Exhibit 2.2
EXECUTION COPY
9139-4460 QUEBEC INC.
-AND-
9139-7158 QUEBEC INC.
-AND-
3087053 NOVA SCOTIA COMPANY
-AND -
MAAX INC.
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AMALGAMATION AGREEMENT
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MARCH 10, 2004
TABLE OF CONTENTS
Page
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ARTICLE 1 INTERPRETATION.............................................. 2
1.1 Definitions................................................. 2
1.2 Interpretation Not Affected by Headings, etc................ 4
1.3 Currency.................................................... 4
1.4 Number, etc................................................. 4
1.5 Date For Any Action......................................... 4
ARTICLE 2 AMALGAMATION................................................ 4
2.1 Amalgamation................................................ 4
2.2 Rights and Obligations...................................... 4
2.3 Name........................................................ 4
2.4 Head Office................................................. 5
2.5 Activities.................................................. 5
2.6 Share Capital............................................... 5
2.7 Restrictions on Transfer and Other Provisions............... 5
2.8 By-Laws..................................................... 5
ARTICLE 3 BOARD OF DIRECTORS.......................................... 5
3.1 Board of directors.......................................... 5
ARTICLE 4 AMALGAMATION EVENTS......................................... 6
4.1 Amalgamation Events......................................... 6
ARTICLE 5 TERMINATION................................................. 6
5.1 Termination................................................. 6
ARTICLE 6 ARTICLES OF AMALGAMATION.................................... 7
6.1 Articles of Amalgamation.................................... 7
ARTICLE 7 GENERAL..................................................... 7
7.1 Cooperation / Further Assurances............................ 7
7.2 Governing Law............................................... 7
7.3 Forum; Jurisdiction......................................... 7
7.4 Counterparts................................................ 7
7.5 Time........................................................ 8
7.6 Amendments.................................................. 8
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AMALGAMATION AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 10th day of March, 2004,
BETWEEN: 9139-4460 QUEBEC INC., a company incorporated under the
laws of the Province of Quebec (hereinafter referred to
as "SUBCO")
AND: 9139-7158 QUEBEC INC., a company governed under the laws
of the Province of Quebec (hereinafter referred to as
"SUBCO II")
AND: 3087053 NOVA SCOTIA COMPANY, a company governed under
the laws of the Province of Nova Scotia (hereinafter
referred to as "NEWCO II")
AND: MAAX INC., a company amalgamated under the laws of the
Province of Quebec (hereinafter referred to as "MAAX")
WHEREAS Subco was incorporated under Part IA of the Companies Act (Quebec) by
certificate of incorporation dated February 27, 2004;
WHEREAS Subco II was incorporated under Part IA of the Companies Act (Quebec) by
certificate of incorporation dated March 5, 2004;
WHEREAS Newco II was incorporated under the Companies Act (Nova Scotia) on March
5, 2004;
WHEREAS MAAX was amalgamated under Part IA of the Companies Act (Quebec) by
certificate of amalgamation dated August 1, 1990;
WHEREAS the authorized share capital of MAAX consists of an unlimited number of
common shares, class A preferred shares and class B preferred shares, all
without par value, of which 24,395,459 common shares and no class A preferred
shares and no class B preferred shares have been issued and are outstanding as
at the date hereof as fully paid and non-assessable;
WHEREAS the authorized share capital of each of Subco and Subco II consists of
an unlimited number of (i) common shares, without par value, and (ii) redeemable
preferred shares, with a par value of $100 per share, of which 500 common shares
and no redeemable preferred shares have been issued and are outstanding as of
the date hereof as fully paid and non-assessable;
WHEREAS Subco, Subco II, Newco II, MAAX and 3087052 Nova Scotia Company have
entered into a merger agreement dated the date hereof with respect to the
transactions contemplated herein (the "MERGER AGREEMENT");
WHEREAS, as contemplated in the Merger Agreement, Subco, Subco II and MAAX,
availing themselves of Part IA of the Companies Act (Quebec), wish to amalgamate
on the terms and conditions set forth herein and in the Merger Agreement;
NOW THEREFORE this Agreement witnesses that, in consideration of the respective
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith, the following terms shall have the
following meanings, respectively:
1.1.1 "AMALCO" means MAAX Inc., the company resulting from the
Amalgamation;
1.1.2 "AMALGAMATION" means an amalgamation between Subco, Subco II and
MAAX under Part IA of the Companies Act giving effect to the
transactions described in this Agreement;
1.1.3 "ARTICLES OF AMALGAMATION" means the articles confirming the
Amalgamation required under the Companies Act to be filed with the
Enterprise Registrar, substantially in the form attached hereto as
Schedule 1.1.3;
1.1.4 "BUSINESS DAY" means any day, other than a Saturday, Sunday or a
statutory holiday in the Province of Quebec, the Province of Ontario
or in the State of Massachusetts, on which banks are open for
business in the City of Montreal, the City of Toronto and the City
of Boston;
1.1.5 "CERTIFICATE OF AMALGAMATION" means the certificate issued by the
Enterprise Registrar attesting to the Amalgamation pursuant to
Section 123.119 of the Companies Act;
1.1.6 "CIRCULAR" means the notice of the MAAX Meeting and accompanying
management information circular in the French and English languages,
including all schedules thereto, to be prepared and sent by MAAX to
Shareholders in connection with the MAAX Meeting;
1.1.7 "COMMON SHARES" (individually, a "COMMON SHARE") means the common
shares in the share capital of Amalco;
1.1.8 "COMPANIES ACT" means the Companies Act (Quebec) as now in effect
and as it may be amended from time to time prior to the Effective
Date;
1.1.9 "DEPOSITORY" means National Bank Trust Inc. or any other depository
designated by Subco or Subco II;
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1.1.10 "EFFECTIVE DATE" means the date shown on the Certificate of
Amalgamation;
1.1.11 "ENTERPRISE REGISTRAR" means the enterprise registrar acting under
the Companies Act;
1.1.12 "GOVERNMENTAL ENTITY" (collectively, the "GOVERNMENTAL ENTITIES")
means any (a) multinational, federal, provincial, state, regional,
municipal, local or other government, governmental or public
department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign, (b) any
subdivision, agent, commission, board, or authority of any of the
foregoing, or (c) any quasi-governmental or private body
exercising any regulatory, expropriation or taxing authority under
or for the account of any of the foregoing;
1.1.13 "LAWS" (individually, a "LAW") means all laws, statutes, codes,
ordinances, decrees, rules, regulations, by-laws, statutory rules,
principles of law, published policies and guidelines, judicial or
arbitral or administrative or ministerial or departmental or
regulatory judgments, orders, decisions, rulings or awards and
terms and conditions of any grant of approval, permission,
authority or license of any Governmental Entity, self-regulatory
authority or statutory body (including The Toronto Stock Exchange
or any other stock exchange), and the term "applicable" with
respect to such Laws and in the context that refers to one or more
Persons, means that such Laws apply to such Person or Persons or
its or their business, undertaking, property or securities and
emanate from a Person having legal jurisdiction over the Person or
Persons or its or their business, undertaking, property or
securities;
1.1.14 "LETTER OF TRANSMITTAL" means the form letter of transmittal
enclosed with the Circular;
1.1.15 "MAAX MEETING" means the special meeting of Shareholders (including
any adjournment thereof) that is to be convened to consider and,
if deemed advisable, to approve the Amalgamation;
1.1.16 "MAAX SHARES" (individually, a "MAAX SHARE") means all common
shares in the share capital of MAAX;
1.1.17 "MERGER AGREEMENT" has the meaning ascribed thereto in the
preambule of this Agreement;
1.1.18 "PERSON" includes any individual, firm, partnership, joint venture,
venture capital fund, association, trust, trustee, executor,
administrator, legal personal representative, estate, group, body
corporate, corporation, unincorporated association or
organization, Governmental Entity, syndicate or other entity,
whether or not having legal status;
1.1.19 "REDEEMABLE SHARES" means the redeemable preferred shares in the
share capital of Amalco;
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1.1.20 "SHAREHOLDER" (collectively, the "SHAREHOLDERS") means a
registered holder of the MAAX Shares, from time to time.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Agreement into Articles, Sections, Schedules and
other portions and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation
hereof. Unless otherwise indicated, all references to an "Article",
"Section" or "Schedule" followed by a number and/or a letter refer to the
specified Article, Section or Schedule of this Agreement. The terms "this
Agreement", "hereof", "herein" and "hereunder" and similar expressions
refer to this Agreement (including the Schedules hereto) and not to any
particular Article, Section or other portion hereof and include any
agreement or instrument supplementary or ancillary hereto.
1.3 CURRENCY
All sums of money referred to in this Agreement are expressed in Canadian
dollars.
1.4 NUMBER, ETC.
Unless the context otherwise requires, words importing the singular shall
include the plural and vice versa and words importing any gender shall
include all genders.
1.5 DATE FOR ANY ACTION
In the event that any date on which any action is required to be taken
hereunder by any of the parties hereto is not a Business Day, such action
shall be required to be taken on the next succeeding day which is a
Business Day.
ARTICLE 2
AMALGAMATION
2.1 AMALGAMATION
MAAX, Subco and Subco II hereby agree to amalgamate and to continue as one
company effective on the Effective Date pursuant to the provisions of Part
IA of the Companies Act, on the terms and conditions set forth herein and
in the Merger Agreement.
2.2 RIGHTS AND OBLIGATIONS
From the Effective Date, Amalco shall (a) possess all of the property,
rights and assets of MAAX, Subco and Subco II, and (b) assume all of their
obligations.
2.3 NAME
The name of Amalco shall be "MAAX Inc.".
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2.4 HEAD OFFICE
The head office of Amalco shall be situated in the Judicial District of
Beauce, Province of Quebec.
2.5 ACTIVITIES
There will be no limitations on the activities of Amalco.
2.6 SHARE CAPITAL
2.6.1 The authorized share capital of Amalco shall consist of an unlimited
number of (i) Common Shares, without par value, and (ii) Redeemable
Shares, with a par value of $22.50 per share; and
2.6.2 The rights, privileges, conditions and restrictions attached to the
Common Shares and the Redeemable Shares are described in Schedule 1
of the draft articles of amalgamation attached hereto as Schedule
1.1.3.
2.7 RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS
2.7.1 The restrictions on transfer attached to the Common Shares and
Redeemable Shares are described in Schedule 2 of the draft articles
of amalgamation attached hereto as Schedule 1.1.3; and
2.7.2 The other provisions attached to the Common Shares and Redeemable
Shares are described in Schedule 3 and Schedule 4 of the draft
articles of amalgamation attached hereto as Schedule 1.1.3.
2.8 BY-LAWS
The by-laws of Amalco shall be those of Subco, unless and until repealed
or amended.
ARTICLE 3
BOARD OF DIRECTORS
3.1 BOARD OF DIRECTORS
The board of directors of Amalco shall consist of a minimum of three and a
maximum of ten directors. The initial board of directors of Amalco shall
consist of four directors. The name, occupation and address of the first
directors shall be as follows:
NAME OCCUPATION ADDRESS
Steven G. Segal Partner [address]
James C. Rhee Vice President [address]
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NAME OCCUPATION ADDRESS
Andre La Forge Senior Vice President [address]
Michael Graham Portfolio Manager [address]
ARTICLE 4
AMALGAMATION EVENTS
4.1 AMALGAMATION EVENTS
Upon the Effective Date:
4.1.1 all issued and outstanding MAAX Shares shall be converted into fully
paid and non-assessable Redeemable Shares, each having a paid up
capital equal to its par value, on the basis of one issued, fully
paid and non-assessable Redeemable Share for each issued and
outstanding MAAX Share;
4.1.2 all issued and outstanding common shares of Subco and all redeemable
preferred shares of Subco shall be converted into Common Shares,
having an aggregate paid up capital representing the amount by which
the aggregate paid up capital of (i) all issued and outstanding
common shares and redeemable preferred shares of Subco, (ii) all
issued and outstanding common shares and redeemable preferred shares
of Subco II, and (iii) all issued and outstanding MAAX Shares,
exceeds the aggregate paid up capital of the Redeemable Shares, on
the basis of one issued, fully paid and non-assessable Common Share
for each issued and outstanding common share or redeemable preferred
share of Subco; and
4.1.3 all issued and outstanding common shares and redeemable preferred
shares of Subco II shall be cancelled in consideration of the
issuance by Newco II to 3087052 Nova Scotia Company of shares,
having an aggregate value equal to the fair market value of all
issued and outstanding common shares and redeemable preferred shares
of Subco II held by 3087052 Nova Scotia Company immediately prior to
the Amalgamation, on the basis of one issued, fully paid and
assessable share of Newco II for each issued and outstanding common
share and redeemable preferred share of Subco II.
ARTICLE 5
TERMINATION
5.1 TERMINATION
Without prejudice to any other rights or recourses of the parties hereto
and notwithstanding any other provision hereof, this Agreement shall
automatically
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terminate, without notice, immediately upon the termination of the Merger
Agreement, and be of no further force or effect.
ARTICLE 6
ARTICLES OF AMALGAMATION
6.1 ARTICLES OF AMALGAMATION
Subject to the confirmation of a by-law approving this Agreement by the
Shareholders at the MAAX Meeting in accordance with the Companies Act and
other applicable Laws and provided that the conditions specified in the
Merger Agreement have been satisfied or waived and provided further that
this Agreement has not otherwise been terminated, MAAX, Subco and Subco II
shall as promptly as practicable thereafter complete the Amalgamation and
file with the Enterprise Registrar the Articles of Amalgamation pursuant
to the Companies Act and such other documents as may be required pursuant
to the Companies Act.
ARTICLE 7
GENERAL
7.1 COOPERATION / FURTHER ASSURANCES
Each of the parties hereto agrees to cooperate in good faith and to take
all reasonable steps and actions after the date hereof, as are not adverse
to the party requested to take any such step or action, to complete the
Amalgamation and the other transactions contemplated hereby. Each party
hereto shall, from time to time, and at all times hereafter, at the
request of another party hereto, but without further consideration, do all
such further acts and execute and deliver all such further documents and
instruments as shall be reasonably required in order to fully perform,
carry out or better evidence the terms and intent hereof.
7.2 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
Laws of the Province of Quebec and the Laws of Canada applicable therein.
7.3 FORUM; JURISDICTION
The parties hereby submit to the exclusive jurisdiction of the competent
court in the judicial district of Montreal, Province of Quebec for any
dispute, disagreement, controversy or Claim arising out of or in
connection with the transactions contemplated by this Agreement.
7.4 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall be
deemed to constitute one and the same instrument.
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7.5 TIME
Time shall be of the essence of this Agreement.
7.6 AMENDMENTS
This Agreement may not be modified, amended, altered or supplemented
except in the manner contemplated herein and upon the execution and
delivery of a written agreement executed by all parties, except that Newco
II may change the consideration that it provides to 3087052 Nova Scotia
Company without having to obtain the consent of the other parties hereto.
(Signatures on next page)
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first written above.
9139-7158 QUEBEC INC. 9139-4460 QUEBEC INC.
Per: /s/ James C. Rhee Per: /s/ James C. Rhee
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James C. Rhee James C. Rhee
Secretary Secretary
3087053 NOVA SCOTIA COMPANY MAAX INC.
Per: /s/ James C. Rhee Per: /s/ Placide Poulin
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James C. Rhee Placide Poulin
Secretary Chairman of the Board of Directors
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