EXHIBIT 3.1
BUSINESS CORPORATIONS ACT
(SECTION 27 OR 171)
ALBERTA CONSUMER AND CORPORATE AFFAIRS
ARTICLES OF AMENDMENT
(FORM 4)
1. NAME OF CORPORATION 2. CORPORATE ACCESS NO.
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KWIKSTAR COMMUNICATIONS LTD. 20589392
3. THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
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1. Section 1 of the Articles of the Corporation shall, pursuant to
Section 167(1)(a) of the Business Corporations Act (Alberta), be
amended by changing the name of the Corporation from "Kwikstar
Communications Ltd." to
DIGITAL COURIER INTERNATIONAL CORPORATION
2. Section 2 of the Articles of the Corporation shall, pursuant to
Section 167(1)(f) of the Business Corporations Act (Alberta), be
amended by changing the number of the Corporation's issued and
outstanding Common Shares by consolidating the issued and outstanding
Common Shares of the Corporation on the basis that three Common Shares
outstanding before consolidation shall be consolidated into one (1)
Common Share after consolidation.
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DATE SIGNATURE TITLE
APRIL 4, 1996 /s/ E. Lynn Patterson
E. LYNN PATTERSON DIRECTOR
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FOR DEPARTMENTAL USE ONLY FILED
BUSINESS CORPORATIONS ACT
(SECTION 27 OR 171)
ALBERTA CONSUMER AND CORPORATE AFFAIRS
ARTICLES OF AMENDMENT
(FORM 4)
1. NAME OF CORPORATION 2. CORPORATE ACCESS NO.
------------------- --------------------
KWIKSTAR COMMUNICATIONS LTD. 20589392
3. THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
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Section 2 of the Articles of the Corporation shall, pursuant to
section 27 of the Business Corporations Act (Alberta), be amended by
creating a series of Preferred Shares, the first of such series to be
designated as Preferred Shares, Series 1, the said Preferred Shares,
Series 1 to consist of 2,000,000 shares and to have attached thereto
the rights, privileges, restrictions and conditions set out in
Schedule "A" attached hereto.
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DATE SIGNATURE TITLE
MARCH 7, 1996 /s/ Edward D. Ford
DIRECTOR
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FOR DEPARTMENTAL USE ONLY FILED
SCHEDULE "A"
PREFERRED SHARES, SERIES 1
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The Preferred Shares, Series 1 (the "Series 1 Shares") shall have attached
thereto the following rights, privileges, restrictions and conditions, in
addition to those attached to the preferred shares as a class as set forth in
Section 2 to the Articles of the Corporation.
1. VOTING
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Except as required by law, the holders of the Series 1 Shares shall not,
as such, be entitled to receive notice of, attend or vote at any meeting of the
shareholders of the Corporation.
2. DIVIDENDS
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No dividends shall be declared or paid at any time on the Series 1 Shares
and the holders of such shares shall not have any claim against the Corporation
for dividends of any kind.
3. LIQUIDATION, DISSOLUTION OR WINDING-UP
--------------------------------------
In the event of the liquidation, dissolution or winding-up of the
Corporation or any other distribution of assets of the Corporation among its
shareholders for the purpose of winding-up its affairs, the holders of the
Series 1 Shares shall be entitled to repayment of the amount paid up thereon,
the whole being paid before any amount shall be paid or any assets or property
of the Corporation shall be distributed to the holders of the common shares of
the Corporation and any other shares of the Corporation ranking junior to the
Series 1 Shares. After payment of such amounts, the holders of the Series 1
Shares shall not be entitled to share in any further distribution of the
property or assets of the Corporation.
4. ISSUE PRICE
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The Series 1 Shares shall be issued only at and for a deemed price of $1.00
per share.
5. REDEMPTION AND RETRACTION
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(a) Definitions
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For the purposes of this Section:
(i) "Expiration Date" means November 15, 1998;
(ii) "Gross Margin" means the aggregate gross proceeds of sale or
license, arising from or relating to the MI-320 ISDN terminal
adapter, the NDIS
communications drivers and the Capella MPEG PC Codec, less the
Corporation's costs to produce such products and technology, such
costs excluding all costs of marketing and selling such products
and technology, all to be determined by the Corporation's auditor
quarterly together with the calculation of the Corporation's
quarterly financial results;
(iii) "Redemption Price" means $1.00 per share; and
(iv) "Retraction Price" means $1.00 per share.
(b) Mandatory Redemption
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(i) The Corporation shall redeem, on the 30th day following the end of
each financial quarter during the Corporation's fiscal year in which
Series 1 Shares shall remain issued and outstanding (the "Mandatory
Redemption Date"), the number of Series 1 Shares which have an
aggregate Redemption Price equal to fifty percent (50%) of the Gross
Margin for such quarter.
(ii) On each Mandatory Redemption Date, the Corporation shall, subject to
the provisions of the Business Corporations Act (Alberta), pay or
cause to be paid the Redemption Price to or to the order of the holder
of the Series 1 Shares, as the case may be, to be redeemed upon
presentation and surrender at the registered office of the Corporation
of the respective certificates representing such shares.
Should the holders of the Series 1 Shares fail to present the
certificates for the Series 1 Shares to be redeemed on any Mandatory
Redemption Date, the Corporation shall have the right at any time
after the Mandatory Redemption Date to deposit the Redemption Price or
such part thereof as at the time of deposit has not been claimed by
the holder of the Series 1 Shares entitled thereto, to a special
account in any Canadian chartered bank or trust company, to be paid
without interest to or to the order of the holder of such Series 1
Shares called for redemption upon presentation and surrender of the
certificates representing the Series 1 Shares so redeemed. Any
interest on such deposit shall belong to the Corporation.
Such Series 1 Shares shall thereupon be and be deemed to be redeemed
and shall be cancelled and shall not be reissued. If a part only of
the shares represented by any certificate is redeemed, a new
certificate for the balance shall be issued at the expense of the
Corporation. The holder of the Series 1 Shares so redeemed shall cease
to exercise any of the rights of the holder in respect thereof unless
payment of the Redemption Price shall not be: made in accordance with
this Section, in which case the rights of such holder shall remain
unimpaired.
(c) Optional Redemption
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(i) The Corporation may at its option at any time or from time to time, on
the giving of not less than 10 days prior written notice ("Redemption
Notice") to the holder of the Series 1 Shares, redeem for the
Redemption Price all or any part of the Series 1 Shares then
outstanding on the date fixed for redemption (the "Voluntary
Redemption Date"), all as specified in the Redemption Notice.
(ii) The Corporation shall redeem the Series 1 Shares referred to in the
Redemption Notice on the Voluntary Redemption Date (or before the
Redemption Date if agreed to by the holder of the Series 1 Shares).
The Corporation shall, after presentation and surrender at the
registered office of the Corporation of the certificate(s) for the
Series 1 Shares called for redemption, pay to the holder of the Series
1 Shares the Redemption Price in accordance with paragraph (iii)
below.
Such Series 1 Shares shall thereupon be and be deemed to be redeemed
and shall be cancelled and shall not be reissued. The holder of the
Series 1 Shares so redeemed shall cease to exercise any of the rights
of the holder in respect thereof unless payment of the Redemption
Price shall not be made in accordance with this subsection, in which
case the rights of such holder shall remain unimpaired.
Should the Redemption Price be paid in cash in accordance with
paragraph (iii) below,. and should the holder of the Series 1 Shares
fail to present the certificate(s) for the Series 1 Shares to be
redeemed on the Voluntary Redemption Date, the Corporation shall have
the right at any time thereafter to deposit the Redemption Price in
any Canadian chartered bank or trust company, in a special account for
the holder of such shares, and upon deposit being made, the Series 1
Shares in respect of which such deposit shall have been made shall be
deemed to be redeemed and the rights of the holder thereof shall be
limited to receiving without interest, the Redemption Price so
deposited upon presentation and surrender of the certificate
representing the Series 1 Shares so redeemed. Any interest on such
deposit shall belong to the Corporation.
(iii) Payment of the Redemption Price for any Series 1 Shares redeemed
under this paragraph (c) shall be made in cash unless the holder of
the Series 1 Shares notifies the Corporation in writing not less than
5 days prior to the Voluntary Redemption Date that it wishes to
receive common shares, in which case the Redemption Price shall be
paid by issuing to the holder of the Series 1 Shares the number of
common shares in the capital of the Corporation equal to the number of
the Series 1 Shares being redeemed, multiplied by one and one-half,
and by paying the Redemption Price in cash for the remaining one-half
of the Series 1 Shares being redeemed.
All common shares issued upon a redemption of Series 1 Shares under
this paragraph (c) shall be fully paid and non-assessable.
(d) Retraction at Holder's Option
-----------------------------
(i) Should any Series 1 Shares remain issued and outstanding as at the
Expiration Date, the holder of such Series 1 Shares may, at any time
after the Expiration Date, demand by notice in writing (the
"Retraction Notice") to the Corporation that the Corporation redeem
the whole or from time to time any part of the Series 1 Shares held by
it by payment to it of the Retraction Price therefor.
(ii) If the holder of the Series 1 Shares desires the Corporation to redeem
its Series 1 Shares pursuant to this Section, it shall at least 30
days before the date specified for redemption give written notice
thereof to the Corporation at its registered office (the "Retraction
Notice"). Such notice shall set out the date on which redemption is to
take place (the "Retraction Date").
The Corporation shall, subject to the provisions of the Business
Corporations Act (Alberta), redeem the Series 1 Shares referred to in
the Retraction Notice on the Retraction Date (or before the Retraction
Date if agreed to by the holder of the Series 1 Shares). The
Corporation shall, after presentation and surrender at the registered
office of the Corporation of the certificate(s) for the Series 1
Shares called for redemption, pay to the holder of the Series 1 Shares
the Retraction Price in accordance with paragraph (iii) below. Such
Series 1 Shares shall thereupon be and be deemed to be redeemed and
shall be cancelled and shall not be reissued. The holder of the Series
1 Shares so redeemed shall cease to exercise any of the rights of the
holder in respect thereof unless payment of the Retraction Price shall
not be made in accordance with this Section, in which case the' rights
of such holder shall remain unimpaired.
Should the Retraction Price be paid in cash in accordance with
subparagraph (iii)(B) below, and should the holder of the Series 1
Shares fail to prevent the certificate(s) for the Series 1 Shares to
be redeemed on the Retraction Date, the Corporation shall have the
right at any time thereafter to deposit the Retraction Price in any
Canadian chartered bank or trust company, in a special account for the
holder of such shares, and upon deposit being made, the Series 1
Shares in respect of which such deposit shall have been made shall be
deemed to be redeemed and the rights of the holder thereof shall be
limited to receiving without interest, the Retraction Price so
deposited upon presentation and surrender of the certificate
representing the Series 1 Shares so redeemed. Any interest on such
deposit shall belong to the Corporation.
(iii) Payment of the Retraction Price shall be made, solely at the option
of the holder of the Series 1 Shares, as specified in the Retraction
Notice, as follows:
(A) by issuing to the holder of the Series 1 Shares the number of
common shares in the capital of the Corporation equal to the
number of Series 1 Shares being redeemed multiplied by three; or
(B) by payment of the Retraction Price, in cash, to or to the order
of the holder of the Series 1 Shares.
Should the Retraction Price be paid in cash in accordance with
subparagraph (iii)(B) above, payment of the Retraction Price shall be
made by way of twelve (12) equal monthly installments payable by the
Corporation to the holder of the Series 1 Shares on or before the last
day of each month, commencing on the last day of the first full month
after the Retraction Date.
All common shares issued upon any retraction of Series 1 Shares in
accordance with this paragraph shall be fully paid and non-assessable.
6. ANTI-DILUTION
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(a) In the event of any subdivision or reclassification of the common
shares or reconstruction, consolidation, amalgamation or merger of the
Corporation (other than a consolidation, amalgamation or merger which
does not result in a reclassification of the outstanding common shares
into other shares) (collectively an "Event") at any time while any of
the Series 1 Shares are outstanding:
(i) into a greater number and/or different class or classes of
shares, then in such an Event the holder of any Series 1 Shares
receiving common shares as payment for all or any part of the
Redemption Price or the Retraction Price at any time after such
Event shall be entitled to such additional number and/or
different class or classes of shares as would have resulted from
such Event if the Redemption Price or the Retraction Price had
been paid prior to the date of such Event; and
(ii) into a lesser number and/or different class or classes of shares,
then in such an Event the holder of any Series I Shares receiving
common shares as payment for all or any part of the Redemption
Price or the Retraction Price at any time after such Event shall
be entitled to such lesser number and/or different class or
classes of shares as would have resulted from such Event if the
Redemption Price or the Retraction Price had been paid prior to
the date of such Event.
(b) If the holder of any Series 1 Shares receives common shares as payment
for all or any part of the Redemption Price or the Retraction Price at
any time after the
payment by the Corporation of any dividend on the common shares
payable in common shares of the Corporation or a dividend on the
common shares payable at the option of the holders thereof either in
common shares of the Corporation or in cash, such holder shall be
entitled to (subject to the prior written consent of The Alberta Stock
Exchange) to the number of common shares which the holder would have
been entitled to receive in payment of such Redemption Price or
Retraction Price, as the case may be, if such dividend had not been
paid and, in addition, to such additional number of common shares as
would have been payable on the common shares if such Redemption Price
or the Retraction Price, as the case may be, had been payable prior to
the record date for such dividend and if such holder had exercised any
such option so as to be entitled to common shares and not in cash;
(c) If an Event occurs, the Corporation shall provide 30 days prior
written notification of same to all holders of Series 1 Shares.
BUSINESS CORPORATIONS ACT
(SECTION 27 OR 171)
ALBERTA CONSUMER AND CORPORATE AFFAIRS
ARTICLES OF AMENDMENT
(FORM 4)
1. NAME OF CORPORATION 2. CORPORATE ACCESS NO.
------------------- --------------------
KWIKSTAR COMMUNICATIONS LTD. 20589392
3. THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
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1. Section 3 of the Articles of the Corporation shall, pursuant to section
167(1)(1) of the Business Corporations Act (Alberta) (the "Act"), be
amended by removing therefrom the restrictions on share transfers as
contained therein and substituting therefor:
No restrictions
2. Section 4 of the Articles of the Corporation shall, pursuant to section
167(1)(k) of the Act, be amended by increasing the minimum number of
directors that the Corporation may have from one (1) to three (3), so that
the minimum and maximum number of directors that the Corporation may have
shall be:
Minimum - 3; maximum - 15
3. Section 6 of the Articles of the Corporation shall, in accordance with
section 167(1)(m) of the Act, be amended by removing therefrom the provisions
contained in paragraph A thereof.
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DATE SIGNATURE TITLE
OCTOBER 14, 1994 /s/ Don Snyder
DIRECTOR
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FOR DEPARTMENTAL USE ONLY FILED
BUSINESS CORPORATIONS ACT
(SECTION 27 OR 171)
ALBERTA CONSUMER AND CORPORATE AFFAIRS
ARTICLES OF AMENDMENT
(FORM 4)
1. NAME OF CORPORATION 2. CORPORATE ACCESS NO.
------------------- --------------------
589392 ALBERTA LTD. 20589392
3. THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
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Section 1 of the Articles of the Corporation shall, pursuant to
section 167(3) of the Business Corporations Act (Alberta), be amended
by changing the name of the Corporation from 589392 ALBERTA LTD. to
KWIKSTAR COMMUNICATIONS LTD.
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DATE SIGNATURE TITLE
SEPTEMBER 16, 1994 /s/ Edward D. Ford
EDWARD D. FORD DIRECTOR
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FOR DEPARTMENTAL USE ONLY FILED
BUSINESS CORPORATIONS ACT
(SECTION 6)
ALBERTA CONSUMER AND CORPORATE AFFAIRS
ARTICLES OF INCORPORATION
(FORM 1)
1. NAME OF CORPORATION:
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589392 ALBERTA LTD.
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2. THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS
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AUTHORIZED TO ISSUE:
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- An unlimited number of common shares without nominal or par value,
having attached thereto the rights, privileges, restrictions and
conditions set out in Schedule "A" attached hereto;
- An unlimited number of preferred shares without nominal or par value,
having attached thereto the rights, privileges, restrictions and
conditions set out in Schedule "B" attached hereto.
3. RESTRICTIONS ON SHARE TRANSFERS (IF ANY):
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No transfer of shares shall occur or be registered unless and until the
directors have, by a resolution, approved the transfer and the directors
shall be under no obligation to give such approval or to give any reason
for withholding the same.
4. NUMBER, OR MINIMUM AND MAXIMUM NUMBER, OF DIRECTORS THAT THE CORPORATION
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MAY HAVE:
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Minimum - 1; Maximum - 15
5. IF THE CORPORATION IS RESTRICTED FROM CARRYING ON A CERTAIN BUSINESS, OR
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RESTRICTED TO CARRYING ON A CERTAIN BUSINESS, SPECIFY THE RESTRICTION(S):
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No restrictions
6. OTHER RULES OR PROVISIONS (IF ANY):
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A. 1. The number of shareholders of the Corporation, exclusive of
(a) persons who are in its employment and are shareholders of
the Corporation, and
(b) persons who, having been formerly in the employment of the
Corporation, were, while in that employment, shareholders of
the Corporation and have continued to be shareholders of the
Corporation after termination of that employment, is limited
to not more than 50 persons; 2 or more persons who are the
joint registered owners of one or more shares being counted
as a single shareholder.
2. Any invitation to the public to subscribe for any securities of
the Corporation is prohibited.
B. The Corporation has a lien on the shares registered in the name of a
shareholder or his legal representative for a debt of that shareholder
to the Corporation. The Corporation may enforce such lien in
accordance with its By-laws.
C. The directors may, between annual general meetings, appoint one or
more additional directors of the Corporation to serve until the next
annual general meeting, but the number of additional directors shall
not at any time exceed 1/3 of the number of directors who held office
at the expiration of the last annual meeting of the Corporation.
D. Meetings of shareholders of the Corporation may be held outside
Alberta at any place within Canada or the United States of America as
the Board of Directors of the Corporation may determine.
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7. DATE November 30, 1993
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INCORPORATORS NAMES ADDRESS (including postal code) SIGNATURE
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MICHELINE MARCYAN 1800, 800 5th Avenue S.W. /s/ M. Marcyan
Calgary, Alberta
T2P 3T6
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FOR DEPARTMENTAL USE ONLY
CORPORATE ACCESS NO: INCORPORATION DATE:
SCHEDULE "A"
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TO THE ARTICLES OF INCORPORATION OF
_____________________ ALBERTA LTD.
There shall be attached to the common shares, the following rights,
privileges, restrictions and conditions, namely:
1. The holders of common shares shall be entitled to receive notice of, and to
vote at every meeting of the shareholders of the Corporation and shall have one
(1) vote thereat for each such common share so held.
2. Subject to the rights, privileges, restrictions and conditions attached to
any preferred shares of the Corporation, the holders of common shares shall be
entitled to receive such dividend as the directors may from time to time, by
resolution, declare.
3. Subject to the rights, privileges, restrictions and conditions attached to
any preferred shares of the Corporation, in the event of liquidation,
dissolution or winding up of the Corporation or upon any distribution of the
assets of the Corporation among shareholders being made (other than by way of
dividend out of monies properly applicable to the payment of dividends) the
holders of common shares shall be entitled to share pro rata.
SCHEDULE "B"
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TO THE ARTICLES OF INCORPORATION OF
_________________________ ALBERTA LTD.
There shall be attached to the preferred shares the following rights,
privileges, restrictions and conditions, namely:
1. The Directors of the Corporation may, from time to time, issue the
preferred shares in one or more series, each series to consist of such numbers
of shares as may before issuance thereof, be determined by the Directors.
2. The Directors of the Corporation may, by resolution (subject as hereinafter
provided) fix before issuance, the designation, rights, privileges, restrictions
and conditions to attach to the preferred shares of each series, including,
without limiting the generality of the foregoing, the rate, form, entitlement
and payment of preferential dividends, the redemption price, terms, procedures
and conditions of redemption, if any, voting rights and conversion rights (if
any) and any sinking fund, purchase fund or other provisions attaching to the
preferred shares of such series; and provided however, that no shares of any
series shall be issued until the Directors have filed Articles of Amendment with
the Registrar of Corporations, Province of Alberta, or such designated person in
any other jurisdiction in which the Corporation may be continued.
3. If any cumulative dividends or amounts payable on return of capital in
respect of a series of shares are not paid in full, the shares of all series
shall participate ratably in respect of accumulated dividends and return of
capital.
4. The preferred shares shall be entitled to preference over the common shares
of the Corporation and any other shares of the Corporation ranking junior to the
preferred shares with respect to the payment of dividends, if any, and in the
distribution of assets in the event of liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, or any other distribution of
the assets of the Corporation among its shareholders for the purpose of winding
up its affairs, and may also be given such other preferences over the common
shares of the Corporation and any other shares of the Corporation ranking junior
to the preferred shares as may be fixed by the resolution of the Directors of
the Corporation as to the respective series authorized to be issued.
5. The preferred shares of each series shall rank on a parity with the
preferred shares of every other series with respect to priority and payment of
dividends and in the distribution of assets in the event of liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary
exclusive of any conversion rights that may affect the aforesaid.
6. No dividends shall at any time be declared or paid on or set apart for
payment on any shares of the Corporation ranking junior to the preferred shares
unless all dividends, if any, up to and including the dividend payable for the
last completed period for which such dividend shall be payable on each series of
preferred shares then issued and outstanding shall have been declared and paid
or set apart for payment at the date of such declaration or payment or setting
apart for payment on such shares of the Corporation ranking junior to the
preferred shares nor shall the Corporation call for redemption or redeem or
purchase for cancellation or reduce or otherwise pay off any of the preferred
shares (less than the total amount then outstanding) or any shares of the
Corporation ranking junior to the preferred shares unless all dividends up to
and including the dividend payable, if any, for the last completed period for
which such dividends shall be payable on each series of the preferred shares
then issued and outstanding shall have been declared and paid or set apart for
payment at the date of such call for redemption, purchase, reduction or other
payment.
7. Preferred shares of any series may be purchased for cancellation or made
subject to redemption by the Corporation out of capital pursuant to the
provisions of the Business Corporations Act (Alberta), if the Directors so
provide in the resolution of the Board of Directors of the Corporation relating
to the issuance of such preferred shares, and upon such other terms and
conditions as may be specified in the designations, rights, privileges,
restrictions and conditions attaching to the preferred shares of such series as
set forth in the said resolution of the Board of Directors and the Articles of
Amendment of the Corporation relating to the issuance of such series.
8. The holders of the preferred shares shall not, as such, be entitled as of
right to subscribe for or purchase or receive any part of any issue of shares or
bonds, debentures or other securities of the Corporation now or hereafter
authorized.
9. No class of shares may be created or rights and privileges increased to
rank in parity or priority with the rights and privileges of the preferred
shares including, without limiting the generality of the foregoing, the rights
of the preferred shares to receive dividends or to return of capital, without
the approval of the holders of the preferred shares as required under the
Business Corporations Act (Alberta).