For Ministry Use Only
A l'usage exclusit du ministere
Ontario Corporation Number
Numero de la societe en Ontario
1251018
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Ministry of Consumer and Commercial Relations
CERTIFICATE
This is to certify that these articles are effective on
August 14
Ministere de la Consommation et du Commerce
CERTIFICAT
Ceci certifie que les presents statuts entrent en vigueur le
Aout, 1997
Signature illegible
Director/Directeur
Business Corporations Act/Loi sur les societes per actions
Form 4 Business Corporations Act
Formule 4 Loi sur les societes par actions
ARTICLES OF AMALGAMATION
STATUTS DE FUSION
1. The name of the amalgamated corporation is:
Denomination sociale de la societe issue de la fusion:
LIFTKING INDUSTRIES INC.
2. The address of the registered office is: Addresse du siege social:
7135 Islington Avenue, First Floor
________________________________________________________________________
(Street & Number, or R.R. Number & if Multi-Office Building give Room No.)
(Rue et numero, ou numero de la R.R. et, s'il s'agit d'un edifice a bureaux,
numero de bureau)
Woodbridge, Ontario L4L1V9
________________________________________________________________________
(Name of Municipality or Post Office) (Postal Code)
(Nom de la municipalite ou du bureau de poste) (Code postal)
3. Number (or minimum and maximum number) Nombre (ou nombres minimal et
of directors is: maximal) d'administrateurs:
a minimum of one and a maximum of ten
4. The director(s) is/are: Administrateur(s): Resident
Canadian
State
First name, initials and surname Residence address, giving Street & No. or R.R. No., Yes or No
Prenom, initiales et nom de famille municipality and postal code Resident canadien
Adresse personnelle, Y compris la rue et le numero, le Oui/Non
numero de la R.R., le nom de le municipalite et le code
postal
________________________________________________________________________
Louis Aldrovandi 38 Arkona Drive Yes
Agincourt, Ontario
M1T 1X3
5. (A) The amalgamation agreement has been duly (A) Les actionnaires de chaque societe qui fusionne
adopted by the shareholders of each of the ont dument adopte la convention de fusion
amalgamating corporations as required by conformement au paragraphe 176(4) de la Loi sur
subsection 176 (4) of the Business [X] les societes par action a la date mentionnee
Corporations Act on the date set out below. ci-dessous.
_________________
Check Cocher
A or B A ou B
_________________
(B) The amalgamation has been approved by the (B) Les administrateurs de chaque societe qui
directors of each amalgamating corporation by [ ] fusionne ont approuve la fusion par voie de
a resolution as required by section 177 of the resolution conformement a l'article 177 de la Loi
Business Corporations Act on the date set out sur les societes par actions a la date mentionnee
below. oi-dessous.
The articles of amalgamation in substance Les statuts de fusion reprennent essentiellement
contain the provisions of the articles of les dispositions des statuts constitutifs de
incorporation of
________________________________________________________________________
and are more particularly set out in these et sont enonces textuellement aux presents statuts.
articles.
Names of amalgamating Ontario Corporation Number Date of Adoption/Approval
corporations Numero de la societe en Date d'adoption ou d'approbation
Denomination sociale des Ontario
societes qui fusionnent
________________________________________________________________________
DIMA PRODUCT
MANUFACTURING INC. 763003 August 14, 1997
LIFTKING INDUSTRIES
INC. 833978 August 14, 1997
6. Restrictions, if any, on business the corporation may Limites, s'il y a lieu, imposees aux activites commerciales
carry on or on powers the corporation may exercise. ou aux pouvoirs de la societe.
None
7. The classes and any maximum number of shares that Categories et nombre maximal, s'il y a lieu, d'actions que
the corporation is authorized to issue: la societe est autorisee a emettre:
The capital of the Corporation shall consist of an unlimited number of
voting Class "A" Preference Shares (the "Class "A" Preference Shares"); an
unlimited number of non-voting Class "B" Preference Shares (the "Class "B"
Preference Shares") and an unlimited number of Common Shares (the
"Common Shares").
4.
8. Rights, privileges, restrictions and Droits, privileges, restrictions et
conditions (if any) attaching to each conditions, s'il y a lieu, rattaches a
class of shares and directors authority chaque categorie d'actions et pouvoirs
with respect to any class of shares des administrateurs relatifs a
which is to be issued in series: chaque categorie d'actions qul peut etre emise en serie:
Class "A" Preference Shares
- ---------------------------
a) References herein to the Redemption Price Per Share in respect of each
Class "A" Preference Share shall mean a fixed amount determined by dividing the
stated capital account of the Class "A" Preference Shares by the number of such
shares in the capital stock of the Corporation then issued and outstanding.
b) The holders of the Class "A" Preference Shares, in priority to the Class
"B" Preference Shares, and Common Shares and any other shares ranking junior to
the Class "A" Preference Shares, shall be entitled to receive and the
Corporation shall pay thereon, as and when declared by the board of directors of
the Corporation in their discretion out of the monies of the Corporation
properly applicable to the payment of dividends, to such preferential,
non-cumulative dividends at a rate of up to 70% of the lending rate charged by
the branch in the Province of Ontario of the Corporation's bankers for the time
being to its most favoured commercial customers on Canadian dollar loans (the
"Prime Rate") determined as at the date of the dividend declaration and
calculated on the Redemption Price Per Share. If within four (4) months after
the expiration of any fiscal year of directors in its discretion shall not
declare the said fixed, preferential, non-cumulative dividend or any part
thereof on the Class "A" Preference Shares for such fiscal year, then the rights
of the holders of the Class "A" Preference Shares to such dividend, or to any
undeclared part thereof for such fiscal year, shall be forever extinguished. The
holders of the Class "A" Preference Shares shall not be entitled to any dividend
other than or in excess of the preferential, non-cumulative dividend at the said
rate hereinbefore provided for, or to participate in any other or additional
earnings or profits of the Corporation.
4A
c) Except with the consent in writing of the holders of all the Class "A"
Preference Shares outstanding, no dividends shall at any time be declared or
paid upon or set aside for payment on any Class "B" Preference Shares, or Common
Shares or on any shares of any other class ranking junior to the Class "A"
Preference Shares, for any fiscal year unless and until the fixed, preferential
non-cumulative dividend for such fiscal year on all the Class "A" Preference
Shares outstanding has been declared and paid or a sum set aside for payment
thereof.
d) The Corporation may, subject to The Business Corporations Act, upon
giving notice as hereinafter provided, redeem at any time the whole or from time
to time any part of the then outstanding Class "A" Preference Shares without the
consent of the holders thereof on payment for each share to be redeemed of the
Redemption Price Per Share, together with an amount equal to all dividends
declared thereon and remaining unpaid (the "Redemption Price"). In any case of
redemption of Class "A" Preference Shares, the Corporation shall, at least
twenty (20) days before the date specified for redemption, mail to each person
who, at the date of mailing, is a registered holder of Class "A" Preference
Shares to be redeemed a notice in writing of the intention of the Corporation to
redeem such Class "A" Preference Shares; such notice shall be mailed in a
prepaid letter addressed to each such shareholder at his address as it appears
on the books of the Corporation or, in the event of the address of any such
shareholder not so appearing, then to the last known address of such
shareholder; provided however, that accidental failure to give any such notice
to one or more of such holders shall not affect the validity of such redemption.
Such notice shall set out the Redemption Price and the date on which redemption
is to take place and, if part only of the shares held by the person to whom such
notice is addressed is to be redeemed, the number thereof so to be redeemed. On
or after the date so specified for redemption, the Corporation
4B
shall pay or cause to be paid to or to the order of the registered holders of
the Class "A" Preference Shares to be redeemed the Redemption Price thereof on
presentation and surrender at the head office of the Corporation, or any other
place designated in such notice, of the certificates representing the Class "A"
Preference Shares called for redemption; such Class "A" Preference Shares shall
thereupon be redeemed. If a part only of the Class "A" Preference Shares
represented by any certificate be redeemed, a new certificate for the balance
shall be issued at the expense of the Corporation. From and after the date
specified in any such notice, the Class "A" Preference Shares called for
redemption shall cease to be entitled to dividends and the holders thereof shall
not be entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the Redemption Price shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of the holders shall remain unaffected. The Corporation shall have the
right, at any time after the mailing of notice of its intention to redeem any
Class "A" Preference Shares as aforesaid, to deposit the Redemption Price of the
Class "A" Preference Shares so called for redemption, or of such of the said
shares as are represented by certificates which have not at the date of such
deposit been surrendered by the holders thereof in connection with such
redemption, to a special account in any chartered bank or any trust company in
Canada named in such notice to be paid without interest to or to the order of
the respective holders of such Class "A" Preference Shares called for redemption
upon presentation and surrender to such bank or trust company of the
certificates representing the same, and upon such deposit being made or upon the
date specified for redemption in such notice, whichever is the later, the Class
"A" Preference Shares in respect whereof such deposit shall have been made shall
be redeemed and the rights of the holders thereof after such deposit or such
redemption date, as
4C
the case may be, shall be limited to receiving without interest their
proportionate part of the total Redemption Price so deposited against
presentation and surrender of the said certificates held by them respectively.
e) The Corporation may, subject to The Business Corporations Act, at any
time and from time to time purchase (if obtainable) for cancellation the whole
or any portion of the Class "A" Preference Shares outstanding from time to time
by invitation for tenders addressed to all the holders of record of the Class
"A" Preference Shares outstanding, or (with the consent of all the holders of
Class "A" Preference Shares) by private contract at the lowest price to prices
at which, in the opinion of the directors, such shares are obtainable but not
exceeding for each share to be purchased for cancellation the Redemption Price
Per Share plus costs of purchase and an amount equal to all dividends declared
thereon and remaining unpaid. Where, in response to any invitation for tenders,
two or more shareholders submit tenders at the same price and such tenders are
accepted by the Corporation as to part only of the shares offered in each such
tender in proportion as nearly as may be to the total number of shares offered
in each such tender (disregarding fractions).
f) The holders of the Class "A" Preference Shares shall be entitled to
receive notice of and to attend and vote at all meetings of Shareholders of the
Corporation and each Class "A" Preference Share shall confer the right of one
(1) vote in person or by proxy at all meetings of the shareholders of the
Corporation.
g) In the event of the liquidation, dissolution or winding up of the
Corporation or other distribution of assets of the Corporation among
shareholders for the purpose of winding up its affairs, the holders of the Class
"A" Prefer-
4D
ence Shares shall be entitled to receive out of the assets and property of the
Corporation, before any amount is paid or any property or assets of the
Corporation distributed to the holders of any Class "B" Preference Shares, or
Common Shares, or shares of any other class ranking junior to the Class "A"
Preference Shares, for each share an amount equal to the Redemption Price Per
Share thereon together with all declared and unpaid preferential, non-cumulative
dividends thereon; after payment to the holders of the Class "A" Preference
Shares of the amounts so payable to them as above provided, they shall not be
entitled to share in any further distribution of the property or assets of the
Corporation. If the assets and property of the Corporation, including surplus
are not sufficient to pay the Redemption Price Per Share together with all
declared and unpaid preferential, non-cumulative dividends, thereon; after
payment to the holders of the Class "A" Preference Shares of the amounts so
payable to them as above provided, they shall not be entitled to share in any
further distribution of the property or assets of the Corporation. If the assets
and property of the Corporation, including surplus are not sufficient to pay the
Redemption Price Per Share together with all declared and unpaid preferential,
non-cumulative dividends, then all of the said assets or the proceeds thereof
shall be distributed pro rata among the holders of the Class "A" Preference
Shares.
Class "B" Preference Shares
- ---------------------------
a) References to the Redemption Price Per Share in respect of the Class "B"
Preference Shares shall mean a fixed amount determined by dividing the stated
capital account of the Class "B" Preference Shares by the number of such shares
in the capital stock of the Corporation then issued and outstanding.
b) The holders of the Class "B" Preference Shares, in priority to the
Common Shares and any other shares ranking junior to the Class "B" Preference
Shares, shall be entitled
4E
to receive and the Corporation shall pay thereon, as and when declared by the
board of directors of the Corporation in their discretion out of the monies of
the Corporation properly applicable to the payment of dividends, to such
preferential, non-cumulative dividends per share at a rate up to 70% of the
Prime Rate determined as at the date of the dividend declaration and calculated
on the Redemption Price Per Share. If within four (4) months after the
expiration of any fiscal year of the Corporation the board of directors in its
discretion shall not declare the said fixed, preferential, non-cumulative
dividend or any part thereof on the Class "B" Preference Shares for such fiscal
year, then the rights of the holders of the Class "B" Preference Shares to such
dividend or to any undeclared part thereof for such fiscal year shall be forever
extinguished. The holders of the Class "B" Preference Shares shall not be
entitled to any dividends other than or in excess of the preferential,
non-cumulative dividends hereinbefore provided for or to participate in any
other or additional earnings or profits of the Corporation.
c) Except with the consent in writing of the holders of all the Class
"B" Preference Shares outstanding, no dividends shall at any time be declared or
paid upon or set aside for payment on any Common Shares or on any shares of any
other class ranking junior to the Class "B" Preference Shares, for any fiscal
year unless and until the fixed, preferential, non-cumulative dividend for such
fiscal year on all the Class "B" Preference Shares outstanding has been declared
and paid or a sum set aside for payment thereof.
d) The Corporation may, subject to the Business Corporations Act,
provided, redeem at any time the whole or from time to time any part of the then
outstanding Class "B" Preference Shares without the consent of the holders
thereof on payment for each share to be redeemed of the Redemption Price Per
Share, together with an amount equal to all divi-
4F
dends declared thereon and remaining unpaid (the "Redemption Price"). In any
case of redemption of Class "B" Preference Shares, the Corporation shall, at
least twenty (20) days before the date specified for redemption, mail to each
person who, at the date of mailing, is a registered holder of Class "B"
Preference Shares to be redeemed a notice in writing of the intention of the
Corporation to redeem such Class "B" Preference Shares; such notice shall be
mailed in a prepaid letter addressed to each such shareholder at his address as
it appears on the books of the Corporation or, in the event of the address of
any such shareholder not so appearing then to the last known address of such
shareholder; provided however, that accidental failure to give any such notice
to one or more of such holders shall not affect the validity of such redemption.
Such notice shall set out the Redemption Price and the date on which redemption
is to take place and, if part only of the shares held by the person to whom such
notice is addressed is to be redeemed, the number thereof so to be redeemed. On
or after the date so specified for redemption, the Corporation shall pay or
cause to be paid to or to the order of the registered holders of the Class "B"
Preference Shares to be redeemed the Redemption Price thereof on presentation
and surrender at the head office of the Corporation, or any other place
designated in such notice, of the certificates representing the Class "B"
Preference Shares called for redemption; such Class "B" Preference Shares shall
thereupon be redeemed. If a part only of the Class "B" Preference Shares
represented by any certificate be redeemed, a new certificate for the balance
shall be issued at the expense of the Corporation. From and after the date
specified in any such notice, the Class "B" Preference Shares called for
redemption shall cease to be entitled to dividends and the holders thereof shall
not be entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the Redemption Price shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of the holders shall
4G
remain unaffected. The Corporation shall have the right, at any time after the
mailing of notice of its intention to redeem any Class "B" Preference Shares as
aforesaid, to deposit the Redemption Price of the Class "B" Preference Shares
so called for redemption, or of such of the said shares as are represented by
certificates which have not at the date of such deposit been surrendered by the
holders thereof in connection with such redemption, to a special account in any
chartered bank or any trust company in Canada named in such notice to be paid
without interest to or to the order of the respective holders of such Class "B"
Preference Shares called for redemption upon presentation and surrender to such
bank or trust company of the certificates representing the same, and upon such
deposit being made or upon the date specified for redemption in such notice,
whichever is the later, the Class "B" Preference Shares in respect whereof such
deposit shall have been made shall be redeemed and the rights of the holders
thereof after such deposit or such redemption date, as the case may be, shall be
limited to receiving without interest their proportionate part of the total
Redemption Price so deposited against presentation and surrender of the said
certificates held by them respectively.
e) The Corporation may, subject to The Business Corporations Act, at any
time and from time to time purchase (if obtainable) for cancellation the whole
or any portion of the Class "B" Preference Shares outstanding from time to time
by invitation for tenders addressed to all the holders of record of the Class
"B" Preference Shares outstanding, or (with the consent of all the holders of
Class "B" Preference Shares) by private contract at the lowest price or prices
at which, in the opinion of the Directors, such shares are obtainable but not
exceeding for each share to be purchased for cancellation the Redemption Price
Per Share plus costs of purchase and an amount equal to all dividends declared
4H
thereon and remaining unpaid. Where, in response to any invitation for tenders,
two or more shareholders submit tenders at the same price and such tenders are
accepted by the Corporation as to part only of the shares offered, the
Corporation shall accept part of the shares offered in each such tender in
proportion as nearly as may be to the total number of shares offered in each
such tender (disregarding fractions).
f) The holders of the Class "B" Preference Shares shall not be entitled
(except as otherwise specifically provided in The Business Corporations Act), to
receive notice or to attend any meeting of the shareholders of the Corporation
and shall not be entitled to vote at any such meeting.
g) In the event of the liquidation, dissolution or winding up of the
Corporation or other distribution of assets of the Corporation among
shareholders for the purpose of winding up its affairs, the holders of the Class
"B" Preference Shares shall be entitled to receive out of the assets and
property of the Corporation, before any amount is paid or any property or assets
of the Corporation distributed to the holders of any Common Shares or shares of
any other class ranking junior to the Class "B" Preference Shares, for each
share an amount equal to the Redemption Price Per Share together with all
declared and unpaid preferential, non-cumulative dividends thereof; after
payment to the holders of the Class "B" Preference Shares of the amounts so
payable to them as above provided, they shall not be entitled to share in any
further distribution of the property or assets of the Corporation. If the assets
and property of the Corporation including surplus are not sufficient to pay the
Redemption Price Per Share together with all declared and unpaid preferential,
non-cumulative dividends, then all of the said assets or the proceeds hereof
shall be distributed pro rata among the holders of the Class "B" Preference
Shares.
4I
Class "A" Preference Shares, Class "B" Preference Shares
a) The foregoing provisions, the provisions of this paragraph and the
provisions of subparagraph (b) hereof may be repealed, altered, modified or
amended by articles of amendment but only with the approval of the holders of
the Class "A" Preference Shares or Class "B" Preference Shares as the case may
be, given as hereinafter specified in addition to any other approval required by
The Business Corporations Act.
b) The approval of the holders of the Class "A" Preference Shares or Class
"B" Preference Shares, as the case may be, as to any and all matters referred to
herein may be given by special resolution passed at a meeting of holders of
Class "A" or Class "B" Preference Shares as the case may be, duly called and
held upon at least ten (10) days' notice at which the holders of at least a
majority of the outstanding Class "A" Preference Shares or Class "B" Preference
Shares, as the case may be, are present or represented by proxy and carried by
the affirmative votes of the holders of not less than two-thirds of the Class
"A" Preference Shares or Class "B" Preference Shares represented and voted at
such meeting cast on a poll (each class voting separately at any combined
meeting). On every poll taken at every such meeting every holder of Class "A"
Preference Shares or Class "B" Preference Shares shall be entitled to one (1)
vote in respect of each Class "A" Preference Share or Class "B" Preference
Share, as the case may be, held.
Common Shares
The Common Shares shall carry and be subject to the following rights,
privileges, restrictions and conditions:
a) To receive notice of and attend all meetings of shareholders of the
Corporation, except class meetings of other classes of shareholders, and each
Common Share shall
4J
confer the right to one (1) vote in person or by proxy at all such meetings of
shareholders of the Corporation;
b) Subject to the rights, privileges, restrictions and conditions attaching
to any other class of shares of the Corporation, to receive any dividend
declared by the Corporation in respect of the Common Shares; and
c) Subject to the rights, privileges, restrictions and conditions attaching
to any other class of shares of the Corporation, the holders of the Common
Shares shall be entitled to receive the remaining property of the Corporation
upon the liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary.
9. The issue, transfer or ownership L'emission, le transfert ou la propriete
of shares is restricted and the d'actions est/n'est pas restraint.
restrictions (if any) are as follows: Les restrictions, s'il y a lieu, sont les suivantes:
Subject to any unanimous shareholders agreement existing from time to time, and
any amendments thereto, the right to transfer any share or shares of the
Corporation shall be restricted in that no shareholder shall be entitled to
transfer any share or shares of the Corporation without either:
a) the previous express sanction of the holders of more than 50% of the Common
Shares of the Corporation for the time being outstanding expressed by a
resolution passed at a meeting of shareholders or by an instrument or
instruments in writing signed by the holders of more than 50% of such
shares; or
b) the previous express sanction of the directors of the Corporation expressed
by a resolution passed by the votes of a majority of the directors of the
Corporation at a meeting of the board of directors or by an instrument or
instruments in writing signed by a majority of the directors.
10. Other provisions, if any, are: Autres dispositions, s'il y a lieu:
1. The Corporation shall have a lien on the shares registered in the name of
the shareholder or his legal representative for a debt of that shareholder
to the Corporation.
2. The number of shareholders of the Corporation, exclusive of persons who are
in its employment and exclusive of persons who, having been formerly in the
employment of the Corporation, were, while in that employment, and have
continued after the termination of that employment to be, shareholders of
the Corporation, is limited to not more than fifty, two or more persons who
are the joint registered owners of one or more shares being counted as one
shareholder.
3. Any invitation to the public to subscribe for securities of the Corporation
is prohibited.
11. The statements required by subsection Les declarations exigees aux termes
178(2) of the Business Corporations du paragraphe 178(2) de la Loi sur les
Act are attached as Schedule "A". societes par actions constituent l'annexe "A".
12. A copy of the amalgamation agreement or Une copie de la convention de fusion ou les
directors resolutions (as the case resolutions des administrateurs
may be) is/are attached as Schedule "B". (selon le cas) constitue(nt) l'annexe "B".
These articles are signed in duplicate.
Les presents statuts sont signes en double exemplaire.
- --------------------------------------------------------------------------------
Names of the amalgamating corporations Denomination sociale des societes qui fusionnent,
and signatures and descriptions of office signature et fonction de leurs
of their proper officers. dirigeants regullerement designes.
DIMA PRODUCT MANUFACTURING INC. LIFTKING INDUSTRIES INC.
Per: Per:
[Signature] [Signature]
- ------------------------------------ -------------------------------------
President President
SCHEDULE "A"
OFFICER'S STATEMENT
I, LOUIS ALDROVANDI, of the Municipality of Metropolitan Toronto, in the
Province of Ontario, state as follows:
1. I am the President of DIMA PRODUCT MANUFACTURING INC. (the "Corporation") and
as such have personal knowledge of the matters hereinafter stated.
2. The Corporation desires to amalgamate with LIFTKING INDUSTRIES INC. and
continue as one corporation under the name of LIFTKING INDUSTRIES, INC.
3. There are reasonable grounds for believing that:
a. each of the amalgamating corporations is and the amalgamated corporation
will be able to pay its liabilities as they become due; and
b. the realizable value of the amalgamated corporation's assets will not be
less than the aggregate of its liabilities and stated capital of all
classes.
4. There are reasonable grounds for believing that no creditor will be
prejudiced by the amalgamation.
5. No creditor has notified the Corporation that he objects to the amalgamation.
6. For the reasons set out in paragraphs 4 and 5 above it is unnecessary for the
Corporation to comply with the notice provisions contained in paragraph
178(2)(d) of the Business Corporations Act (Ontario).
DATED the 14th day of August, 1997.
LOUIS ALDROVANDI
_________________________________________
Louis Aldrovandi
SCHEDULE "B"
AMALGAMATION AGREEMENT
THIS AGREEMENT made the 14th day of August, 1997.
B E T W E E N:
DIMA PRODUCT MANUFACTURING INC., a corporation incorporated under
the laws of the Province of Ontario,
("Dima")
- and -
LIFTKING INDUSTRIES INC., a corporation incorporated under the
laws of the Province of Ontario,
("Liftking")
RECITALS:
A. Dima and Liftking were each incorporated under the Business Corporations
Act (Ontario) or predecessors of that legislation;
B. the Amalgamating Corporations have each made full disclosure to the other
of all their respective assets and liabilities;
C. the authorized capital of Dima is an unlimited number of Class "A"
Preferred Shares, Class "B" Preference Shares and Common Shares, of which
10 Common Shares are issued and outstanding;
D. the authorized capital of Liftking is an unlimited number of Class A
special shares, Class B special shares, Class C special shares and common
shares, of which 1 common share issued and outstanding;
E. the Amalgamating Corporations acting under the authority contained in the
Act have agreed to amalgamate on the terms and conditions hereinafter set
out;
-2-
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are mutually acknowledged,
the parties covenant and agree as follows:
1. In this Agreement:
(a) "Amalgamated Corporation" means the corporation continuing from the
amalgamation of the Amalgamating Corporations;
(b) "Amalgamating Corporations" means Dima and Liftking, the parties to
this Agreement;
(c) "Amalgamation" means the amalgamation of the Amalgamating
Corporations;
(d) "Amalgamation Agreement" or "Agreement" means this amalgamation
agreement; and
(e) "Act" means the Business Corporations Act (Ontario), as now enacted or
as the same may be re-enacted, amended or replaced.
2. Each of the Amalgamating Corporations agree to amalgamate under the
provisions of the Act effective immediately on the commencement of August 14,
1997, and to continue as one corporation on the terms and conditions set out in
this Agreement.
3. The name of the Amalgamated Corporation shall be LIFTKING INDUSTRIES INC.
4. The registered office of the Amalgamated Corporation shall be in the Regional
Municipality of York, in the Province of Ontario and, until otherwise determined
in accordance with the Act, shall be located at 7135 Islington Avenue, First
Floor, Woodbridge, Ontario L4L 1V9.
5. The authorized capital of the Amalgamated Corporation shall consist of an
unlimited number of Class "A" Preference Shares, Class "B" Preference Shares and
Common Shares.
6. The rights, privileges, restrictions and conditions attaching to the Class
"A" Preference Shares shall be as follows:
-3-
(a) References herein to the Redemption Price Per Share in respect of each
Class "A" Preference Share shall mean a fixed amount determined by dividing the
stated capital account of the Class "A" Preference Shares by the number of such
shares in the capital stock of the Corporation then issued and outstanding.
(b) The holders of the Class "A" Preference Shares, in priority to the
Class "B" Preference Shares, and Common Shares and any other shares ranking
junior to the Class "A" Preference Shares, shall be entitled to receive and the
Corporation shall pay thereon, as and when declared by the board of directors of
the Corporation in their discretion out of the monies of the Corporation
properly applicable to the payment of dividends, to such preferential,
non-cumulative dividends at a rate of up to 70% of the lending rate charged by
the branch in the Province of Ontario of the Corporation's bankers for the time
being to its most favoured commercial customers on Canadian dollar loans (the
"Prime Rate") determined as at the date of the dividend declaration and
calculated on the Redemption Price Per Share. If within four (4) months after
the expiration of any fiscal year of directors in its discretion shall not
declare the said fixed, preferential, non-cumulative dividend or any part
thereof on the Class "A" Preference Shares for such fiscal year, then the rights
of the holders of the Class "A" Preference Shares to such dividend, or to any
undeclared part thereof for such fiscal year, shall be forever extinguished. The
holders of the Class "A" Preference Shares shall not be entitled to any dividend
other than or in excess of the preferential, non-cumulative dividend at the said
rate hereinbefore provided for, or to participate in any other or additional
earnings or profits of the Corporation.
-4-
c) Except with the consent in writing of the holders of all the Class
'A' Preference Shares outstanding, no dividends shall at any time be
declared or paid upon or set aside for payment on any Class 'B' Preference
Shares, or Common Shares or on any shares of any other class ranking junior
to the Class 'A' Preference Shares, for any fiscal year unless and until
the fixed, preferential non-cumulative dividend for such fiscal year on all
the Class 'A' Preference Shares outstanding has been declared and paid or a
sum set aside for payment thereof.
d) the Corporation may, subject to The Business Corporations Act, upon
giving notice as hereinafter provided, redeem at any time the whole or from
time to time any part of the then outstanding Class 'A' Preference Shares
without the consent of the holders thereof on payment for each share to be
redeemed of the Redemption Price Per Share, together with an amount equal
to all dividends declared thereon and remaining unpaid (the 'Redemption
Price'). In any case of redemption of Class 'A' Preference Shares, the
Corporation shall, at least twenty (20) days before the the specified for
redemption mail to each person who, at the date of mailing, is a registered
holder of Class 'A' Preference Shares to be redeemed a notice in writing of
the intention of the Corporation to redeem such Class 'A' Preference
Shares; such notice shall be mailed in a prepaid letter addressed to each
such shareholder at his address as it appears on the books of the
Corporation or, in the event of the address of any such shareholder not so
appearing, then to the last known address of such shareholder; provided
however, that accidental failure to give any such notice to one or more of
such holders shall not affect the validity of such redemption. Such notice
shall set out the Redemption Price and the date on which redemption is to
take place and, if part only of the shares held by the person to whom such
notice is addressed is to be redeemed, the number thereof so to be
redeemed. On or after the date so specified for redemption, the Corporation
-5-
shall pay or cause to be paid to or to the order of the registered holders
of the Class 'A' Preference Shares to be redeemed the Redemption Price
thereof on presentation and surrender at the head office of the
Corporation, or any other place designated in such notice, of the
certificates representing the Class 'A' Preference Shares called for
redemption; such Class 'A' Preference Shares shall thereupon be redeemed.
If a part only of the Class 'A' Preference Shares represented by any
certificate be redeemed, a new certificate for the balance shall be issued
at the expense of the Corporation. From and after the date specified in any
such notice, the Class 'A' Preference Shares called for redemption shall
cease to be entitled to dividends and the holders thereof shall not be
entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the Redemption Price shall not be made upon
presentation of certificates in accordance with the have foregoing
provisions, in which case the rights of the holders shall remain
unaffected. The Corporation shall have the right, at any time after the
mailing of notice of its intention to redeem any Class 'A' Preference
Shares as aforesaid, to deposit the Redemption Price of the Class 'A'
Preference Shares so called for redemption, or of such of the said shares
as are represented by certificates which ave not at the date of such
deposit been surrendered by the holders thereof in connection with such
redemption, to a special account in any chartered bank or any trust company
in Canada named in such notice to be paid without interest to or to the
order of the respective holders of such Class 'A' Preference Shares called
for redemption upon presentation and surrender to such bank or trust
company of the certificates representing the same, and upon such deposit
being made or upon the date specified for redemption in such notice,
whichever is the later, the Class 'A' Preference Shares in respect whereof
such deposit shall have been made shall be redeemed and the rights of the
holders thereof after such deposit or such redemption date, as
-6-
the case may be, limited to receiving without interest their proportionate
part of the total Redemption Price so deposited against presentation and
surrender of the said certificates held by them respectively.
e) The Corporation may, subject to The Business Corporations Act, at
any time and from time to time purchase (if obtainable) for cancellation
the whole or any portion of the Class 'A' Preference Shares outstanding
from time to time by invitation for tenders addressed to all the holders of
record of the Class 'A' Preference Shares outstanding, or (with the consent
of all the holders of Class 'A' Preference Shares) by private contract at
the lowest price to prices at which, in the opinion of the directors, such
shares are obtainable but not exceeding for each share to be
purchased for cancellation the Redemption Price Per Share plus costs of
purchase and an amount equal to all dividends declared thereon and
remaining unpaid. Where, in response to any invitation for tenders, two or
more shareholders submit tenders at the same price and such tenders are
accepted by the Corporation as to part only of the shares offered in each
such tender in proportion as nearly as may be to the total number of shares
offered in each such tender (disregarding fractions).
f) The holders of the Class 'A' Preference Shares shall be entitled to
receive notice of and to attend and vote at all meetings of Shareholders of
the Corporation and each Class 'A' Preference Share shall confer the right
of one (1) vote in person or by proxy at all meetings of the shareholders
of the Corporation.
g) In the event of the liquidation, dissolution or winding up of the
Corporation or other distribution of assets of the Corporation among
shareholders for the purpose of winding up its affairs, the holders of the
Class 'A' Prefer-
-7-
ence Shares shall be entitled to receive out of the assets
and property of the Corporation, before any amount is paid or any property
or assets of the Corporation distributed to the holders of any Class 'B'
Preference Shares, or Common Shares, or shares of any other class ranking
junior to the Class 'A' Preference Shares, for each share an amount equal
to the Redemption Price Per Share thereon together with all declared and
unpaid preferential, non-cumulative dividends thereon; after payment to the
holders of the Class 'A' Preference Shares of the amounts so payable to
them as above provided, they shall not be entitled to share in any further
distribution of the property or assets of the Corporation. If the assets
and property of the Corporation, including surplus are not sufficient to
pay the Redemption Price Per Share together with all declared and unpaid
preferential, non-cumulative dividends, thereon; after payment to the
holders of the Class 'A' Preference Shares of the amounts so payable to
them as above provided, they shall not be entitled to share in any further
distribution of the property or assets of the Corporation. If the assets
and property of the Corporation, including surplus are not sufficient to
pay the Redemption Price Per Share together with all declared and unpaid
preferential, non-cumulative dividends, then all of the said assets or the
proceeds thereof shall be distributed pro rata among the holders of the
Class 'A' Preference Shares.
7. the rights, privileges, restrictions and conditions attaching to the Class
'B' Preference Shares shall be as follows:
a) References to the Redemption Price Per Share in respect of the
Class 'B' Preference Shares shall mean a fixed amount determined by
dividing the stated capital account of the Class 'B' Preference Shares by
the number of such shares in the capital stock of the Corporation then
issued and outstanding.
b) The holders o of the Class 'B' Preference Shares, in priority to
the Common Shares and any other shares ranking junior to the Class 'B'
Preference Shares, shall be entitled
-8-
to receive and the Corporation shall pay thereon, as and when declared by the
board of directors of the Corporation in their discretion out of the monies of
the Corporation properly applicable to the payment of dividends, to such
preferential, non-cumulative dividends per share at a rate up to 70% of the
Prime Rate determined as at the date of the dividend declaration and calculated
on the Redemption Price Per Share. If within four (4) months after the
expiration of any fiscal year of the Corporation the board of directors in its
discretion shall not declare the said fixed, preferential, non-cumulative
dividend or any part thereof on the Class "B" Preference Shares for such fiscal
year, then the rights of the holders of the Class "B" Preference Shares to such
dividend or to any undeclared part thereof for such fiscal year shall be forever
extinguished. The holders of the Class "B" Preference Shares shall not be
entitled to any dividends other than or in excess of the preferential,
non-cumulative dividends hereinbefore provided for or to participate in any
other or additional earnings or profits of the Corporation.
c) Except with the consent in writing of the holders of all the Class "B"
Preference Shares outstanding, no dividends shall at any time be declared or
paid upon or set aside for payment on any Common Shares or on any shares of any
other class ranking junior to the Class "B" Preference Shares, for any fiscal
year unless and until the fixed, preferential, non-cumulative dividend for such
fiscal year on all the Class "B" Preference Shares outstanding has been declared
and paid or a sum set aside for payment thereof.
d) The Corporation may, subject to the Business Corporations Act,
provided, redeem at any time the whole or from time to time any part of the then
outstanding Class "B" Preference Shares without the consent of the holders
thereof on payment for each share to be redeemed of the Redemption Price Per
Share, together with an amount equal to all divi-
-9-
dends declared thereon and remaining unpaid (the "Redemption Price"). In any
case of redemption of Class "B" Preference Shares, the Corporation shall, at
least twenty (20) days before the date specified for redemption, mail to each
person who, at the date of mailing, is a registered holder of Class "B"
Preference Shares to be redeemed a notice in writing of the intention of the
Corporation to redeem such Class "B" Preference Shares; such notice shall be
mailed in a prepaid letter addressed to each such shareholder at his address as
it appears on the books of the Corporation or, in the event of the address of
any such shareholder not so appearing then to the last known address of such
shareholder; provided however, that accidental failure to give any such notice
to one or more such holders shall not affect the validity of such redemption.
Such notice shall set out the Redemption Price and the date on which redemption
is to take place and, if part only of the shares held by the person to whom such
notice is addressed is to be redeemed, the number thereof so to be redeemed. On
or after the date so specified for redemption, the Corporation shall pay or
cause to be paid to or to the order of the registered holders of the Class "B"
Preference Shares to be redeemed the Redemption Price thereof on presentation
and surrender at the head office of the Corporation, or any other place
designated in such notice, of the certificates representing the Class "B"
Preference Shares called for redemption; such Class "B" Preference Shares shall
thereupon be redeemed. If a part only of the Class "B" Preference Shares
represented by any certificate be redeemed, a new certificate for the balance
shall be issued at the expense of the Corporation. From and after the date
specified in any such notice, the Class "B" Preference Shares called for
redemption shall cease to be entitled to dividends and the holders thereof shall
not be entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the Redemption Price shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of the holders shall
-10-
remain unaffected. The Corporation shall have the right, at any time after the
mailing of notice of its intention to redeem any Class "B" Preference Shares as
aforesaid, to deposit the Redemption Price of the Class "B" Preference Shares so
called for redemption, or of such of the said shares as are represented by
certificates which have not at the date of such deposit been surrendered by the
holders thereof in connection with such redemption, to a special account in any
chartered bank or any trust company in Canada named in such notice to be paid
without interest to or to the order of the respective holders of such Class "B"
Preference Shares called for redemption upon presentation and surrender to such
bank or trust company of the certificates representing the same, and upon such
deposit being made or upon the date specified for redemption in such notice,
whichever is the later, the Class "B" Preference Shares in respect whereof such
deposit shall have been made shall be redeemed and the rights of the holders
thereof after such deposit or such redemption date, as the case may be, shall be
limited to receiving without interest their proportionate part of the total
Redemption Price so deposited against presentation and surrender of the said
certificates held by them respectively.
e) The Corporation may, subject to The Business Corporations Act, at any
time and from time to time purchase (if obtainable) for cancellation the whole
or any portion of the Class "B" Preference Shares outstanding from time to time
by invitation for tenders addressed to all the holders of record of the Class
"B" Preference Shares outstanding, or (with the consent of all the holders of
Class "B" Preference Shares) by private contract at the lowest price or prices
at which, in the opinion of the Directors, such shares are obtainable but not
exceeding for each share to be purchased for cancellation the Redemption Price
Per Share plus costs of purchase and an amount equal to all dividends declared
-11-
thereon and remaining unpaid. Where, in response to any invitation for tenders,
two or more shareholders submit tenders at the same price and such tenders are
accepted by the Corporation as to part only of the shares offered, the
Corporation shall accept part of the shares offered in each such tender in
proportion as nearly as may be to the total number of shares offered in each
such tender (disregarding fractions).
f) The holders of the Class "B" Preference Shares shall not be entitled
(except as otherwise specifically provided in The Business Corporations Act), to
receive notice or to attend any meeting of the shareholders of the Corporation
and shall not be entitled to vote at any such meeting.
g) In the event of the liquidation, dissolution or winding up of the
Corporation or other distribution of assets of the Corporation among
shareholders for the purpose of winding up its affairs, the holders of the Class
"B" Preference Shares shall be entitled to receive out of the assets and
property of the Corporation, before any amount is paid or any property or assets
of the Corporation distributed to the holders of any Common Shares or shares of
any other class ranking junior to the Class "B" Preference Shares, for each
share an amount equal to the Redemption Price Per Share together with all
declared and unpaid preferential, non-cumulative dividends thereon; after
payment to the holders of the Class "B" Preference Shares of the amounts so
payable to them as above provided, they shall not be entitled to share in any
further distribution of the property or assets of the Corporation. If the assets
and property of the Corporation including surplus are not sufficient to pay the
Redemption Price Per Share together with all declared and unpaid preferential,
non-cumulative dividends, then all of the said assets or the proceeds hereof
shall be distributed pro rata among the holders of the Class "B" Preference
Shares.
- 12 -
8. Class "A" Preference Shares, Class "B" Preference Shares
a) The foregoing provisions, the provisions of this paragraph and the
provisions of subparagraph (b) hereof may be repealed, altered, modified or
amended by articles of amendment but only with the approval of the holders of
the Class "A" Preference Shares or Class "B" Preference Shares as the case may
be, given as hereinafter specified in addition to any other approval required by
The Business Corporations Act.
b) The approval of the holders of the Class "A" Preference Shares or Class
"B" Preference Shares, as the case may be, as to any and all matters referred to
herein may be given by special resolution passed at a meeting of holders of
Class "A" or Class "B" Preference Shares as the case may be, duly called and
held upon at least ten (10) days' notice at which the holders of at least a
majority of the outstanding Class "A" Preference Shares or Class "B" Preference
Shares, as the case may be, are present or represented by proxy and carried by
the affirmative votes of the holders of not less than two-thirds of the Class
"A" Preference Shares or Class "B" Preference Shares represented and voted at
such meeting cast on a poll (each class voting separately at any combined
meeting). On every poll taken at every such meeting every holder of Class "A"
Preference Shares or Class "B" Preference Shares shall be entitled to one (1)
vote in respect of each Class "A" Preference Share or Class "B" Preference
Share, as the case may be, held.
- 13 -
9. The rights, privileges, restrictions and conditions attaching to the Common
Shares shall be as follows:
a) To receive notice of and attend all meetings of shareholders of the
Corporation, except class meetings of other classes of shareholders, and each
Common Share shall confer the right to one (1) vote in person or by proxy at all
such meetings of shareholders of the Corporation;
b) Subject to the rights, privileges, restrictions and conditions attaching
to any other class of shares of the Corporation, to receive any dividend
declared by the Corporation in respect of the Common Shares; and
c) Subject to the rights, privileges, restrictions and conditions attaching
to any other class of shares of the Corporation, the holders of the Common
Shares shall be entitled to receive the remaining property of the Corporation
upon the liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary.
- 14 -
10. The issued and outstanding shares in the Amalgamating Corporation shall be
converted into issued and outstanding shares of the Amalgamated Corporation
as follows:
(a) The 10 common shares in the capital of Dima shall be converted into
4,053,643 common shares in the capital of the Amalgamated Corporation;
(b) The 1 common share in the capital of Liftking shall be cancelled
without any repayment of capital in respect thereof and shall not be
converted into shares of the Amalgamated Corporation;
provided that the issued capital of the Amalgamated Corporation shall be equal
to the aggregate of the issued capitals of the Amalgamating Corporations
immediately before the amalgamation becoming effective, subject to the decrease
provided for in clause 19(b) above.
11. On the Articles of Amalgamation in respect of the Amalgamation becoming
effective, the shareholders of the Amalgamating Corporations shall, when
requested by the Amalgamated Corporation, surrender the certificates
representing the shares held by them in the Amalgamating Corporations and shall,
subject to the provisions of the Act, be entitled in return to receive
certificates for shares of the Amalgamated Corporation on the basis aforesaid.
12. The board of directors of the Amalgamated Corporation, unless otherwise
changed in accordance with the Act, shall consist of a minimum number of one
director and a maximum of ten directors. The first director of the Amalgamated
Corporation shall be the person whose names and addresses are set out below, who
shall hold office until the first annual meeting of the Amalgamated Corporation,
or until his successor is elected or appointed:
Resident Canadian
Name Residence Address (state yes/no)
---- ----------------- -----------------
Louis Aldrovandi 38 Arkona Drive Yes
Agincourt, Ontario
M1T 1X3
The said first director shall hold office until the first annual meeting of the
Amalgamated Corporation, or until his successor is elected or appointed. The
subsequent directors shall be elected each year thereafter at either a general
meeting or the annual meeting of the shareholders by a majority of the votes
cast at such meeting. The management and supervision of the business and affairs
of the Amalgamated Corporation shall be under the control of the board of
directors from time to time, subject to the provisions of the Act.
13. The by-laws of the Amalgamated Corporation shall be those of Dima.
-15-
14. There shall be no restrictions on restrictions on the business that the
Amalgamated Corporation may carry on nor on the powers that the Amalgamated
Corporation may exercise.
15. The issue, transfer or ownership of shares is restricted and the
restrictions are as follows:
Subject to any unanimous shareholders agreement existing from time to time,
and any amendments thereto, the right to transfer any share or shares of the
Corporation shall be restricted in that no shareholde shall be entitled to
transfer any share or shares of the Corporation without either:
a) the previous express sanction of the holders of more than 50% of the
Common Shares of the Corporation for the time being outstanding
expressed by a resolution passed at a meeting of shareholders or by an
instrument or instruments in writing signed by the holders of more than
50% of such shares; or
b) the previous express sanction of the directors of the Corporation
expressed by a resolution passed by the votes of a majority of the
directors of the Corporation at a meeting of the board of directors or
by an instrument or instruments in writing signed by a majority of the
directors.
16. The following provisions shall also apply to the Amalgamated Corporations
a) The Corporation shall have a lien on the shares registered in the name
of the shareholder or his legal representative for a debt of that
shareholder to the Corporation.
b) The number of shareholders of the Corporation, exclusive of persons who
are in its employment and exclusive of persons who, having been formerly
in the employment of the Corporation, were, while in that employment,
and have continued after the termination of that employment to be,
shareholders of the Corporation, is limited to not more than fifty, two
or more persons who are the joint registered owners of one or more
shares being counted as one shareholder.
c) Any invitation to the public to subscribe for securities of the
Corporation is prohibited.
-16-
17. The Amalgamating Corporations may, by resolution of their respective boards
of directors, consent to any alteration or modification of this Agreement with
which the shareholders of such corporations may agree.
18. On each of the Amalgamating Corporations approving this Agreement by special
resolution, the parties shall jointly file articles of amalgamation in
accordance with the Act for the purpose of bringing the Amalgamation into
effect.
IN WITNESS OF WHICH the parties have executed this Agreement.
DIMA PRODUCT MANUFACTURING INC.
Per:
[SIGNATURE]
-----------------------------------------
President
LIFTKING INDUSTRIES INC.
Per:
[SIGNATURE]
-----------------------------------------
President
For Ministry Use Only Ontario Corporation Number
A l'usage exclusif du ministere Numero de la societe en Ontario
1251018
- --------------------------------------------------------------------------------
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
Form 3 1. The name of the corporation is: Denomination sociale de la societe:
Business
Corporations LIFTKING INDUSTRIES INC.
Act
Formule 3 2. The name of the corporation is changed Nouvelle denomination sociale de
Loi sur les to (if applicable): la societe (s'il y a lieu):
societes par
actions
3. Date of incorporation/amalgamation: Date de la constitution ou de la
fusion:
1997 August 14th
- --------------------------------------------------------------------------------
(Year, Month, Day)
(annee, mois, jour)
4. The articles of the corporation are Les status de la societe sont
amended as follows: modifies de la facon suivante.
1. To limit the number of common shares that the Corporation is authorized to
issue to 50,000,000.
2. To cancel all of the authorized and unissued Class 'A' Preference Shares and
Class 'B' Preference Shares in the capital of the Corporation.
3. To declare that after giving effect to the foregoing, the authorized capital
of the Corporation shall consist of 50,000,000 common shares.
5. The amendment has been duly La modification a ete dument autorisee
authorized as required by Sections 168 conformement aux articles 168 et 170
& 170 (as applicable) of the Business (selon le cas) de la Loir sur les
Corporations Act. societes par actions.
6. The resolution authorizing the Les actionnaires ou les administrateurs
amendment was approved by the (selon le cas) de la societe ont
shareholders/directors (as applicable) approuve la resolution autorisant la
of the corporation on modification le
1997 August 22nd
- -------------------------------------------------------------------------------------------------------------
(Year, Month, Day)
(annee, mois, jour)
These articles are signed in duplicate. Les presents status sont signes en double
exemplaire.
LIFTKING INDUSTRIES INC.
--------------------------------------------
(Name of Corporation)
(Denomination sociale de la societe)
By:/Par: [SIGNATURE] President
-------------------------------------------------
(Signature) (Description of Office)
(Signature) (Fonction)