series
Liquidation Amount, on parity with the payment to the holders of
every other series of Preference Shares having regards to their
respective Series Liquidation Amounts, but in priority to any
distribution of the remaining property and assets of the Company to
the holders of the Common Shares.
D.6 REDEMPTION RIGHTS:
D.6.1.1 Subject to the provisions of the Companies Act, the shares of the
Class C Preference Shares Series 1 shall be redeemable.
D.6.1.2.1 The Company may redeem the whole or any part of the Class C
Preference Shares Series 1, on giving notice to the holders of the
Class C Preference Shares Series 1, as provided in this section D.6.
D.6.1.2.2 The Class C Preference Shares Series 1 shall be redeemable at the
option of the holders of the Class C Preference Shares Series 1, as
provided in this section D.6.
D.6.1.3 The shares of the Class C Preference Shares Series 1 shall be
redeemed on payment by the Company (in cash, Property, or property),
of the Class C Preference Shares Series 1 Series Individual Share
Redemption Amount for each share being redeemed of the Class C
Preference Shares Series 1.
D.6.1.4 Notwithstanding any other provision herein contained, the Company
may not make any payment to redeem any Class C Preference Share
Series 1 issued by it if there are reasonable grounds for believing
that:
C-23
(a) the Company is, or would after that payment, be unable
to pay its liabilities as they become due; or
(b) the realisable value of the Company's assets would after
the payment be less than:
(i) the aggregate of its liabilities; and
(ii) the aggregate of the amounts that would be
required to be paid to the holders of the
shares that have a right to be paid in
priority to or on parity with the holders
the Class C Preference Shares Series 1 (on
the redemption of the shares of the Class C
Preference Shares Series 1, or on a
liquidation of the Company).
REDEMPTION BY ELECTION OF COMPANY
---------------------------------
D.6.2.1 At any time after the tenth (10th) anniversary of the first issue of
the Class C Preference Shares Series 1, the Company may, upon giving
notice as hereinafter provided, redeem the whole or any part of a
given series of the then outstanding Class C Preference Shares
Series 1 on payment of the Class C Preference C Shares Series 1
Aggregate Series Redemption Amount on that Exercise of Redemption.
D.6.2.2 The holders of the Class C Preference Shares Series 1 being
redeemed, shall be entitled to share the Class C Preference Shares
Series 1 Series Aggregate Redemption Amount on a pro rata basis, in
proportion to the number of shares of the Class C Preference Shares
Series 1 owned by each holder, (and without reference to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class C Preference Shares Series 1).
D.6.2.3 The Company shall give not less than three hundred and sixty five
(365) days notice in writing, (the "Redemption Notice") of any
redemption by delivering the Redemption Notice to the registered
holders of the Class C Preference Shares Series 1 to be redeemed,
unless the holders of the Class C Preference Shares Series 1 to be
redeemed waive any such notice, which waiver, whether given before
or after the redemption, will cure any default in the giving of such
notice.
D.6.2.4 Each Redemption Notice shall be in the form prescribed by the
Company, and shall state:
(a) the redemption date;
(b) the number of shares of the Class C Preference Shares
Series 1 to be redeemed;
(c) the Class C Preference Shares Series 1 Individual Share
Redemption Amount; and
(d) The Class C Preference Shares Series 1 Aggregate
Redemption Amount (in respect of that Exercise of
Redemption).
C-24
D.6.2.5 On the Redemption Notice being duly given by the Company and, within
three (3) days after the date fixed for redemption, the Class C
Preference Shares Series 1 Aggregate Redemption amount in respect of
that Exercise of Redemption, shall be paid by a re-assignment of the
property or Property or where cash is being paid, by wire transfer
to the bank accounts specified for such payment by the holders of
the Class C Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, the Class C Preference
Shares Series 1 Aggregate Redemption Amount in respect of that
Exercise of Redemption, shall be deposited with any trust Company or
bank licensed under the Financial Institutions Act, or any
equivalent legislation in any other jurisdiction, as specified in
the Redemption Notice. The holders of the Class C Preference Shares
Series 1 shall thereafter have no right of action or claim against
the Company in respect of the Class C Preference Shares Series 1
redeemed or for the Class C Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the Class C Preference Shares Series 1 redeemed, to
receive payment for them out of the amounts so deposited.
D.6.2.6 The certificates representing the Class C Preference Shares Series 1
redeemed shall be void as of the date of redemption except to obtain
payment out of the Class C Preference Shares Series 1 Series
Aggregate Redemption Amount. Without limiting the foregoing, upon
delivery to the holders of the Class C Preference Shares Series 1
Series Aggregate Redemption Amount in respect of that Exercise of
Redemption, all rights of the holders of the Class C Preference
Shares Series 1 called for redemption shall terminate, unless
payment out of Class C Preference Shares Series 1 Series Aggregate
Redemption Amount is not made upon presentation of a certificate or
certificates in accordance with the foregoing provisions, in which
case the rights of the holders of the Class C Preference Shares
Series 1 shall remain unaffected.
REDEMPTION BY ELECTION OF SHAREHOLDER
-------------------------------------
D.6.3.1 At any time the first issue of the Class C Preference Shares Series
1, the holder of the Class C Preference Shares Series 1 shall be
entitled to require the Company to redeem, the whole or any part of
that holder's Class C Preference Shares Series 1, by giving not less
than fifteen working days notice in writing (the "Retraction
Notices"), in accordance with this section D.6.3.
D.6.3.2 The Retraction Notice shall be signed by the holder of the Class C
Preference Shares Series 1 who is required to be redeemed.
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D.6.3.3 Any Retraction Notice delivered to the Company, shall be sent by
prepaid mail, electronic mail, telefax or personal delivery to the
registered office or in the event that the Head Office is at a
different address than the registered office, the principal place of
business of the Company (the "Head Office"), for the attention of
the President (or other chief executive officer) of the Company.
D.6.3.4 The Company shall be entitled to rely on a Retraction Notice in the
form prescribed by the Company, and purporting to be given by or on
behalf of the holder of the Class C Preference Shares Series 1 or,
in the case of a corporate holder, by (i) any two officers, (ii) any
two directors, or (iii) any one officer together with any one
director of such corporation. The Company may waive any notice
required to be given hereunder and such waiver, whether given before
or after the redemption, shall cure any default in giving such
notice. The Company shall be entitled to rely on any form of
certificate accompanying the Retraction Notice and shall not be
required to investigate the bona fides of such certificate.
D.6.3.5 Upon receipt of Retraction Notice, the Company shall pay to the
holders of the Class C Preference Shares Series 1 being redeemed,
the Class C Preference Shares Series 1 Series Aggregate Redemption
Amount in respect of that Exercise of Redemption within ten (10)
days of its receipt of the Retraction Notice (or if a later date for
redemption is fixed in the Retraction Notice, the date fixed for
redemption in the Retraction Notice), by a re-assignment of the
property or Property or where cash is being paid, by wire transfer
to the bank accounts specified for such payment by the holders of
the Class C Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, that part of the Class C
Preference Shares Series 1 Series Aggregate Redemption Amount for
Class C Preference Shares Series 1 redeemed shall be deposited with
any trust Company or bank licensed under the Financial Institutions
Act, or any equivalent legislation in any other jurisdiction, as
specified in the Retraction Notice. The holders of the Class C
Preference Shares Series 1 shall thereafter have no right of action
or claim against the Company in respect of the Class C Preference
Shares Series 1 redeemed or for the Class C Preference Shares Series
1 Series Aggregate Redemption Amount in respect of that Exercise of
Redemption except, upon the surrender of the certificates
representing the redeemed Class C Preference Shares Series 1, to
receive payment for them out of the amounts so deposited. The
holders of the Class C Preference Shares Series 1 shall not be
entitled to or have any claims for interest against the Company or
any other person in respect of any amounts so deposited.
D.6.3.6 From and after the date specified for redemption by the holders of
the Class C Preference Shares Series 1, all rights of the holders of
Class C Preference Shares Series 1 called for redemption shall
terminate, unless payment out of the Class C Preference Shares
Series 1 Series Aggregate Redemption Amount is not made upon
C-26
presentation of a certificate or certificates in accordance with the
foregoing provisions, in which case the rights of the holders of the
Class C Preference Shares Series 1 shall remain unaffected
E. CLASS D PREFERENCE SHARES SERIES 1
The rights, privileges, restrictions and conditions attaching to the
Class D Preference Shares Series 1 are as follows:
E.1 CLASS D PREFERENCE SHARES SERIES 1 TO RANK PARI PASSU:
E.1.1 The Class D Preference Shares Series 1 shall rank on a parity with
the Preference Shares of every other series with respect to priority
in the payment of dividends and in the distribution of assets of the
Company in the event of any liquidation, dissolution or winding-up
of the Company or other distribution of assets of the Company among
its shareholders for the purpose of winding-up of its affairs.
E.1.2 In accordance with section 33(3) of the Companies Act, if the amount
payable on a return of capital in respect the Class D Preference
Shares Series 1 is not paid in full, the shares of all the Class D
Preference Shares Series 1 shall participate on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class D Preference
Shares Series 1, (and without reference to the number of shares of
the Class D Preference Shares Series 1 owned by each holder).
E.1.3 No rights, privileges, restrictions and conditions attached to the
Class D Preference Shares Series 1 may confer upon the Class D
Preference Shares Series 1 a priority in respect of dividends or
return of capital over every other series of Preference Shares then
outstanding.
E.2 VOTING RIGHTS
E.2.1 Except as required by law or pursuant to section E.3.2 of this
Schedule 1 of these Articles, the holders of the Class D Preference
Shares Series 1 shall not, as such, be entitled to receive notice of
or to attend any General Meeting of the Company or to vote at any
General Meeting.
E.2.2 In addition to the rights of the holders of the Class D Preference
Shares Series 1 to vote as Preferences required by law, the holders
of Class D Preference Shares Series 1 shall be entitled to receive
notice of and to attend and to vote at any General Meeting called
for the purpose of authorising the dissolution of the Company of
sale, lease or exchange of all or substantially all the property of
the Company other than in the ordinary course of business.
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E.2.3 In the event that the holders of the Class D Preference Shares
Series 1 shall be entitled to receive notice of and to attend, and
to vote at any General meeting either as required by law or under
section E.3.2, each holder of the Class D Preference Shares Series 1
shall be entitled to exercise one vote in respect of each the Class
D Preference Shares Series 1 held by that shareholder at the date of
such General Meeting.
E.3 SPECIAL CLASS AUTHORISATION
E.3.1.1 In addition to the authorisation buy special resolution, the holders
of the Class D Preference Shares Series 1 as a class, shall be
entitled to vote separately, as a class upon a proposal:
(a) to increase any maximum number of authorised shares of a
class having rights privileges, equal or superior to the
Class D Preference Shares Series 1;
(b) to effect an exchange, reclassification or cancellation
of all or any part of the Class D Preference Shares
Series 1;
(c) to, add, change or remove the rights, privileges,
restrictions or conditions attaching to the Class D
Preference Shares Series 1, including in particular, the
addition, removal or prejudicial change in respect of
the redemption rights, the reduction or removal of the
dividend or liquidation preference attaching to the
Class D Preference Shares Series 1, the addition,
removal or prejudicial change in respect of the
conversion privileges, options, voting transfers,
pre-emptive rights, rights to acquire shares or
debentures of the Company or sinking fund provisions;
(d) to increase the rights or privileges of any class of
shares having rights or privileges, equal or superior to
the Class D Preference Shares Series 1, or to make any
class of shares having rights or privileges, inferior to
the Class D Preference Shares Series 1, equal or
superior to the Class D Preference Shares Series 1;
(e) to create a new class of shares equal or superior to
Class D Preference Shares Series 1;
(f) to effect an exchange or to create a right of exchange
of all or part of the shares of another class into the
Class D Preference Shares Series 1; and
(g) to constrain the issue or transfer of Class D Preference
Shares Series 1 or to extend or remove such constraint;
and no such action may be made by the Company without,
but may be made with, the authorisation of the holders
of the Class D Preference Shares Series 1.
E.3.1.2. Any increase or decrease in the number of authorised Class D
Preference Shares Series 1, may be made by the Company without the
authorisation of the holders of the Class D Preference Shares Series
1, as a class.
E.3.2.1 The holders of the Class D Preference Shares Series 1, shall not be
entitled to vote separately as a series in respect of any proposal
described in section E.3.1.1, unless the Class D Preference Shares
Series 1 is affected by the proposed amendment in a manner different
from other series of Preference Shares.
E.3.2.2 Where the holders of the Class D Preference Shares Series 1, shall
be entitled to vote separately as a series in respect of any
proposal, the provisions of section E.3.3, shall apply.
E.3.3.1 The authorisation of the holders of the Class D Preference Shares
Series 1 may be given by a resolution:
(i) signed by all of the holders of the Class D Preference
Shares Series 1; or
(ii) passed by the affirmative vote of at least two thirds
(2/3) majority of the votes cast at a meeting of the
holders of the outstanding Class D Preference Shares
Series 1 duly called for that purpose upon at least
twenty-one (21) days notice.
E.3.3.2 Each holder of a Class D Preference Shares Series 1 shall be
entitled to one vote at any such meeting in respect of each Class D
Preference Shares Series 1 held and the presence in person or by
proxy of the holders of at least twenty-five percent (25%) of the
Class D Preference Shares Series 1 then outstanding shall constitute
a quorum for any such meeting;
E.3.3.3 If at any meeting a quorum is not present within thirty (30) minutes
after the time appointed for such meeting it shall be adjourned to
such date not less than fifteen (15) days thereafter and to such
time and place as may be designated by the chairman of the meeting
and not less than seven (7) days notice shall be given of such
adjourned meeting.
E.3.3.4 At any adjourned meeting, the holders of the Class D Preference
Shares Series 1 present or represented by proxy shall constitute a
quorum and resolution passed by at least two thirds (2/3) votes cast
at such adjourned meeting shall constitute the authorisation of the
holders of the Class D Preference Shares Series 1.
E.3.3.5 Subject to the foregoing, every such meeting shall be called and
held in accordance with the by-laws of the Company.
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E.4. DIVIDEND RIGHTS:
E.4.1.1 Subject to the Companies Act, and this section E.4.1, the holders of
the Class D Preference Shares Series 1 shall be entitled to receive,
and the Company shall pay thereon, out of realised profits or
surplus of the Company available for dividends, a fixed cumulative
preferential dividend equal to 10% of the amount maintained in the
stated capital account in respect of the amount maintained in the
stated capital account in respect of the Class D Preference Shares
Series 1 owned by such holder.
E.4.1.2 Dividends shall accrue on the Class D Preference Shares Series 1 and
the first payment shall be payable on April 1, 2004, and shall
thereafter be payable to the holders of the Class D Preference
Shares Series 1 quarterly, on the last business day of each calendar
quarter (or if such date is not a business day on the next following
business day (a "Dividend Payment Date").
E.4.2 The holders of the Class D Preference Shares Series 1 shall be
entitled to share in any dividend declared and paid to the holders
of the Class D Preference Shares Series 1, on a pro rata basis, in
proportion to the amount contributed by each holder to the stated
capital account maintained in respect of the Class D Preference
Shares Series 1, (and without reference to the number of shares of
the Class D Preference Shares Series 1 owned by each holder).
E.4.3. The holders of the Class D Preference Shares Series 1, shall be
entitled to receive the dividends payable to the Class D Preference
Shares Series 1, on parity with the payment to the holders of every
other series of any class of Preference Shares having regards to
their respective dividend entitlements.
E.4.4 The holders of the Class D Preference Shares Series 1, shall be
entitled to receive dividends in priority to any payment of dividend
on the Common Shares.
E.5 LIQUIDATION RIGHTS
E.5.1 In the event of the liquidating, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of the Class
D Preference Shares Series 1, shall be entitled to receive the Class
D Preference Shares Series 1 Series Liquidation Amount.
E.5.2 The holders of the Class D Preference Shares Series 1 shall be
entitled to share in the Class D Preference Shares Series 1 Series
Liquidation Amount, on a pro rata basis, in proportion to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class D Preference Shares Series 1, (and without
reference to the number of shares of the Class D Preference Shares
Series 1 owned by each holder).
E.5.3 After payment of the Class D Preference Shares Series 1 Series
Liquidation Amount, the holders of the Class D Preference Shares
Series 1 shall not be entitled to any further participation in the
assets of the Company.
C-29
E.5.4 The holders the Class D Preference Shares Series 1 shall be entitled
to receive the Class D Preference Shares Series 1 Series Liquidation
Amount, on parity with the payment to the holders every other series
of Preference Shares having regards to their respective Series
Liquidation Amounts.
E.5.5 The holders of the Class D Preference Shares Series 1 shall be
entitled to receive the Class D Preference Shares Series 1 Series
Liquidation Amount, on parity with the payment to the holders of
every other series of Preference Shares having regards to their
respective Series Liquidation Amount, but in priority to any
distribution of the remaining property and assets of the Company to
the holders of the Common Shares.
E.6 REDEMPTION RIGHTS:
E.6.1.1 Subject to the provisions of the Companies Act, the shares of the
Class D Preference Shares Series 1 shall be redeemable.
E.6.1.2.1 The Company may redeem the whole or any part of Class D Preference
Shares Series 1, on giving notice to the holders of the Class D
Preference Shares Series 1, as provided in the section E.6.
E.6.1.2.2 The Class D Preference Shares Series 1 shall be redeemable at the
option of the holders of the Class D Preference Shares Series 1, as
provided in this section E.6.
E.6.1.3 The shares of the Class D Preference Shares Series 1 shall be
redeemed on payment by the Company (in cash, Property, or property),
of Class D Preference Shares Series 1 Series Individual Share
Redemption Amount for each share being redeemed of the Class D
Preference Shares Series 1.
E.6.1.4 Notwithstanding any other provision herein contained, the Company
may not make any payment to redeem any Class D Preference Share
Series 1 issued by it if there are reasonable grounds for believing
that:
(a) the Company is, or would after that payment, be unable
to pay its liabilities as they become due; or
(b) the realisable value of the Company's assets would after
the payment be less than:
(i) the aggregate of its liabilities; and
C-30
(ii) the aggregate of the amounts that would be
required to be paid to the holders of shares
that have a right to be paid in priority to
or on parity with the holders the Class D
Preference Shares Series 1 (on the
redemption of the shares of the Class D
Preference Shares Series 1, or on a
liquidation of the Company).
REDEMPTION ELECTION OF THE COMPANY:
----------------------------------
E.6.2.1 At any time after the tenth (10th) anniversary of the first issue of
the Class D Preference Shares Series 1 the Company may, upon giving
notice as hereinafter provided, redeem the whole or any part of a
given series of the then outstanding Class D Preference Shares
Series 1 on payment of the Class D Preference Shares Series 1
Aggregate Series Redemption Amount on that Exercise of Redemption.
E.6.2.2 The holders of the Class D Preference Shares Series 1 being
redeemed, shall be entitled to share the Class D Preference Shares
Series 2 Series Aggregate Redemption Amount on a pro rata basis, in
proportion to the number of shares of the Class D Preference Shares
Series 1 owned by each holder, (and without reference to the amount
contributed by each holder to the stated capital account maintained
in respect of the Class D Preference Shares Series 1).
E.6.2.3 The Company shall give not less than three hundred and sixty five
(365) days notice in writing, (the "Redemption Notice") of my
redemption by delivering the Redemption Notice to the registered
holders of the Class D Preference Shares Series 1 to be redeemed,
unless the holders of the Class D Preference Shares Series 1 to be
redeemed, waive any such notice, which waiver, whether given before
or after the redemption, will cure any default in the giving of such
notice.
E.6.2.4 Each Redemption Notice shall be in the form prescribed by the
Company, and shall state:
(a) the redemption date;
(b) the number of shares of the Class D Preference Shares
Series 1 to be redeemed;
(c) the Class D Preference Shares Series 1 Individual Share
Redemption Amount; and
(d) The Class D Preference Shares Series 1 Aggregate
Redemption Amount (in respect of that Exercise of
Redemption).
E.6.2.5 On the Redemption Notice being duly given by the Company and, within
three (3) days after the date fixed for redemption, the Class D
Preference Shares Series 1 Aggregate Redemption Amount in respect of
that Exercise of Redemption, shall be paid by a re-assignment of the
property or Property or where cash is being paid, by wire transfer
C-31
to the bank accounts specified for such payment by the holders of
the Class D Preference Shares Series 1 being redeemed. In the event
that no such account is specified, or that such funds remain
uncleared and are returned to the Company, the Class D Preference
Shares Series 1 Aggregate Redemption Amount in respect of that
Exercise of Redemption, shall be deposited with any trust Company or
bank licensed under the Financial Institutions Act, or any
equivalent legislation in any other jurisdiction, as specified in
the Redemption Notice. The holders of the Class D Preference Shares
Series 1 shall thereafter have no right of action or claim against
the Company in respect of the Class D Preference Shares redeemed or
for the Class D Preference Shares Series 1 Series Aggregate
Redemption Amount in respect of that Exercise of Redemption except,
upon the surrender of the certificates representing Class D
Preference Shares Series 1 redeemed, to receive payment for them out
of the amounts so deposited.
E.6.2.6 The certificates representing the Class D Preference Shares Series 1
redeemed shall be void as of the date of redemption except to obtain
payment out of the Class D Preference Shares Series 1 Series
Aggregate Redemption Amount. Without limiting the foregoing, upon
delivery to the holders of the Class D Preference Shares Series 1
being redeemed of the Class D Preference Shares Series 1 Series
Aggregate Redemption Amount in respect of that Exercise of
Redemption, all rights of the holders of the Class D Preference
Shares Series 1 called for redemption shall terminate, unless
payment out of the Class D Preference Shares Series 1 Series
Aggregate Redemption Amount is not made upon presentation of a
certificate or certificates in accordance with the foregoing
provisions, in which case the rights of the holders of Class D
Preference Shares Series 1 shall remain unaffected.
REDEMPTION ELECTION OF SHAREHOLDERS
-----------------------------------
E.6.3.1 At any time after the first issue of the Class D Preference Shares
Series 2, the holder of the Class D Preference Shares Series 1 shall
be entitled to required the Company to redeem, the whole or any part
of that holder's Class D Preference Shares Series 1, by giving not
less than fifteen working days notice in writing (the "Retraction
Notice"), in accordance with this section E.6.3.
E.6.3.2 The Retraction Notice shall be signed by the holder of the Class D
Preference Shares Series 1 who is required to be redeemed.
E.6.3.3 Any Retraction Notice delivered to the Company, shall be sent by
prepaid mail, electronic mail, telefax or personal delivery to the
registered office or in the event that the Head Office is at
difference address than the registered office, the principal place
of business of the Company (the "Head Office"), for the attention of
the President (or other chief executive officer) of the Company.
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E.6.3.4 The Company shall be entitled to rely on a Retraction Notice in the
form prescribed by the Company, and purporting to be given by or on
behalf of the holder of the Class D Preference Shares Series 1 or,
in the case of a corporate holder, by (1) any two officers, (ii) any
two directors, or (iii) any one officer together with any one
director of such corporation. The Company may waive any notice
required to be given hereunder and such waiver, whether given before
or after the redemption, shall cure any default in giving such
notice. The Company shall be entitled to rely on any form of
certificates accompanying the Retraction Notice and shall not be
required to investigate the bona fides of such certificate.
E.6.3.5 Upon receipt of Retraction Notice, the Company shall pay to the
holders of the Class D Preference Shares Series 1 being redeemed,
the Class D Preference Shares Series 1 Preference Series Aggregate
Redemption Amount in respect of that Exercise of Redemption within
ten (10) days of its receipt of the Retraction Notice (or if a later
date for redemption is fixed in the Retraction Notice, the date
fixed for redemption in the Retraction Notice), by a re-assignment
of the property or Property or where cash is being paid, by wire
transfer to the bank accounts specified for such payment by the
holders of the Class D Preference Shares Series 1 being redeemed. In
the event that no such account is specified, or that such funds
remain uncleared and are returned to the Company, that part of the
Class D Preference Shares Series 1 Series Aggregate Redemption
Amount for the Class D Preference Shares Series 1 redeemed shall be
deposited with any trust Company or bank licensed under the
Financial Institutions Act, or any equivalent legislation in any
other jurisdiction, as specified in the Retraction Notice. The
holders of the Class D Preference Shares Series 1 shall thereafter
have no right of action or claim against the Company in respect of
the Class D Preference Shares redeemed or for the Class D Preference
Shares Series 1 Series Aggregate Redemption Amount in respect of
that Exercise of Redemption except, upon the surrender of the
certificates representing the redeemed Class D Preference Shares
Series 1, to receive payment for them out of the amounts so
deposited. The holders of the Class D Preference Shares 1 shall not
be entitled to or have any claim for interest against the Company or
any other person in respect of any amounts so deposited.
E.6.3.6 From and after the date specified for redemption by the holders of
the Class D Preference Shares Series 1, all rights of the holders of
the Class D Preference Shares Series 1 called for redemption shall
terminate, unless payment out of the Class D Preference Shares
Series 1 Series Aggregate Redemption Amount is not made upon
presentation of a certificate or certificates in accordance with the
foregoing provisions, in which case the rights of the holders of the
Class D Preference Shares Series 1 shall remain unaffected.
C-33
THE COMPANIES ACT OF BARBADOS
(Section 33 and 203)
ARTICLES OF AMENDMENT
- ------------------------------------------------------------------------------
Name of Company: Company No:
STRATEGY HOLDING COMPANY LIMITED 23169
- ------------------------------------------------------------------------------
SCHEDULE II
RESOLVED THAT:
1. Pursuant to section 197 (1)(m)(d) and (e) of the
Companies Act, Cap. 308 of the laws of Barbados, Item 2
of the Articles of Incorporation of the Company be
amended:
(a) the existing Redeemable Preferred Shares be
cancelled;
(b) that 4 new classes of shares designated
Redeemable Preferred Shares as set forth in
the Schedule I annexed hereto to be issued;
and
(c) the rights and privileges attached to the
Common Shares be amended as set forth in
Schedule I annexed hereto;
(d) so that the existing provisions of the said
Item 2 of the Articles of Incorporation be
amended by deleting the existing provisions
thereof, and substituting therefor the
provisions of the Schedule I annexed hereto
and incorporated herein; and all existing
provisions of the Articles of Incorporation
shall except as referenced above remain
unaffected.
2. Any one officer or director of the Company is authorized
and directed on behalf of the Company to deliver
Articles of Amendment, in duplicate, in the prescribed
form to the appropriate authorities under the Companies
Act (Barbados) and to sign and execute all documents and
do all things necessary in connection with the
foregoing.
3. The Board of Directors of the Company is hereby
authorized to revoke this Special Resolution without
approval of the sole shareholder of the Company at any
time before it is acted upon.
I, TREVOR A. CARMICHAEL, do hereby certify that I am a Director of
STRATEGY HOLDING COMPANY LIMITED, a company organised and existing under the
laws of Barbados, and that the above is a true and correct copy of a special
resolution of the shareholder of the company, duly adopted in accordance with
the laws of Barbados on the 30th day of January, 2004 and that such resolution
is now in full force and effect.
Dated this 4th day of February, 2004.
/s/ Trevor A. Carmichael
----------------------------------
Trevor A. Carmichael
Director
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