EXHIBIT 3.5
Government of Quebec
INSPECTOR GENERAL OF FINANCIAL INSTITUTIONS
(unofficial English Translation)
Form 1
ARTICLES OF INCORPORATION
Companies Act, R.S.Q., c. C-38
Part 1A
1. Name
9022-3751 Quebec Inc.
2 Quebec Judicial District of the company head office
Saint-Francois
3 Precise number or minimum and maximum number of directors
Minimum 1 Maximum 10
4 Effective date, if later than date of filing
5 Description of share capital
See Schedule A, which is part of the forgoing
6 Restrictions on the transfer of shares, if any
See Schedule B, which is part of the forgoing
7 Limits on activity, if any
N/A
8 Other provisions
See Schedule C, which is part of the forgoing
9 Incorporators
Name
Address with zip code (if a corporation, indicate head office and
incorporation jurisdiction)
Signature of each incorporator (if a corporation, signature of the
authorized person)
Fondateurs Inteltex Inc.
Inteltex Incorporators Inc.
651, rue Notre-Dame ouest
3e etage
Montreal (Quebec)
H3C 1J1
(s) James Smith
President
If the space provided is not sufficient, include an appendix, in two copies
Space reserved
Government of Quebec
Filed on June 26, 1995
Inspector General of Financial Institutions
SCHEDULE A
RELATING TO
SHARE CAPITAL
The unlimited share capital of the company contains seven (7) classes of shares,
without per value, with the following rights, privileges, restrictions and
conditions:
A) CLASS A SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class A shares, are as follows:
1) Dividends and participation: Subject to the rights and privileges
attached to other classes of shares, holders of class A shares shall
have the right, pari passu with holders of class B shares:
a) to participate in the property, profits and surplus assets of
the company, and for that purpose, to receive any dividend
declared by the company, and
b) to receive the remaining property of the company upon
dissolution.
2) Restriction: In addition to the provisions of section 123.70 of the
Companies Act, no dividend shall be paid on class A shares, nor can
such shares be acquired by the company, if payment of such dividend
or purchase price would result in the realizable value of the net
assets of the company being insufficient to redeem class D and E
shares.
3) Right to vote: Holders of class A shares have the right to vote at
any meeting of the shareholders of the company. Each class A share
confers one (1) vote, except at meetings at which only the holders
of some other class of shares are entitled to vote.
4) Right to Exchange: Subject to the approval of the directors and
shareholders holding the majority of class D shares in circulation,
the shareholders of the class A have the right to request, for the
entirety or part of their shares and upon request, a class D share
in exchange for any class A share, subject to the followings
conditions: the conversion rate will be one class D share for every
class A share exchanged, the new class D shares will have an
identical value as that of the amount added to the stated capital
account for class A shares exchanged.
B) CLASS B SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class B shares, are as follow:
1) Dividends and participation: Subject to the rights and privileges
attached to other classes of shares, holders of class B shares shall
have the right, pari passu with holders of class A shares:
a) to participate in the property, profits and surplus assets of
the company, and for that purpose, to receive any dividend
declared by the company, and
b) to receive the remaining property of the company upon
dissolution.
2) Restriction: In addition to the provisions of section 123.70 of the
Companies Act, no dividend shall be paid on class B shares nor can
such shares be acquired by the company if payment of such dividend
or purchase price would result in the realizable value of the net
assets of the company being insufficient to redeem class D and E
shares.
3) Right to vote: Holders of class B shares shall have the right to
vote at any meeting of the shareholders of the company. Each class B
shares confers one (1) vote, except at meetings at which only the
holders of some other class of shares are entitled to vote.
C) CLASS C SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class C shares, are as follows:
1) Dividends and participation: Holders of class C shares shall not
participate in the profits and surplus assets of the company and,
for that purpose, shall not have a right to any dividend declared by
the company.
2) Reimbursement: In the event the property of the company should be
distributed following its dissolution, voluntary or forced
liquidation or otherwise, holders of class C shares shall have the
right, prior to the holders of all other classes of shares, to be
reimbursed the amount added to the stated capital account for class
C shares.
3) Right to vote: Holders of class C shares shall have the right to
vote at any meeting of the shareholders of the company. Each class C
shares confers one (1) vote, except at meetings at which only the
holders of some other class of shares are entitled to vote.
4) Automatic redemption: Subject to the provisions of subsection 123.54
of the Companies Act, the company shall redeem all class C shares
owned by a class C shareholder and held immediately prior to his
death, at the value which they were worth immediately prior to his
death, namely the amount added to the stated capital account for
these shares, plus the amount of any declared unpaid dividends on
the shares, on reception of the certificates that represent the
repurchased shares.
On the date of purchase, the purchased class C shares shall
automatically be cancelled, and the company shall reduce its stated
capital account for class C shares according to the provisions of
section 123.51 of the Companies Act.
5) Right to redeem: Subject to the provisions of article 123.56 of the
Companies Act, the company may, at any time, without notice and
without regard to other classes of shares, purchase all or part of
the outstanding class C shares at will and at the best possible
price.
On the date of purchase, the purchased class C shares shall
automatically be cancelled, and the company shall reduce its stated
capital account for class C shares according to the provisions of
section 123.51 of the Companies Act.
6) Power of Veto: No conversion of class C shares, and no creation of
other class of shares on the same level or previous class C shares
will be authorized, nor any amendment to the foregoing provisions
relevant to the class C shares, nor any amendments to any other
class of shares, in a manner to give these shares equal or superior
privileges to those attached to the class C shares, unless this
creation, conversion or modification has been approved by a vote of
at least 3/4 of class C shares represented by their holders along
with other formalities foreseen by the Companies Act.
D) CLASS D SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class D shares, are as follows:
1) Dividends: When the company declares a dividend, the shareholders of
the class D shares have the right to receive, up to an equal amount
of the declared dividend, in priority to holders of class A, B, E, F
and G, from applicable funds available for payment of dividend, a
preferential and non-cumulative dividend of one percent (1%) per
month, calculated on the "re-purchase value" of class D shares, as
indicated on paragraph 5 hereafter. The company cannot declare this
dividend for more than one month at a time, it is up to the
directors to determine the date, hour and method of payment of this
dividend.
2) Reimbursement: In the event the property of the company should be
distributed following its dissolution, voluntary or forced
liquidation or otherwise, holders of class D shares shall have the
right, prior to holders of class A, B, E, F and G shares, but after
holders of class C shares, to be reimbursed the redemption value of
class D shares as defined in section 5) hereunder, plus the amount
of any declared unpaid dividends on class D shares.
3) Additional participation: Holders of class D shares shall not
otherwise participate in the profits or surplus assets of the
company.
4) Right to vote: Subject to the provisions of the Companies Act,
holders of class D shares shall not be entitled, as class D
shareholders only, to vote at any meeting of shareholders of the
company, nor to attend same and to receive a notice thereof.
5) Right to redeem: Subject to the provisions of subsection 123.54 of
the Companies Act, holders of class D shares shall have the right,
at any time and upon written notice, to request their shares to be
redeemed by the company at a price equal to the amount added to the
stated capital account for these shares, plus a premium equal to the
difference between the amount added to the stated capital account
for these shares, and the fair market value of the class A shares
exchanged for these class D shares, at the moment of the exchange.
Such a price of redemption shall be considered as the redemption
value of class D shares and the company shall, in addition, remit to
the holders of class D shares so redeemed, the amount of the
declared unpaid dividends on these shares, as the case may be. The
company and class D holders shall base their calculation of the
aforementioned premium on the fair market value of class A shares at
the moment of their exchange for class D shares.
In the event the federal and/or provincial Revenue Departments
should attribute to class A shares exchanged a fair market value
different from that determined by the aforementioned persons, the
departmental evaluations shall be conclusive and the amount of the
premium shall be reduced or increased consequently, provided that
the corporation and holders of class D shares had an opportunity to
contest the validity of such departmental evaluations with the
departments or before the Courts, and provided that should there be
a discrepancy between the provincial and federal evaluations, the
above adjustments shall be based on the lowest evaluation determined
following an unquestioned assessments or a final Court decision, as
the case may be.
On the date of redemption, the class D shares redeemed, as requested
by shareholder, shall be cancelled, and the company shall reduce its
stated capital account for class D shares according to the
provisions of section 123.51 of the Companies Act.
6) Right to purchase: Subject to the provisions of article 123.56 of
the Companies Act, the company may, at any time, without notice and
without regard to other classes of shares, purchase all or part of
the outstanding class D shares at a price agreed to by the company
and the holder of the class D shares being purchased, which in no
way shall exceed the aforementioned redemption price nor the
realizable value of the net assets of the company.
On the date of redemption, the class D shares redeemed shall be
cancelled, and the company shall reduce its stated capital account
for class D shares according to the provisions of section 123.51 of
the Companies Act.
7) Power of Veto: No conversion of class D shares, and no creation of
other class of shares on the same level or previous class D shares
will be authorized, nor any amendment to the foregoing provisions
relevant to the class D shares, nor any amendments to any other
class of shares, in a manner to give these shares equal or superior
privileges to those attached to the class D shares, unless this
creation, conversion or modification has been approved by a vote of
at least -3/4 of class D shares represented by their holders along
with other formalities foreseen by the Companies Act.
E) CLASS E SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class E shares are as follows:
1) Dividends: When the company declares a dividend, the shareholders of
the class D shares have the right to receive, up to an equal amount
of the declared dividend, in priority to holders of class A, B, F
and G, but subsequent to the shareholders of class D, from
applicable funds available for payment of dividend, a preferential
and non-cumulative dividend of one percent (1%) per month,
calculated on the "re-purchase
value" of class E shares, as indicated on paragraph 5. The company
cannot declare this dividend for more than one month at a time, it
is up to the directors to determine the date, hour and method of
payment.
2) Reimbursement: In the event the property of the company should be
distributed following its dissolution, voluntary or forced
liquidation or otherwise, holders of class E shares shall have the
right, prior to holders of class A, B, F and G shares, but after
holders of class C and D shares, to be reimbursed the redemption
value of class E shares as defined in subsection 5) hereunder, plus
the amount of any declared unpaid dividends on class E shares.
3) Additional participation: Holders of class E shares shall not
otherwise participate in the profits or surplus assets of the
company.
4) Right to vote: Subject to the provisions of the Companies Act,
holders of class E shares shall not be entitled, as class E
shareholders only, to vote at any meeting of shareholders of the
company, nor to attend same and to receive a notice thereof.
5) Right to redeem: Subject to the provisions of subsection 123.54 of
the Companies Act, the company may, at its discretion, redeem class
E shares unilaterally, at any time upon written notice to their
holders, and class E shares shall be redeemed by the company at any
time upon written demand from the holders of class E shares, at a
price equal to the amount added to the stated capital account for
these shares, plus a premium equal to the difference between the
fair market value of the consideration received by the company at
the time of issuance for issuing these class E shares, and the total
comprising:
a) the amount added to the stated capital account for these
shares.
b) the fair market value of any property, other than class E
shares, given in payment by the company for that
consideration.
Such a price of redemption shall be considered as the redemption
value of class E shares and the company shall, in addition, remit to
the holders of class E shares so redeemed, the amount of the
declared unpaid dividends on these shares, as the case may be. The
fair market value of the aforementioned consideration shall be as
determined by the company and the subscribers to class E shares upon
issuance of class E shares. In the event the federal and/or
provincial Revenue Departments should attribute to this
consideration a fair market value different from that determined by
the aforementioned persons, the departmental evaluations shall be
conclusive and the amount of the premium shall be reduced or
increased consequently, provided that the company and holders of
class E shares had an opportunity to contest the validity of such
departmental evaluations with the departments or before the Courts,
and provided that should there be a discrepancy between the
provincial and federal evaluations, the above adjustments shall be
based on the lowest evaluation determined following an unquestioned
assessments or a final Court decision, as the case may be.
The company shall proceed with the re-purchase of class E shares
without taking into account other classes of shares, and has a delay
of thirty (30) days following the re-purchase date, to re-mitt the
repurchase price to the former shareholder of the class E shares. If
the conditions of article 123.54 of the Companies Act do not allow
him to respect this delay, the company will re-mitt a first portion
of the re-purchase price within a delay of thirty (30) days, and
re-mitts the remaining unpaid balance as soon as legally possible.
On the date of redemption, the class E shares redeemed shall be
cancelled, and the company shall reduce its stated capital account
for class E shares according to the provisions of section 123.51 of
the Companies Act.
In addition, if in the event of a price adjustment, the company has
already redeemed all class E shares, the company shall pay to its
shareholders, as soon as it can legally do so, an additional sum, if
the premium is increased, or the holders of the redeemed shares will
repay any sum due in the event that the adjustment decreases the
premium, with all interest at the highest rate between the one
prescribed by virtue of Article 28 of AN ACT RESPECTING THE
MINISTERE DU REVENU (R.S.Q., chapter M-31) or the one prescribed by
Article 4301 of the federal INCOME TAX REGULATIONS, as determined
for the relevant period, prorata to the class E shares held by each
shareholder. If only a part of the class E shares were redeemed, the
portion of the additional payment or repayment, as the case may be,
corresponding to the redeemed shares
will be made as soon as is legally possible, with interest at the
rate hereinabove mentioned, and with regard to the shares still to
be redeemed, the value of these shares will modify, either more or
less, as the case may be, the amount of the premium for these
shares.
6) Right to purchase: Subject to the provisions of section 123.56 of
the Companies Act, the company may, at any time, without notice and
without regard to other classes of shares, purchase all or part of
the outstanding class E shares at a price agreed to by the company
and the holder of the class E shares being purchased, which in no
way shall exceed the aforementioned redemption price nor the
realizable value of the net assets of the company.
On the date of purchase, the purchased class E shares shall
automatically be cancelled, and the company shall reduce, in
accordance with article 123.51 of the Companies Act, its stated
capital account for class E shares paid and emitted.
7) Power of Veto: No conversion of class E shares, and no creation of
other class shares on the same level or previous class E shares will
be authorized, nor any amendment to the foregoing provisions
relevant to the class E shares, nor any amendments to any other
class of shares, in a manner to give these shares equal or superior
privileges to those attached to the class E shares, unless this
creation, conversion or modification has been approved by a vote of
at least -3/4 of class E shares represented by their holders along
with other formalities foreseen by the Companies Act.
F) CLASS F SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class F shares, are as follows:
1) Dividends: When the company declares a dividend, the shareholders of
the class F shares have the right to receive, up to an equal amount
of the declared dividend, in priority of class A, B and G, but
subsequent to the shareholders of class D and E, from applicable
funds for the payment of dividends, an annual, preferential and
non-cumulative dividend of a dollar (1$) per share; it is up to the
directors to determine the moment and method of payment.
2) Reimbursement: In the event the property of the company should be
distributed following its dissolution, voluntary or forced
liquidation or otherwise, holders of class F shares shall have the
right, prior to holders of class A, B and G shares, but subsequent
to holders of class C, D and E shares, to be reimbursed the amount
added to the stated capital account for class F shares and to be
paid the amount of any declared unpaid dividends on class F shares.
3) Additional participation: Holders of class F shares shall not
otherwise participate in the profits or surplus assets of the
company.
4) Right to vote: Subject to the provisions of the Companies Act,
holders of class F shares shall not be entitled, as class F
shareholders of the company, nor to attend same and to receive a
notice thereof.
5) Unilateral right to redeem: Subject to the provisions of subsection
123.53 of the Companies Act, the company may, at its discretion,
redeem class F shares unilaterally by giving a thirty (30) day
written notice and paying a price equal to the amount added to the
stated capital account for these shares, plus the amount of any
declared unpaid dividends on these shares. In the event of partial
redemption, such redemption shall be proportionate to the number of
outstanding class F shares, excluding fractions of shares.
On the date of purchase, the purchased class F shares shall
automatically be cancelled, and the company shall reduce, in
accordance with article 123.51 of the Companies Act, its stated
capital account for class F accordingly.
6) Right to purchase: Subject to the provisions of subsection 123.56 of
the Companies Act, the company may, at any time, without notice and
without regard to other classes of shares, purchase all or part of
the outstanding class F shares at a price agreed to by the company
and the holders of the class F shares being purchased.
On the date of purchase, the purchased class F shares shall
automatically be cancelled, and the company
shall reduce, in accordance with article 123.51 of the Companies
Act, its stated capital account for class F accordingly.
7) Power of Veto: No conversion of class F shares, and no creation of
other class shares on the same level or previous class F shares will
be authorized, nor any amendment to the foregoing provisions
relevant to the class F shares, nor any amendments to any other
class of shares, in a manner to give these shares equal or superior
privileges to those attached to the class F shares, unless this
creation, conversion or modification has been approved by a vote of
at least 3/4 of class F shares represented by their holders along
with other formalities foreseen by the Companies Act.
G) CLASS G SHARES: The rights, privileges, restrictions and conditions
attached to an unlimited number of class G shares, are as follows:
1) Dividends: When the company declares a dividend, the shareholders of
the class G shares have the right to receive, up to an equal amount
of the declared dividend, in priority of class A and B, but
subsequent to the shareholders of class D, E and F, from applicable
funds for payment of dividends, an annual, preferential and
non-cumulative dividend of a dollar (1$) per share, it is up to the
directors to determine the moment and method of payment of such
dividend.
2) Reimbursement: In the event the property of the company should be
distributed following its dissolution, voluntary or forced
liquidation or otherwise, holders of class G shares shall have the
right, prior to holders of class A and B shares, but subsequent to
shareholders of classes C, D, E and F, to be reimbursed at a price
equal to the amount added to the stated capital account for these
shares, to which the amount of any unpaid declared dividend for
these shares will be added.
3) Additional participation: Holders of class G shares shall not
otherwise participate in the profits or surplus assets of the
company.
4) Right to vote: Subject to the provisions of the Companies Act,
holders of class G shares shall not be entitled, as class G
shareholders of the company, nor to attend same and to receive a
notice thereof.
5) Unilateral right to redeem: Subject to the provisions of subsection
123.53 of the Companies Act, the company may, at its discretion,
redeem class G shares unilaterally by giving a thirty (30) day
written notice and paying a price equal to the amount added to the
stated capital account for these shares, plus the amount of any
declared unpaid dividends on these shares. In the event of partial
redemption, such redemption shall be proportionate to the number of
outstanding class G shares, excluding fractions of shares.
On the date of purchase, the purchased class G shares shall
automatically be cancelled, and the company shall reduce its stated
capital account for class G shares according to the provisions of
section 123.51 of the Companies Act
6) Right to purchase: Subject to the provisions of article 123.56 of
the Companies Act, the company may, at any time, without notice and
without regard to other classes of shares, purchase all or part of
the outstanding shares at will and at the best possible price, in
total or in part all class G shares in circulation.
On the date of purchase, the purchased class G shares shall
automatically be cancelled, and the company shall reduce its stated
capital account for class G shares according to the provisions of
section 123.51 of the Companies Act
7) Power of Veto: No conversion of class G shares, and no creation of
other class shares on the same level or previous class G shares will
be authorized, nor any amendment to the foregoing provisions
relevant to the class G shares, nor any amendments to any other
class of shares, in a manner to give these shares equal or superior
privileges to those attached to the class G shares, unless this
creation, conversion or modification has been approved by a vote of
at least 3/4 of class G shares represented by their holders along
with other formalities foreseen by the Companies Act.
SCHEDULE B
RELATING TO
RESTRICTIONS ON THE TRANSFER OF SHARES
No share issued by the company shall be transferred without the consent of the
directors, which shall be confirmed by a resolution of the Board of directors.
Such consent may be given after the transfer has been registered in the books of
the company, in which case the transfer will be valid and will take effect
retroactively upon the date that the transfer was recorded.
SCHEDULE C
RELATING TO
OTHER PROVISIONS
1. CLOSED COMPANY :
The company will be a<<closed company>>according to the Securities Act
(R.S.Q., c. V-1.1, art. 5), and, to this end :
a) The number of shareholders of the company is limited to fifty (50)
exclusive of present or former employees of the company or of a
subsidiary; two or more persons who hold jointly one or more shares
are counted as one shareholder.
b) Any distribution of securities by the company to the public is
prohibited.
2. BORROWING POWER:
In addition to powers given by its articles and without restricting the
powers given to the directors pursuant to section 77 of the Companies Act
(R.S.Q., c. V-1.1, art 5), directors can, when they deem appropriate and
without having to obtain consent from the shareholders:
a) borrow money upon the credit of the company;
b) issue or re-issue obligations or other securities of the company,
and pledge or sell the same for such sums and at such price as may
be deemed expedient;
c) guarantee in the name of the company the execution of an obligation
by a third party, subject to the established fact of the present or
future capacity of the company to discharge its liabilities when due
and that the realizable value of the net assets of the company will
be sufficient to perform such guarantee;
d) hypothecate the moveable or immoveable property of the company or
otherwise affect any kind of charge against the moveable property of
the company, and
e) Delegate one or several of the aforementioned powers to a director,
to an executive committee, to board committee or to an officer of
the company.
(QUEBEC LOGO) Government of Quebec
INSPECTOR GENERAL
OF FINANCIAL INSTITUTIONS
Form 5
ARTICLES OF AMENDMENT
Companies Act, R.S.Q., c. C-38,
Part 1A
1 Name
9022-3751 QUEBEC INC.
2 [ ] Amendment of articles under sections 123.140 and following of the
Companies Act.
3 The articles of the company are amended as follows:
The presently authorized share capital of the company is hereby cancelled and
repealed, and replaced with Schedule A attached hereto and forming an
integral part hereof.
The restrictions on share transfers of the company are hereby cancelled and
repealed, and replaced with Schedule B attached hereto and forming an
integral part hereof.
The other provisions of the company are hereby cancelled and repealed, and
replaced with Schedule C attached hereto and forming an integral part
thereof.
4 Effective date, if later than that on which the articles of amendment are
filed (see instructions)
5 Name (or Quebec enterprise number) prior to the amendment (if different than
the one mentioned in section 1)
If the space provided is not sufficient, include an appendix, in two copies.
Signature of
Authorized Director_____________________________________________________________
________________________________________________________________________________
Official use only
SCHEDULE A
SHARE CAPITAL OF
9022-3751 QUEBEC INC.
Subject to the provisions of the Quebec Companies Act (R.S.Q., c.
C-38) (hereinafter referred to as the "Act"), the authorized share
capital of the Company and the shares that constitute such
authorized share capital shall be as set forth below.
SECTION 1. AUTHORIZED SHARE CAPITAL
The Company is authorized to issue SEVEN (7) classes of shares,
being Class A common shares and Class B, C, D, E, F or G preferred
shares.
The shares of all such classes are without nominal or par value and
may be issued in unlimited numbers and for unlimited consideration,
which shall be paid into a subdivision of the issued and paid-up
share capital account in respect of such shares.
SECTION 2. RIGHTS ATTACHING TO THE SHARES
The rights, privileges, conditions and restrictions attaching to the
shares constituting the authorized share capital of the Company
shall be as set forth below.
A. VOTING RIGHTS
CLASS A COMMON SHARES: Each Class A share shall entitle the holder
thereof to receive notice of, to attend and to vote at every meeting
of shareholders of the Company, and each Class A share shall entitle
the holder thereof to one (1) vote.
CLASS B, C, D, E OR G PREFERRED SHARES: Subject to the provisions of
the Act, no Class B, C, D, E or G share shall entitle the holder
thereof, as such, to receive notice of, nor to attend or vote at
meetings of shareholders.
CLASS F PREFERRED SHARES: Each Class F share shall entitle the
holder thereof to receive notice of, to attend and to vote at every
meeting of shareholders of the Company, and each Class F share shall
entitle the holder thereof to ten (10) votes.
B. DIVIDENDS
Subject to the restrictions under s. 123.70 of the Act, each Class
A, B, C, D, E or G share shall entitle the holder thereof to share
in the assets, profits and surplus of the Company and, for this
purpose, to receive any dividend declared by the Company as provided
below. The Board of Directors may, at its sole discretion, determine
the amount, time and terms of payment of any dividend so declared.
CLASS A COMMON SHARES: Subject to the rights and privileges
attaching to the other classes of shares, each Class A share shall
confer upon the holder thereof the residual right to share in the
assets, profits and surplus of the Company, pro rata to the number
of shares held by such holder and, for this purpose, to receive any
dividend declared by the Company.
CLASS B, C, D OR E PREFERRED SHARES: Each Class B, C, D or E share
shall confer upon the holder thereof the preferred right to receive
respectively, up to the amount of the dividend so declared, paid out
of the funds available for the payment thereof, a maximum monthly
dividend of between a quarter of one percent (1/4%) and one and one
half of one percent (1-1/2 %) based on the redemption value, as
defined below under D - ACQUISITION OF SHARES,of the Class B, C, D
or E shares, according to the applicable class of shares. Such
dividend is non-cumulative.
CLASS F PREFERRED SHARES: Class F shares do not entitle the holder
thereof to share in the assets, profits and surplus of the Company
or to receive any dividend declared by the Company.
CLASS G PREFERRED SHARES: Each Class G share shall confer upon the
holder thereof the preferred right to receive, up to the amount of
the dividend so declared, paid out of the funds available for the
payment thereof, an annual maximum dividend equal to two thirds
(2/3) of the Bank of Canada rate on the date on which such dividend
is declared, based on the amount paid for such shares into the
subdivision of the issued and paid-up share capital account in
respect of Class G shares. Such dividend is non cumulative.
RANKING ORDER: The ranking order for the payment of dividends on the
different classes of shares shall be as follows: the Class G shares
shall rank first; the Class B shares shall rank second; the Class C
shares shall rank third; the Class D shares shall rank fourth; the
Class E shares shall rank fifth, and the Class A shares shall rank
sixth.
NO ADDITIONAL PARTICIPATION: The Class B, C, D, E or G shares shall
not entitle the holders thereof to share in the assets, profits or
surplus of the Company otherwise than as provided above.
C. REMAINING PROPERTY
If, for any reason, and more particularly in the event of the
liquidation, dissolution or winding-up of the Company, whether
voluntary or involuntary, there is a partial or total distribution
of the assets of the Company to the shareholders, the redemption of
shares and participation in the remaining property of the Company
shall be as provided below.
CLASS A COMMON SHARES: Each Class A share shall confer upon the
holder thereof the residual right to share in the remaining property
of the Company, pro rata to the number of shares held by such
holder.
CLASS B, C, D OR E PREFERRED SHARES: Each Class B, C, D or E share
shall confer upon the holder thereof the preferred right to share in
the remaining property of the Company, at a price equal to the
payment of the redemption value, as defined below under D -
ACQUISITION OF SHARES, of such shares, according to the applicable
class of shares, to which shall be added the amount of any declared
and unpaid dividends, if any, on such Class B, C, D or E shares, as
the case may be.
CLASS G PREFERRED SHARES: Each Class G share shall confer upon the
holder thereof the preferred right to share in the remaining
property of the Company, at a price equal to the amount paid for
such shares into the subdivision of the issued and paid-up share
capital account in respect of such Class G shares, to which shall be
added the amount of any declared and unpaid dividends, if any, on
the the Class G shares.
INSUFFICIENT ASSETS: If at any particular time, based on the ranking
order set forth below, the assets of the Company are not sufficient
to pay in full the amount to which the Class A, B, C, D, E or G
shareholders are entitled to pursuant to the terms and conditions
above, the
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shareholders of the relevant class shall share in the balance of the
assets pro rata to the number of shares of the relevant class held
by them.
RANKING ORDER: The ranking order for the different classes of shares
as regards participation in the remaining property of the Company
shall be as follows: the Class G shares shall rank first; the Class
B or C or D or E shares shall rank second, pari passu; the Class A
shares shall rank third.
NO ADDITIONAL PARTICIPATION: The Class A, B, C, D, E or G shares do
not entitle the holders thereof to share in the remaining property
of the Company otherwise than as provided above.
D ACQUISITION OF SHARES
Subject to the provisions of the Act, the Company shall acquire all
or part of the Class B, C, D or E shares then issued and outstanding
pursuant to the terms and conditions set forth below.
1. SHAREHOLDER'S RIGHT OF REDEMPTION
CLASS B, C, D OR E PREFERRED SHARES: Subject to the provisions of
the second paragraph of s. 123.54 of the Act, any Class B, C, D or E
shareholder has the right, to be exercised at any time at his sole
discretion and as set forth below by written notice, to require the
Company to redeem all or part of his shares, at a price equal to the
"redemption value" thereof, according to the applicable class of
shares, to which shall be added the amount of any declared and
unpaid dividends, if any, on the Class B, C, D or E shares, as the
case may be.
REDEMPTION VALUE
The "redemption value" of Class B, C, D, or E shares shall be equal
to the amount paid for such shares into the subdivision of the
issued and paid-up share capital account in respect of such shares,
according to the applicable class of shares, plus a premium equal to
the amount by which the fair market value of the consideration paid
to the Company upon the issuance of such Class B, C, D, or E shares,
as the case may be, exceeds the aggregate of:
(i) the amount paid for such shares into the subdivision of the
issued and paid-up share capital account in respect of the
Class B, C, D or E shares, according to the applicable class
of shares; and
(ii) the fair market value of any property other than a Class B, C,
D or E share, as the case may be, given by the Company in
payment of such consideration.
DETERMINING FAIR MARKET VALUE OF CONSIDERATION
Upon the issuance of the Class B, C, D or E shares, the Company and
each subscriber of Class B, C, D or E shares, as the case may be,
shall, by mutual agreement acting in good faith, based on a method
deemed to be fair and reasonable, determine the fair market value of
each of the assets constituting the consideration paid to the
Company upon the issuance of such Class B, C, D or E shares, as the
case may be.
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ADJUSTMENT OF THE PREMIUM IN THE EVENT OF MINISTERIAL CONTESTATION
In the event of a disagreement with the Quebec Minister of Revenue
and/or the Minister of National Revenue with respect to the
valuation of the fair market value of one or more assets
constituting the consideration paid to the Company upon the issuance
of the Class B, C, D or E shares, the ministerial valuation shall
prevail, and the amount of the premium relating to the redemption of
the Class B, C, D or E shares shall be adjusted accordingly if the
Minister provides the Company and each Class B, C, D or E
shareholder or, if all the shares are being redeemed, the Company
and each former Class B, C, D or E shareholder, the opportunity to
contest the ministerial valuation either to the Minister or before
the courts. In the event of a discrepancy between the provincial and
federal valuation, the lesser of the two valuations determined
according to an uncontested assessment or final judgement, if
applicable, shall obtain.
2. PROCEDURE FOR THE RETRACTION OF SHARES
PROCEDURE
If a holder of Class B, C, D or E shares, as the case may be, wishes
to exercise his redemption right, such shareholder shall deliver a
written notice at the registered office of the Company or at the
office of his transfer agent, indicating the number of shares of the
relevant class to be redeemed by the Company and the date on which
the shareholder wishes such redemption to take place, . The written
notice shall be accompanied by the certificate or certificates
representing the shares of the relevant class to be redeemed and
shall be signed by the person registered as the holder thereof in
the share register of the Company or signed by his agent duly
authorized for such purpose. Upon receipt of the notice and the
certificate or certificates representing the shares of the relevant
class to be redemmed, the Company shall redeem the shares of the
relevant class, without taking into consideration any other class of
shares, and shall have a period of thirty (30) days from the
redemption date to pay the redemption value of such shares to the
Class B, C, D or E shareholder or, if all the shares are redeemed,
to the former Class B, C, D or E shareholder.
DELAYED PAYMENT
If the provisions of the second paragraph of s. 123.54 of the Act do
not allow the Company to pay the full redemption value to a
shareholder or former shareholder in the aforementioned period, the
Company shall pay a first portion of the redemption value within the
thirty (30) day period, if legally authorized to do so, and shall
pay the unpaid balance as soon as is legally possible.
PARTIAL PURCHASE
If only part of the shares then issued and outstanding of the Class
B, C, D or E shareholder are to be redeemed, the Company shall,
without cost to the relevant shareholder, issue to such shareholder
a new share certificate representing those shares of such
shareholder that have not been purchased.
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3. CANCELLATION
The Class B, C, D or E shares so purchased pursuant to any of the
terms and conditions of this Section D shall automatically be
cancelled upon the acquisition thereof, and the subdivision of the
issued and paid-up share capital account in respect of such Class B,
C, D or E shares shall be reduced accordingly by the Company, all of
which pursuant to the provisions of the Act.
E. RESTRICTIONS
In addition to the restrictions under ss. 123.70 and 126.53 of the
Act, the Company may not pay any dividend on Class A Shares nor
purchase by private agreement or otherwise acquire such shares if,
as a result thereof, the Company could not legally redeem or pay the
redemption price of the Class B, C, D or E shares.
F. VETO
CLASS, B, C, D OR E PREFERRED SHARES: No conversion of all or part
of the Class B, C, D, or E shares into shares of another class,
whether existing or not, and no creation of new classes of shares
ranking pari passu with or prior to the shares of the relevant class
shall be authorized, and no amendment shall be made to the
provisions above relating to the shares of the relevant class or the
provisions relating to shares of other existing classes if the
result of such an amendment is to confer upon the shares of such
other classes rights or privileges that are equal or superior to the
rights and privileges attaching to Class B, C, D or E shares, as the
case may be, unless such conversion, creation or amendment has been
approved by the affirmative vote of not less than three quarters
(3/4) of the Class B, C, D or E shares, as the case may be, as well
as by the separate vote of three-quarters (3/4) of each class of
shares whose rights could be adversely affected by such conversion,
creation or amendment, as represented by the holders thereof in
person or represented by proxy at a special or general meeting
convened for this purpose, in addition to the other formalities
required by the Act.
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SCHEDULE B
RESTRICTIONS ON THE TRANSFER OF SHARES OF
9022-3751 QUEBEC INC.
CONSENT OF THE DIRECTORS OR SHAREHOLDERS
No assignment or transfer of shares of the Company may be made
without the consent:
(a) of a majority of the directors, whose consent shall be
attested by a resolution of the Board of Directors or by
one (1) or more instruments signed by a majority of the
directors;
(b) or a majority of the shareholders entitled to vote,
whose consent shall be attested by a resolution of such
shareholders or by one (1) or more instruments signed by
a majority of such shareholders.
Consent may be given after the assignment or transfer has been
registered in the share register of the Company, in which case the
assignment or transfer shall be valid and take effect retroactively
to the date of the registration thereof.
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SCHEDULE C
OTHER PROVISIONS OF
9022-3751 QUEBEC INC.
1. CLOSED COMPANY
The Company is a "closed company" within the meaning of s. 5 of the Quebec
Securities Act (R.S.Q., c. V-1.1), and, as a result:
(a) the number of shareholders of the Company is limited to fifty (50),
excluding present of former employees of the company or a subsidiary; and
two (2) or more persons who are joint holders of one (1) or more shares
shall be considered as one (1) shareholder; and
(b) any public distribution of shares of the Company is prohibited.
2. BORROWING POWER
In addition to the powers conferred by the articles of incorporation and
without limiting the generality of the powers vested in the directors
under s. 123.6 and s. 77 of the Act, the directors may, pursuant to s.
123.13 of the Quebec Companies Act, R.S..Q., c. C-38 (hereinafter referred
to as the "Act"), at their sole discretion and without the authorization
of the shareholders:
(a) borrow money upon the credit of the Company;
(b) issue debentures or other securities of the Company, and pledge or
sell the same for such sums and at such prices as may be deemed
expedient;
(c) hypothecate the movable or immovable property or otherwise encumber
the movable property of the Company;
(d) delegate one (1) or more of the aforementioned powers to a director,
an executive committee, a committee of the Board of Directors or an
officer of the Company.
3. PARTICIPATING IN MEETINGS BY TECHNICAL MEANS
One (1) or more or all of the shareholders may participate in a meeting of
shareholders by technical means, including by telephone, enabling them to
communicate with the other shareholders or persons taking part in the
meeting. In this case, such shareholders are deemed to be present at the
meeting and such meeting is deemed to be held in the Province of Quebec.
The shareholders present at a meeting held by technical means may discuss
any question that may be raised at a meeting of shareholders. A
shareholder who takes part in a meeting of shareholders through technical
means may not be represented by a proxyholder.
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4. MEETINGS OF SHAREHOLDERS OUTSIDE QUEBEC
Meetings of shareholders of the Company, including annual general meetings
and special meetings, may be held outside the Province of Quebec and the
shareholders of the Company may take part in and vote at any meeting of
shareholders held outside the Province of Quebec by any means enabling all
the participants to communicate with one another.
5. UNANIMOUS SHAREHOLDERS' AGREEMENT
When a power vested in the Board of Directors under the articles of
incorporation has been withdrawn from the directors to be exercised by the
shareholders under a unanimous shareholders' agreement pursuant to s.
123.91 of the Act, any reference in the articles to the exercise of such
power by the Board of Directors or by one (1) or more directors shall be
read to mean the exercise of such power by the meeting of shareholders
under the unanimous shareholders' agreement.
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SCHEDULE C (CONT'D)
CONVERSION OF SHARES
(a) All Class B shares of 9022-3751 QUEBEC INC. currently issued and
outstanding are hereby converted into an identical number of Class A
shares of the share capital resulting from this amendment, on a
share for share basis, for an issued and paid up share capital that
is identical to the Class B shares so converted.
(b) All Class E shares of 9022-3751 QUEBEC INC. currently issued and
outstanding are hereby converted into an identical number of Class G
shares of the share capital resulting from this amendment, on a
share for share basis, for an issued and paid up share capital that
is identical to the Class E shares so converted.
NEW CERTIFICATES
The holders of the shares issued by the Company before the amendment
shall, upon the tender of certificates representing such shares
(except for such shares as have been cancelled as stated above), be
entitled to receive new share certificates on the basis of the
aforementioned conversion.
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