SCHEDULE 1 PLAN OF ARRANGEMENT UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT
Exhibit
1
SCHEDULE
1
PLAN
OF ARRANGEMENT UNDER SECTION 192
OF
THE CANADA BUSINESS CORPORATIONS ACT
ARTICLE
1
INTERPRETATION
1.1 Definitions
In
this Plan of Arrangement:
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(a)
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“Arrangement”
means the arrangement pursuant to section 192 of the CBCA set forth
in
this Plan of Arrangement and any amendment thereto made in accordance
with
section 5.1;
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(b)
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“Arrangement
Agreement” means the arrangement agreement dated
September 11, 2007 among Biomira Canco, Biomira, Biomira US, Biomira
Sub-1 and Biomira Sub-2;
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(c)
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“Arrangement
Resolution” means the special resolution of the Biomira
Shareholders approving the Arrangement and the Arrangement Agreement
to be
voted on at the Biomira Meeting;
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(d)
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“Articles
of Arrangement” means the articles of arrangement in respect of
the Arrangement required under subsection 192(6) of the CBCA to be
sent to
the Director after the Final Order has been granted, giving effect
to the
Arrangement;
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(e)
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“Biomira”
means Biomira Inc., a corporation incorporated under the laws of
Canada;
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(f)
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“Biomira Amalco”
means the amalgamated corporation resulting from the Second Amalgamation
of Biomira Sub-2 and Biomira Xxxxx;
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(g)
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“Biomira Amalco
Common Shares” means the common shares in the share capital of
Biomira Amalco having the rights, privileges, restrictions and conditions
set forth in the articles of arrangement of
Biomira;
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(h)
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“Biomira Canco”
means 4442636 Canada Inc., a corporation incorporated under
the
laws of Canada;
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(i)
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“Biomira Canco
Common Shares” means the common shares in the share capital of
Biomira Canco having the characteristics set forth in Appendix “A”
hereto;
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(j)
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“Biomira Canco
Preferred Shares” means the non-voting redeemable Class A
preference shares in the share capital of Biomira Canco having the
characteristics set forth in Appendix “A”
hereto;
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(k)
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“Biomira
Common Shares” means the common shares in the share capital of
Biomira having the characteristics set forth in Appendix “A”
hereto;
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(l)
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“Biomira Edmonco”
means the amalgamated corporation resulting from the First
Amalgamation;
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(m)
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“Biomira Edmonco
Common Shares” means the common shares in the share capital of
Biomira Amalco having the rights, privileges, restrictions and conditions
set forth in the articles of arrangement of
Biomira;
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(n)
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“Biomira
Meeting” means the special meeting of holders of Biomira Shares
(including any adjournments or postponements thereof) that is to
be
convened to consider and, if deemed advisable, to approve the Arrangement
Resolution;
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(o)
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“Biomira
Options” means the outstanding options to purchase an aggregate
of 8,275,973 Biomira Common Shares issued pursuant to the Biomira
Share
Option Plan;
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(p)
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“Biomira
Preferred Shares” means the non-voting redeemable Class A
preference shares in the share capital of Biomira having the
characteristics set forth in Appendix “A”
hereto;
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(q)
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“Biomira
RSUs” means the outstanding restricted share units to purchase
an
aggregate of 516,620 Biomira Common Shares issued pursuant to the
Biomira
Restricted Share Unit Plan;
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(r)
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“Biomira
Restricted Share Unit Plan” means the restricted share unit plan
of Biomira;
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(s)
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“Biomira
Shareholder” means a registered holder of Biomira Shares from
time to time, and “Biomira Shareholders” means all of
such registered holders of Biomira
Shares;
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(t)
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“Biomira
Share Option Plan” means the share option plan of
Biomira;
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(u)
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“Biomira
Shares” means, collectively, Biomira Common Shares and Biomira
Preferred Shares;
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(v)
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“Biomira
Sub-1” means 4442644 Canada Inc., a wholly owned Subsidiary of
Biomira Canco incorporated under the laws of
Canada;
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(w)
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“Biomira
Sub-1 Shares” means the common shares in the share capital of
Biomira Sub-1, having the rights, privileges, restrictions and conditions
set forth in the articles of Biomira
Sub-1;
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(x)
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“Biomira
Sub-2” means 4442652 Canada Inc., a wholly owned Subsidiary of
Biomira US incorporated under the laws of
Canada;
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(y)
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“Biomira
Sub-2 Shares” means the common shares in the share capital of
Biomira Sub-2, having the rights, privileges, restrictions and conditions
set forth in the articles of Biomira
Sub-2;
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(z)
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“Biomira
US” means Biomira Corporation, a corporation incorporated under
the laws of the State of Delaware;
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(aa)
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“Biomira
US Shares” means, collectively, Common Shares and Preferred
Shares;
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(bb)
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“Biomira
Warrants” means the outstanding warrants to purchase an aggregate
of 5,848,157 Biomira Common Shares issued at a price range between
USD$1.86 and USD$3.45 per Biomira Common
Share;
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(cc)
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“Business
Day” means any day excepting a Saturday or Sunday or a day
recognized as a holiday in Edmonton, Alberta, or a day on which banks
in
Edmonton, Alberta are not open for
business;
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(dd)
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“CBCA”
means the Canada Business Corporations Act R.S.C. 1985,
c. C-44, as amended;
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(ee)
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“Certificate”
means the certificate or certificates or other confirmation of filing
to
be issued by the Director pursuant to subsection 192(7) of the CBCA
giving
effect to the Arrangement.
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(ff)
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“Common
Shares” means the common shares in the share capital of Biomira
US having the characteristics set forth in Appendix “B”
hereto;
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(gg)
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“Court”
means the Court of Queen’s Bench of
Alberta;
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(hh)
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“Depositary”
means Computershare Investor Services Inc., the registrar and transfer
agent for the Common Shares and the Biomira Common
Shares;
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(ii)
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“Director”
means the Director appointed under section 260 of the
CBCA;
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(jj)
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“Dissent
Rights” means the rights of a Biomira Shareholder to dissent in
respect of the Arrangement pursuant to Article 3
hereof;
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(kk)
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“Dissenting
Shareholder” means those Biomira Shareholders who have fully
and properly exercised their Dissent Rights pursuant to Article
3 hereof and have not withdrawn their
dissent;
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(ll)
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“Effective
Date” means the date the Arrangement becomes effective under the
CBCA;
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(mm)
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“Final
Order” means the order of the Court approving the Arrangement
pursuant to subsection 192(4) of the CBCA, as such order may be affirmed,
amended or modified by any court of competent
jurisdiction;
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(nn)
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“First
Amalgamation” means the amalgamation between Biomira and Biomira
Sub-1 as set forth in section 2.2(a)
hereof;
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(oo)
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“Former
Biomira Shareholders” means the holders of Biomira Shares
immediately prior to the Effective
Date;
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(pp)
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“Interim
Order” means an interim order of the Court concerning the
Arrangement under subsection 192(4) of the CBCA, containing declarations
and directions with respect to the Arrangement and the holding of
the
Biomira Meeting, as such order may be affirmed, amended or modified
by any
court of competent jurisdiction;
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(qq)
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“Preferred
Shares” means the Class UA preference shares in the capital of
Biomira US having the characteristics set forth in Appendix “C”
hereto;
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(rr)
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“Replacement
Option” has the meaning ascribed thereto in subsection
2.2(v);
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(ss)
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“Replacement
RSU” has the meaning ascribed thereto in subsection
2.2(vi);
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(tt)
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“Replacement
Warrant” has the meaning ascribed thereto in subsection
2.2(vii);
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(uu)
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“Second
Amalgamation” means the amalgamation between Biomira Sub-2 and
Biomira Canco as set forth in section 2.2(d) hereof;
and
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(vv)
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“Subsidiary”
has the meaning ascribed thereto in the Securities Act
(Alberta);
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1.2 Headings
and References
The
division of this Plan of Arrangement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
in any way the construction or interpretation of this Plan of
Arrangement. Unless otherwise specified, references to Articles and
Sections are to Articles and Sections of this Plan of Arrangement.
1.3 Number
and Gender
In
this Plan of Arrangement, unless the contrary intention appears, words importing
the singular include the plural and vice versa; words importing gender shall
include all genders; and a reference to a person shall include a natural person,
firm, trust, partnership, association, corporation, joint venture or government
(including any governmental agency, political subdivision or instrumentality
thereof).
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1.4 Appendices
The
following Appendices are attached to this Plan of Arrangement and form part
hereof:
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Appendix
“A”
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Provisions
attached to the Biomira Common Shares and the Biomira Preferred Shares
which are identical to the Biomira Canco Common Shares and the Biomira
Canco Preferred Shares
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| Appendix “B” | Provisions attached to the Common Shares |
| Appendix “C” | Provisions attached to the Preferred Shares |
ARTICLE
2
THE
ARRANGEMENT
2.1 Arrangement
Agreement
This
Plan of Arrangement is made pursuant and subject to the provisions of the
Arrangement Agreement.
On
the Effective Date, the following shall occur and be deemed to occur in the
following chronological order without further act or formality:
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(a)
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Biomira
Sub-1 and Biomira shall amalgamate to form Biomira Edmonco and shall
continue as one corporation under the CBCA in the manner set out
in
section 181 of the CBCA;
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(b)
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all
of the shareholders who owned shares of Biomira immediately before
the
First Amalgamation, shall receive shares in the capital of Biomira
Canco
as set forth in section 2.2(c);
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(c)
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immediately
upon the First Amalgamation to form Biomira Edmonco as set forth
in
section 2.2(a):
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(i)
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each
six issued and outstanding Biomira Common Shares held by a Biomira
Shareholder (other than Biomira Common Shares held by a Dissenting
Shareholder) shall be exchanged for one Biomira Canco Common Shares,
having the effect of a 6 for 1 reverse split of the outstanding Biomira
Common Shares, whereupon such Biomira Common Shares shall be cancelled
by
Biomira (as continued in amalgamated
form);
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(ii)
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each
of the 12,500 issued and outstanding Biomira Preferred Share (other
than
Biomira Preferred Shares held by a Dissenting Shareholder) shall
be
exchanged for one Biomira Canco Preferred Share, whereupon such Biomira
Preferred Shares shall be cancelled by Xxxxxxx (as continued in
amalgamated form);
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(iii)
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each
issued and outstanding Biomira Sub-1 Share held by Biomira Canco
immediately prior to the Effective Date shall be converted into one
Biomira Edmonco Common Share;
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(iv)
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each
originally issued and outstanding share of Biomira Canco immediately
prior
to the Effective Date shall be cancelled by Biomira Canco;
and
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(v)
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immediately
upon the First Amalgamation, Biomira Xxxxxxx shall add to the stated
capital account maintained in respect of the Biomira Edmonco Common
Shares
an aggregate amount equal to the paid-up capital for purposes of
the
Income Tax Act (Canada) of all of the shares (except any shares
held by either of Biomira Sub-1 and Biomira in the other) of the
capital
of each of Biomira Sub-1 and Biomira immediately before the Effective
Date, which amount shall be allocated to the stated capital account
maintained for the Biomira Edmonco Common
Shares;
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(d)
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Biomira
Sub-2 and Biomira Canco shall amalgamate to form Biomira Amalco and
shall
continue as one corporation under the CBCA in the manner set out
in
section 181 of the CBCA;
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(e)
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all
of the shareholders who owned shares in the capital of Biomira Canco
immediately before the Second Amalgamation, shall receive shares
in the
capital of Biomira US as set forth in section
2.2(f);
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(f)
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immediately
upon the Second Amalgamation to form Biomira Amalco as set forth
in
section 2.2(d):
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(i)
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each
issued and outstanding Biomira Canco Common Share shall be exchanged
for
one Common Share, whereupon such Biomira Canco Common Shares shall
be
cancelled by Biomira Canco (as continued in amalgamated
form);
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(ii)
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each
issued and outstanding Biomira Canco Preferred Share shall be exchanged
for one Preferred Share, whereupon such Biomira Canco Preferred Share
shall be cancelled by Biomira Canco (as continued in amalgamated
form);
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(iii)
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each
issued and outstanding Biomira Sub-2 Share held by Biomira US immediately
prior to the Effective Date shall be converted into one Biomira Amalco
Common Share;
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(iv)
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each
originally issued and outstanding share of Biomira US immediately
prior to
the Effective Date shall be cancelled by Biomira US;
and
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(v)
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immediately
upon the Second Amalgamation, Biomira Amalco shall add to the stated
capital account maintained in respect of the Biomira Amalco Common
Shares
an aggregate amount equal to the paid-up capital for purposes of
the
Income Tax Act (Canada) of all of the shares (except any shares
held by either of Biomira Sub-2 and Biomira Canco in the other) of
the
capital stock of each of Biomira Sub-2 and Biomira Canco immediately
before the Effective Date, which amount shall be allocated to the
stated
capital account maintained for the Biomira Amalco Common
Shares;
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(g)
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each
Biomira Option shall be exchanged for an option of Biomira US (a
“Replacement Option”) to purchase that number of Common
Shares equal to the number of shares subject to such Biomira Option
divided by six. Such Replacement Option shall provide for an
exercise price per Common Share equal to the exercise price per share
of
such Biomira Option immediately prior to the Effective Date multiplied
by
six;
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(h)
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each
Biomira RSU shall be exchanged for a restricted share unit of Biomira
US
(a “Replacement RSU”) to purchase that number of Common
Shares equal to the number of shares subject to such Biomira RSU
divided
by six. Such Replacement RSU shall provide for an exercise
price per Common Share equal to the exercise price per share of such
Biomira RSU immediately prior to the Effective Date multiplied by
six;
and
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(i)
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each
Biomira Warrant shall be exchanged for a warrant of Biomira US (a
“Replacement Warrant”) to purchase that number of Common
Shares equal to the number of shares subject to such Biomira Warrant
divided by six. Such Replacement Warrant shall provide for an
exercise price per Common Share equal to the exercise price per share
of
such Biomira Warrant immediately prior to the Effective Date multiplied
by
six.
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2.3 Effect
of the First Amalgamation
The
effect of the First Amalgamation provided in section 2.2(a) shall be as
follows:
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(a)
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the
articles of Biomira Xxxxxxx shall be the same as the Biomira
articles;
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(b)
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the
by-laws of Biomira Xxxxxxx shall be the same as the Biomira
by-laws;
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(c)
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the
directors of Biomira Xxxxxxx shall be the same as the directors of
Biomira;
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(d)
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each
Biomira Common Share and Biomira Preferred Share shall be cancelled
without any repayment of capital in respect
thereof;
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(e)
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all
of the property and liabilities of each of Biomira Sub-1 and Biomira
immediately before the First Amalgamation shall become property and
liabilities of Biomira Edmonco by virtue of the First
Amalgamation;
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(f)
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Biomira
Xxxxxxx shall continue to be liable for the obligations of each of
Biomira
Sub-1 and Biomira;
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(g)
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any
existing cause of action, claim or liability to prosecution of either
Biomira Sub-1 or Biomira shall be
unaffected;
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(h)
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any
civil, criminal or administrative action or proceeding pending by
or
against Biomira Sub-1 or Biomira may be continued to be prosecuted
by or
against Biomira Xxxxxxx; and
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(i)
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any
convictions against or ruling, order or judgment in favour of or
against,
Biomira Sub-1 or Biomira may be enforced by or against Biomira
Xxxxxxx.
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2.4 Effect
of the Second Amalgamation
The
effect of the Second Amalgamation provided in section 2.2(d) shall be as
follows:
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(a)
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the
articles of Biomira Amalco shall be the same as the Biomira Canco
articles;
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(b)
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the
by-laws of Biomira Amalco shall be the same as the Biomira Canco
by-laws;
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(c)
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the
directors of Biomira Amalco shall be the same as the directors of
Xxxxxxx
Xxxxx;
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(d)
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each
Biomira Canco Common Share and Biomira Canco Preferred Share shall
be
cancelled without any repayment of capital in respect
thereof;
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(e)
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all
of the property and liabilities of each of Biomira Sub-2 and Biomira
Canco
immediately before the Second Amalgamation shall become property
and
liabilities of Biomira Amalco by virtue of the Second
Amalgamation;
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(f)
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Biomira
Amalco shall continue to be liable for the obligations of each of
Biomira
Sub-2 and Biomira Xxxxx;
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(g)
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any
existing cause of action, claim or liability to prosecution of either
Biomira Sub-2 and Biomira Xxxxx shall be
unaffected;
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(h)
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any
civil, criminal or administrative action or proceeding pending by
or
against Biomira Sub-2 and Biomira Canco may be continued to be prosecuted
by or against Biomira Amalco; and
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(i)
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any
convictions against or ruling, order or judgment in favour of or
against,
Biomira Sub-2 and Biomira Xxxxx may be enforced by or against Biomira
Amalco.
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2.5 Assumption
of Rights under Biomira Plans
As
of the Effective Date, Biomira US shall assume the obligations of Biomira under
each of the Biomira Share Option Plan, the Biomira Restricted Share Unit Plan
and the Biomira Warrants all on the terms contained therein, subject to any
amendments or modifications required to be made to such plans to give effect
to
the Arrangement as set forth in this Plan of Arrangement.
2.6 Post-Effective
Time Procedures
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(a)
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On
or promptly after the Effective Date, Biomira US shall deliver or
arrange
to be delivered to the Depositary certificates representing the Common
Shares required to be issued to Former Biomira Shareholders in accordance
with the provisions of Article 4
hereof.
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(b)
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Upon
receipt of a surrendered Biomira Preferred Share certificate by a
holder
thereof, Biomira US shall deliver or arrange to be delivered to such
Former Biomira Shareholder a certificate representing the Preferred
Shares
required to be issued to such Former Biomira Shareholder in accordance
with the provisions of Article 4
hereof.
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(c)
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Subject
to the provisions of Article 4 hereof, Former Biomira Shareholders
shall
be entitled to receive delivery of the certificates representing
the
Common Shares and Preferred Shares to which they are entitled pursuant
to
section 2.2 hereof.
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2.7 No
Fractional Shares
No
fractional Common Share shall be issued to Former Biomira Shareholders and
any
amount of fractional Common Shares otherwise issuable will be paid in
cash. The issue price for any fractional share of Common Shares shall
be paid in Canadian dollars and based on the ten day weighted average trading
price of the Biomira Common Shares listed on the Toronto Stock Exchange
immediately prior to the Effective Date of the Arrangement
ARTICLE
3
DISSENT
RIGHTS
3.1 Dissent
Rights
Biomira
Shareholders may exercise rights of dissent with respect to Biomira Common
Shares and Biomira Preferred Shares in connection with the Arrangement pursuant
to the Interim Order and in the manner set forth in section 190 of the CBCA,
provided that, notwithstanding the provisions of subsection 190(5) of the CBCA,
the written objection to the Arrangement Resolution to approve the Arrangement
contemplated by subsection 190(5) of the CBCA must be received by Biomira not
later than 5:00 p.m. (Edmonton time) on the Business Day immediately prior
to
the date of the Biomira Meeting and provided further that Biomira Shareholders
who exercise such rights of dissent and who:
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(a)
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are
ultimately entitled to be paid fair value for their Biomira Common
Shares
and Biomira Preferred Shares, which fair value, notwithstanding anything
to the contrary contained in section 190 of the CBCA, shall be determined
as of the Effective Date, shall be deemed to have transferred such
Biomira
Common Shares and Biomira Preferred Shares to Biomira for cancellation
at
the Effective Date or
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(b)
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are
ultimately not entitled, for any reason, to be paid fair value for
their
Biomira Common Shares and Biomira Preferred Shares shall be deemed
to have
participated in the Arrangement on the basis set forth in section
2.2
hereof;
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but
further provided that in no case shall Biomira Xxxxx, Biomira Sub-1, Biomira,
Biomira US or Biomira Sub-2 or any other person be required to recognize
Dissenting Shareholders as holders of Biomira Common Shares or Biomira Preferred
Shares after the Effective Date, and the names of such Dissenting Shareholders
shall be deleted from the register of holders of Biomira Common Shares and
Biomira Preferred Shares immediately prior to the Effective Date.
7
ARTICLE
4
DELIVERY
OF BIOMIRA US SHARES
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4.1
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Delivery
of Common Shares and Preferred
Shares
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(a)
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Upon
surrender to the Depositary for cancellation of a certificate which
immediately prior to the Effective Date represented one or more
outstanding Biomira Common Shares, together with such other documents
and
instruments as would have been required to effect the transfer of
the
Biomira Common Shares formerly represented by such certificate under
the
CBCA and the by-laws of Biomira and such additional documents and
instruments as the Depositary may reasonably require, the holder
of such
surrendered certificate shall be entitled to receive in exchange
therefor,
and the Depositary shall deliver to such holder following the Effective
Date, a certificate representing the Common Shares which such holder
is
entitled to receive in accordance with section 2.6
hereof.
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(b)
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Upon
surrender to Biomira US for cancellation of a certificate which
immediately prior to the Effective Date represented one or more
outstanding Biomira Preferred Shares the holder of such surrendered
certificate shall be entitled to receive in exchange therefor, and
Biomira
US shall deliver to such holder following the Effective Date, a
certificate representing the Preferred Shares which such holder is
entitled to receive in accordance with section 2.6
hereof.
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(c)
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After
the Effective Date and until surrendered for cancellation as contemplated
by subsections 4.1(a) and 4.1(b) hereof, each certificate which
immediately prior to the Effective Date represented one or more Biomira
Common Shares or Biomira Preferred Shares, as applicable, shall be
deemed
at all times to represent only the right to receive in exchange therefor
a
certificate representing the Common Shares or Preferred Shares, as
applicable, which the holder of such certificate is entitled to receive
in
accordance with subsections 4.1(a) and 4.1(b), as applicable,
hereof.
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4.2 Lost
Certificates
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(a)
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Biomira
Common Shares - In the event that any certificate which immediately
prior to the Effective Date represented one or more outstanding Biomira
Common Shares shall have been lost, stolen or destroyed, upon the
making
of an affidavit of that fact by the holder claiming such certificate
to be
lost, stolen or destroyed, the Depositary shall deliver in exchange
for
such lost, stolen or destroyed certificate, a certificate representing
the
Common Shares which such holder is entitled to receive in accordance
with
section 2.2 hereof. When authorizing such delivery of a
certificate representing the Common Shares which such holder is entitled
to receive in exchange for such lost, stolen or destroyed certificate,
the
holder to whom a certificate representing such Common Shares is to
be
delivered shall, as a condition precedent to the delivery of such
Common
Shares, give a bond satisfactory to Biomira US and the Depositary
in such
amount as Biomira US and the Depositary may direct, or otherwise
indemnify
Biomira US and the Depositary in a manner satisfactory to Biomira US
and the Depositary, against any claim that may be made against Biomira
US
or the Depositary with respect to the certificate alleged to have
been
lost, stolen or destroyed and shall otherwise take such actions as
may be
required by the by-laws of Biomira
US.
|
|
|
(b)
|
Biomira
Preferred Shares - In the event that any certificate which immediately
prior to the Effective Date represented one or more outstanding Biomira
Preferred Shares shall have been lost, stolen or destroyed, upon
the
making of an affidavit of that fact by the holder claiming such
certificate to be lost, stolen or destroyed, Biomira US shall deliver
in
exchange for such lost, stolen or destroyed certificate, a certificate
representing the Preferred Shares which such holder is entitled to
receive
in accordance with section 2.2 hereof. When authorizing such
delivery of a certificate representing the Preferred Shares which
such
holder is entitled to receive in exchange for such lost, stolen or
destroyed certificate, the holder to whom a certificate representing
such
Preferred Shares is to be delivered shall, as a condition precedent
to the
delivery of such Preferred Shares, give a bond satisfactory to Biomira
US
in such amount as Biomira US may direct, or otherwise indemnify Biomira
US
in a manner satisfactory to Biomira US against any claim that may
be made
against Biomira US with respect to the certificate alleged to have
been
lost, stolen or destroyed and shall otherwise take such actions as
may be
required by the by-laws of Biomira
US.
|
8
|
4.3
|
Distributions
with Respect to Unsurrendered
Certificates
|
No
dividend or other distribution declared or made after the Effective Date with
respect to Common Shares or Preferred Shares with a record date after the
Effective Date shall be delivered to the holder of any unsurrendered certificate
which, immediately prior to the Effective Date, represented outstanding Biomira
Common Shares or Biomira Preferred Shares, as applicable, unless and until
the
holder of such certificate shall have complied with the provisions of section
4.1 or section 4.2 hereof. Subject to applicable law and to section
4.4 hereof, at the time of such compliance, there shall, in addition to the
delivery of a certificate representing the Common Shares or Preferred Shares,
as
applicable, to which such holder is thereby entitled, be delivered to such
holder, without interest, the amount of the dividend or other distribution
with
a record date after the Effective Date theretofore paid with respect to such
Common Shares or Preferred Shares, as applicable.
|
4.4
|
Withholding
Rights
|
Biomira
US and the Depositary shall be entitled to deduct and withhold from all
dividends or other distributions otherwise payable to any Former Biomira
Shareholder such amounts as Biomira US or the Depositary is required or
permitted to deduct and withhold with respect to such payment under the
Income Tax Act (Canada), the United States Internal Revenue Code of
1986 or any provision of any applicable federal, provincial, state, local
or foreign tax law, in each case, as amended. To the extent that
amounts are so withheld, such withheld amounts shall be treated for all purposes
hereof as having been paid to the Former Biomira Shareholder in respect of
which
such deduction and withholding was made, provided that such withheld amounts
are
actually remitted to the appropriate taxing authority.
4.5 Limitation
and Proscription
To
the extent that a Former Biomira Shareholder shall not have complied with the
provisions of section 4.1 or section 4.2 hereof on or before the date which
is
six years after the Effective Date (the “final proscription
date”), then the Common Shares or Preferred Shares which such Former
Biomira Shareholder was entitled to receive shall be automatically cancelled
without any repayment of capital in respect thereof and the certificates
representing (i) the Common Shares shall be delivered to Biomira US by the
Depositary for cancellation and shall be cancelled by Biomira US, and the
interest of the Former Biomira Shareholder in such Common Shares shall be
terminated as of such final proscription date; and (ii) the Preferred Shares
shall be cancelled by Biomira US, and the interest of the Former Biomira
Shareholder in such Preferred Shares shall be terminated as of the final
proscription date.
9
ARTICLE
5
AMENDMENT
5.1 Amendment
|
|
(a)
|
Each
of Biomira Canco, Biomira Sub-1, Biomira, Biomira US and Biomira
Sub-2
reserves the right to amend, modify and/or supplement this Plan of
Arrangement at any time and from time to time prior to the Effective
Date,
provided that each such amendment, modification or supplement must
be (i)
set out in writing, (ii) approved by the others, (iii) filed with
the
Court, and (vi) communicated to the Biomira Shareholders, if and
as
required by the Court.
|
|
|
(b)
|
Any
amendment, modification or supplement to this Plan of Arrangement
may be
proposed by either of Biomira Xxxxx, Biomira Sub-1, Biomira, Biomira
US
and Biomira Sub-2 at any time prior to the Biomira Meeting, with
or
without any other prior notice or communication, and, if so proposed
and
accepted by the persons voting at the Biomira Meeting, shall become
part
of this Plan of Arrangement for all
purposes.
|
|
|
(c)
|
Any
amendment, modification or supplement to this Plan of Arrangement
which is
approved or directed by the Court shall be effective only if it is
consented to by each of Biomira Canco, Biomira Sub-1, Biomira, Biomira
US
and Biomira Sub-2.
|
|
|
(d)
|
Any
amendment, modification or supplement to this Plan of Arrangement
may be
made following the Effective Date unilaterally by Biomira US, provided
that it concerns a matter which, in the reasonable opinion of Biomira
US,
is of an administrative nature required to better give effect to
the
implementation of this Plan of
Arrangement.
|
10
APPENDIX
A
PROVISIONS
ATTACHED TO THE BIOMIRA COMMON SHARES AND THE BIOMIRA PREFERRED SHARES WHICH
ARE
IDENTICAL TO THE BIOMIRA CANCO COMMON SHARES AND THE BIOMIRA CANCO PREFERRED
COMMON SHARES
|
A.
|
Authorized
Capital
|
| The corporation is authorized to issue: |
|
|
(a)
|
12,500
Class A Shares,
|
|
|
(b)
|
An
unlimited number of Common Shares.
|
|
B.
|
Rights,
Privileges, Restrictions and
Conditions
|
1. Dividends
The
holders of the Class A shares shall not be entitled to receive and the
corporation shall not pay any dividends on the Class A shares.
Subject
to the obligation of the corporation to redeem non-voting redeemable Class
A
shares as provided for in the provisions attaching to such shares, the holders
of the Common Shares shall be entitled to receive, and the corporation shall
pay
thereon, dividends as and when declared by the directors of the
corporation.
2. Liquidation,
Dissolution or Winding-Up
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 shares, as a
class, shall be entitled to receive from the assets of the corporation a sum
equivalent to the lesser of (a) 20% of the Net Profits of the corporation (as
defined in subclause 3(c) hereof) for the period commencing at the end of the
last completed financial year of the corporation and ending on the date of
the
distribution of assets of the corporation to its shareholders together with
20%
of the Net Profits of the corporation (as defined in subclause 3(c) hereof)
for
the last completed financial year less any amounts of said net profits received
by the holders of the Class A shares pursuant to subclause 3(c) hereof and
(b)
the aggregate Redemption Amount (as defined in subclause 3(a) hereof) of all
the
Class A shares then outstanding before any amount shall be paid or any property
or assets of the corporation distributed to the holders of the Common Shares
of
the corporation. After payment to the holders of the Class A shares
of the amount so payable to them as above provided they shall not be entitled
to
share in any further distribution of the assets or property of the
corporation;
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, subject to the prior rights of the holders
of
the Class A shares, the holders of the Common Shares shall be entitled to
receive the remaining property and assets of the corporation.
3. Redemption
(a) The
corporation may, subject to the requirements of the 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 shares on payment for each share to be redeemed
of $100, the same constituting and being referred to in subclause 3(b) hereof
as
the “Redemption Amount”.
11
(b) In
the case of redemption of Class A shares under the provisions of subclause
3(a)
hereof, the corporation shall, unless waived in writing by the holders of all
of
the Class A shares, at least 10 days before the date specified for redemption
deliver or mail to each person who at the date of mailing is a registered holder
of Class A shares to be redeemed a notice in writing of the intention of the
corporation to redeem such Class A shares. Such notice shall be
delivered or mailed by letter, postage prepaid, addressed to each such
shareholder at his address as it appears on the records 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 or if delivered, delivered to each such
shareholder at such address; provided, however, that accidental failure to
give
any such notice to one or more of such shareholders shall not affect the
validity of such redemption. Such notice shall set out the Redemption
Amount and the date on which redemption is to take place and if part only of
the
shares held by the person to whom it is addressed is to be redeemed the number
thereof to be so redeemed; provided, however, that if a part only of the Class
A
shares for the time being outstanding is to be redeemed, the shares so to be
redeemed shall be redeemed pro rata (disregarding fractions) unless otherwise
agreed in writing by the holders of all of the Class A shares. 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 A shares
to
be redeemed the Redemption Amount thereof on presentation and surrender at
the
registered office of the corporation or any other place designated in such
notice of the certificates representing the Class A shares called for
redemption. Such payment shall be made by cheque payable at par at
any branch of the corporation’s bankers in Canada. If less than all
of the Class A shares represented by any certificate are redeemed the holder
shall be entitled to receive a new certificate for that number of Class
A shares represented by the original certificate which are
not redeemed. From and after the date specified for redemption in any
such notice the holders of the Class A shares called for redemption shall not
be
entitled to exercise any of the rights of shareholders in respect thereof unless
payment of the Redemption Amount shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of shareholders 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 shares to deposit the Redemption Amount of the shares so
called for redemption or of such of the said shares represented by certificates
as 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
in 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 shares
called for redemption upon presentation and surrender to such bank or trust
company of the certificates representing the same. Upon such deposit
being made or upon the date specified for redemption in such notice, whichever
is the later, the Class A 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 Amount so
deposited against presentation and surrender of the said certificates held
by
them respectively and any interest on the amount so deposited shall be for
the
account of the corporation. If any part of the total Redemption
Amount so deposited has not been paid to or to the order of the respective
holders of the Class A shares which were called for
redemption within two years after the date upon which such deposit was made
or
the date specified for redemption in the said notice, whichever is the later,
such balance remaining in the said special account shall be returned to the
corporation without prejudice to the rights of the holders of the shares being
redeemed to claim the Redemption Amount without interest from the
corporation.
12
(c) Notwithstanding
the foregoing provisions, the corporation shall each year, within 30 days
following receipt by the corporation of the audited financial statements of
the
corporation for the corporation's preceding financial year, redeem in accordance
with subclause 3(b) hereof that number of Class A shares (disregarding
fractions) as is determined by dividing twenty percent (20%) of the Net Profits
of the corporation (as hereinafter defined) for such preceding financial year
by
$100. If such number of Class A shares so determined to be redeemed
is more than the total number of Class A shares then outstanding, the
corporation shall redeem all such Class A shares then outstanding within such
30
day period. “Net Profits of the corporation” means the after tax
profits determined in accordance with generally accepted accounting principles,
where relevant, consistently applied.
4. Voting
Rights
The
holders of the Class A shares as such shall not be entitled to receive notice
of
or to attend and vote at any meeting of the shareholders of the corporation,
unless the meeting is called to consider any matter in respect of which the
holders of the Class A shares would be entitled to vote separately as a class
in
which case the holders of the Class A shares shall be
entitled to receive notice of and to attend and vote at such
meeting.
The
holders of the Common Shares shall be entitled to receive notice of and to
attend all meetings of the shareholders of the corporation and shall be entitled
to one vote in respect of each Common Share held at such meetings.
13
APPENDIX
B and APPENDIX C
PROVISIONS
ATTACHED TO THE COMMON SHARES
AND
PROVISIONS
ATTACHED TO THE PREFERRED SHARES
14
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION OF
BIOMIRA
CORPORATION
Biomira
Corporation, a corporation organized and existing under the laws of the State
of
Delaware (the “Corporation”), certifies
that:
|
A.
|
The
name of the Corporation is Biomira Corporation. The
Corporation’s original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on September 7,
2007.
|
|
B.
|
This
Amended and Restated Certificate of Incorporation has been duly adopted
in
accordance with Section 241 of the Delaware General Corporation
Law.
|
|
C.
|
As
of the date of this Amended and Restated Certificate of Incorporation,
the
Corporation has issued no shares of stock and has received no payment
for
shares of its stock.
|
|
D.
|
The
text of the Certificate of Incorporation is amended and restated
to read
as set forth in EXHIBIT A attached
hereto.
|
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed by its sole incorporator, this
10th
day of September, 2007.
BIOMIRA
CORPORATION
a
Delaware corporation
By: /s/
XXXXX
XXXXXX
Xxxxx
Xxxxxx
Sole
Incorporator
15
EXHIBIT
A
ARTICLE
I
1.1 The
name of the corporation is Biomira Corporation.
ARTICLE
II
2.1 The
address of the corporation’s registered office in the State of Delaware is 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx of New
Castle. The name of the corporation’s registered agent at such
address is Corporation Service Company.
ARTICLE
III
3.1 The
purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law, as
the
same exists or as may hereafter be amended from time to time (the
“DGCL”).
ARTICLE
IV
4.1 The
corporation shall have authority to issue a total of 110,012,500 shares of
capital stock divided into 3 classes as follows:
|
|
(a)
|
One
Hundred Million (100,000,000) shares of Common Stock, $0.0001 par
value
per share (the “Common
Stock”).
|
|
|
(b)
|
Ten
Million (10,000,000) shares of Preferred Stock, $0.0001 par value
per
share (the “Preferred Stock”). The Preferred
Stock may be issued from time to time in one or more series pursuant
to a
resolution or resolutions providing for such issue duly adopted by
the
Board of Directors (authority to do so being hereby expressly vested
in
the Board of Directors). The Board of Directors is further
authorized, subject to limitations prescribed by law, to fix by resolution
or resolutions the designations, powers, preferences and rights,
and the
qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock, including without limitation
authority
to fix by resolution or resolutions the dividend rights, dividend
rate,
conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), redemption price or prices,
and
liquidation preferences of any such series, and the number of shares
constituting any such series and the designation thereof, or any
of the
foregoing.
|
|
|
(c)
|
Twelve
Thousand Five Hundred (12,500) shares of Class UA Preferred Stock,
no par
value (the “Class UA Preferred Stock”). The
powers Class UA Preferred Stock shall be as set for in Article VI
below.
|
4.2 The
Board of Directors is further authorized to increase (but not above the total
number of authorized shares of the class) or decrease (but not below the number
of shares of any such series then outstanding) the number of shares of any
series of Preferred Stock, the number of which was fixed by it, subsequent
to
the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions
thereof stated in the Certificate of Incorporation or the resolution of the
Board of Directors originally fixing the number of shares of such
series. If the number of shares of any series is so decreased, then
the corporation shall take all such steps as are necessary to cause the shares
constituting such decrease to resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
16
ARTICLE
V
The
preferences, rights, qualifications, limitations and restrictions of the Common
Stock and Class UA Preferred Stock are as follows:
5.1 Dividends.
|
|
(a)
|
The
holders of the shares of Class UA Preferred Stock shall not be entitled
to
receive, and the corporation shall not pay, any dividends on the
Class UA
Preferred Stock.
|
|
|
(b)
|
Dividends
may be paid on the Common Stock when, as and if declared by the Board
of
Directors.
|
5.2 Liquidation,
Dissolution or Winding-Up.
|
|
(a)
|
In
the event of the liquidation, dissolution or winding-up of the corporation
or other distribution of assets of the corporation among stockholders
for
the purpose of winding-up its affairs, the holders of the Class UA
Preferred Stock, as a class, shall be entitled to receive from the
assets
of the corporation a sum equivalent to the lesser
of:
|
|
|
(i)
|
Twenty
percent (20%) of the Net Profits of the Corporation (as defined in
Section
5.3(c) hereof) for the period commencing at the end of the last completed
financial year of the corporation and ending on the date of the
distribution of assets of the corporation to its stockholders together
with twenty percent (20%) of the Net Profits of the Corporation for
the
last completed financial year less any amounts of said net profits
received by the holders of the shares of Class UA Preferred Stock
pursuant
to Section 5.3(c) hereof; and
|
|
|
(ii)
|
The
aggregate Redemption Amount (as defined in Section 5.3(a) hereof)
of all
the shares of Class UA Preferred Stock then outstanding, before any
amount
shall be paid or any property or assets of the corporation distributed
to
the holders of the Common Stock of the corporation or the shares
of any
other series or class of capital stock ranking junior to the Class
UA
Preferred Stock. After payment to the holders of the Class UA
Preferred Stock of the amount so payable to them as above provided,
such
holders shall not be entitled to share in any further distribution
of the
assets or property of the corporation by virtue of their ownership
of
shares of Class UA Preferred Stock.
|
|
|
(b)
|
After
the payment or setting aside for payment to the holders of Class
UA
Preferred Stock of the full amounts specified in Section 5.2(a) above,
the
entire remaining assets of the corporation legally available for
distribution shall be distributed pro rata to holders of the Common
Stock
of the corporation in proportion to the number of shares of Common
Stock
held by them, subject to the rights and preferences of any then
outstanding shares of Preferred
Stock.
|
5.3 Redemption.
|
|
(a)
|
The
corporation may, subject to the requirements of the DGCL, upon giving
notice as hereinafter provided, redeem at any time the whole or from
time
to time all or any lesser number of the then outstanding shares of
Class
UA Preferred Stock on payment for each share to be redeemed of One
Hundred
Canadian Dollars (Cdn. $100.00) (the “Redemption
Amount”).
|
17
|
|
(b)
|
In
the case of redemption of Class UA Preferred Stock under the provisions
of
Section 5.3(a) hereof, the corporation shall, unless waived in writing
by
the holders of all of the shares of Class UA Preferred Stock, at
least ten
days before the date specified for redemption deliver or mail to
each
person who at the date of mailing is a registered holder of shares
of
Class UA Preferred Stock to be redeemed a notice in writing of the
intention of the corporation to redeem such shares of Class UA Preferred
Stock. Such notice shall be delivered or mailed by letter,
postage prepaid, addressed to each such stockholder at his, her or
its
address as it appears on the records of the corporation or in the
event of
the address of any such stockholder not so appearing then to the
last
known address of such stockholder or if delivered, delivered to each
such
stockholder at such address; provided, however, that
accidental failure to give any such notice to one or more of such
stockholders shall not affect the validity of such
redemption. Such notice shall set out the Redemption Amount and
the date on which redemption is to take place and if part only of
the
shares held by the person to whom it is addressed is to be redeemed
the
number thereof to be so redeemed; provided, however,
that if a part only of the shares of Class UA Preferred Stock for
the time
being outstanding is to be redeemed, the shares so to be redeemed
shall be
redeemed pro rata (disregarding fractions) unless otherwise agreed
in
writing by the holders of all of the shares of Class UA Preferred
Stock. 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
record
holders of the shares of Class UA Preferred Stock to be redeemed
the
Redemption Amount thereof on presentation and surrender at the registered
office of the corporation or any other place designated in such notice
of
the certificates representing the shares of Class UA Preferred Stock
called for redemption. Such payment shall be made by check
payable at par at any branch of the corporation’s bankers in
Canada. If less than all of the shares of Class UA Preferred
Stock represented by any certificate are redeemed, the holder shall
be
entitled to receive a new certificate for that number of shares of
Class
UA Preferred Stock represented by the original certificate that are
not
redeemed. From and after the date specified for redemption in
any such notice, the holders of the shares of Class UA Preferred
Stock
called for redemption shall not be entitled to exercise any of the
rights
of stockholders in respect thereof unless payment of the Redemption
Amount
shall not be made upon presentation of certificates in accordance
with the
foregoing provisions, in which case the rights of stockholders shall
remain unaffected. The corporation shall have the right, at any
time after the mailing of notice of its intention to redeem any shares
of
Class UA Preferred Stock, to deposit the Redemption Amount of the
shares
so called for redemption or of such of the said shares represented
by
certificates as 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 in 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 shares of Class UA Preferred Stock called
for
redemption upon presentation and surrender to such bank or trust
company
of the certificates representing the same. Upon such deposit
being made or upon the date specified for redemption in such notice,
whichever is the later, the shares of UA Preferred Stock 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 Amount so deposited against
presentation and surrender of the said certificates held by them
respectively and any interest on the amount so deposited shall be
for the
account of the corporation. If any part of the total Redemption
Amount so deposited has not been paid to or to the order of the respective
holders of the shares of Class UA Preferred Stock which were called
for
redemption within two years after the date upon which such deposit
was
made or the date specified for redemption in the said notice, whichever
is
the later, such balance remaining in the said special account shall
be
returned to the corporation without prejudice to the rights of the
holders
of the shares being redeemed to claim the Redemption Amount without
interest from the corporation.
|
|
|
(c)
|
Notwithstanding
the foregoing provisions, the corporation shall, each year, within
30 days
following receipt by the corporation of the audited financial statements
of the corporation for the corporation’s preceding financial year, redeem,
subject to the requirements of the DGCL and in accordance with Section
5.3(b) hereof, that number of shares of Class UA Preferred Stock
(disregarding fractions) as is determined by dividing twenty percent
(20%)
of the Net Profits of the Corporation (as hereinafter defined) for
such
preceding financial year by One Hundred Canadian Dollars (Cdn.
$100.00). If such number of shares of Class UA Preferred Stock
so determined to be redeemed is more than the total number of shares
of
Class UA Preferred Stock then outstanding, the corporation shall
redeem
all such shares of Class UA Preferred Stock then outstanding within
such
thirty (30) day period “Net Profits of the Corporation”
means the after tax profits determined in accordance with generally
accepted accounting principles, where relevant, consistently
applied.
|
18
|
|
(d)
|
The
shares of Common Stock shall have no right of
redemption.
|
5.4 Voting
Rights.
|
|
(a)
|
Class
UA Preferred Stock. The holders of the shares of Class UA
Preferred Stock as such shall not be entitled to receive notice of,
or to
attend and vote at, any meeting of the stockholders of the corporation,
unless the meeting is called to consider any matter in respect of
which
the holders of the shares of Class UA Preferred Stock would be entitled
to
vote separately as a class, in which case the holders of the shares
of
Class UA Preferred Stock shall be entitled to receive notice of and
to
attend and vote at such meeting.
|
|
|
(b)
|
Common
Stock. Except as otherwise provided by law, each share of
Common Stock shall entitle the holder thereof to one vote on each
matter
submitted to a vote at a meeting of
stockholders.
|
|
|
(c)
|
Adjustment
in Authorized Stock. The number of authorized shares of
any class or series of the corporation’s stock may be increased or
decreased (but not below the number of shares thereof then outstanding)
by
an affirmative vote of the holders of a majority of the stock of
the
corporation.
|
ARTICLE
VI
6.1 The
number of directors that constitutes the entire Board of Directors of the
corporation shall be fixed by, or in the manner provided in, the Bylaws of
the
corporation. At each annual meeting of stockholders, directors of the
corporation shall be elected to hold office until the expiration of the term
for
which they are elected and until their successors have been duly elected and
qualified or until their earlier resignation or removal; except that if any
such
election shall not be so held, such election shall take place at a stockholders’
meeting called and held in accordance with the DGCL.
6.2 Effective
at such time as the corporation becomes a reporting issuer under the Securities
and Exchange Act of 1934 (the “Effective Date”), the directors
of the corporation shall be divided into three classes as nearly equal in size
as is practicable, hereby designated Class I, Class II and Class
III. The Board of Directors may assign members of the Board of
Directors already in office to such classes at the time such classification
becomes effective. The term of office of the initial Class I
directors shall expire at the first regularly-scheduled annual meeting of the
stockholders following the effective date of this Certificate of Incorporation,
the term of office of the initial Class II directors shall expire at the second
annual meeting of the stockholders following the Effective Date and the term
of
office of the initial Class III directors shall expire at the third annual
meeting of the stockholders following the Effective Date. At each
annual meeting of stockholders, commencing with the first regularly-scheduled
annual meeting of stockholders following the Effective Date, each of the
successors elected to replace the directors of a Class whose term shall have
expired at such annual meeting shall be elected to hold office until the third
annual meeting next succeeding his or her election and until his or her
respective successor shall have been duly elected and qualified.
6.3 Notwithstanding
the foregoing provisions of this Article, each director shall serve until his
or
her successor is duly elected and qualified or until his or her death,
resignation, or removal If the number of directors is hereafter
changed, any newly created directorships or decrease in directorships shall
be
so apportioned among the classes as to make all classes as nearly equal in
number as is practicable, provided that no decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
19
6.4 Any
director may be removed from office by the stockholders of the corporation
only
for cause. Vacancies occurring on the Board of Directors for any
reason and newly created directorships resulting from an increase in the
authorized number of directors may be filled only by vote of a majority of
the
remaining members of the Board of Directors, although less than a quorum, or
by
a sole remaining director, at any meeting of the Board of Directors and may
not
be filled by the stockholders. A person so elected by the Board of
Directors to fill a vacancy or newly created directorship shall hold office
until the next election of the class for which such director shall have been
chosen and until his or her successor shall be duly elected and
qualified.
6.5 No
stockholder will be permitted to cumulate votes at any election of
directors.
ARTICLE
VII
7.1 In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors of the corporation is expressly authorized to adopt, amend or
repeal the Bylaws of the corporation.
ARTICLE
VIII
8.1 Elections
of directors need not be by written ballot unless the Bylaws of the corporation
shall so provide.
ARTICLE
IX
9.1 No
action shall be taken by the stockholders of the corporation except at an annual
or special meeting of the stockholders called in accordance with the Bylaws,
and
no action shall be taken by the stockholders by written consent.
ARTICLE
X
10.1 To
the fullest extent permitted by the DGCL, as it presently exists or may
hereafter be amended from time to time, a director of the corporation shall
not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL,
as
so amended.
10.2 The
corporation shall indemnify, to the fullest extent permitted by applicable
law,
any director or officer of the corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(a
“Proceeding”) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with any such
Proceeding. The corporation shall be required to indemnify a person
in connection with a Proceeding initiated by such person only if the Proceeding
was authorized by the Board.
10.3 The
corporation shall have the power to indemnify, to the extent permitted by the
DGCL, as it presently exists or may hereafter be amended from time to time,
any
employee or agent of the corporation who was or is a party or is threatened
to
be made a party to any Proceeding by reason of the fact that he or she is or
was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with any such
Proceeding.
20
10.4 Neither
any amendment nor repeal of this Article X, nor the adoption of any provision
of
the corporation’s Certificate of Incorporation inconsistent with this Article X,
shall eliminate or reduce the effect of this Article X in respect of any matter
occurring, or any cause of action, suit or proceeding accruing or arising or
that, but for this Article X, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
ARTICLE
XI
11.1 Except
as provided in Article X above, the corporation reserves the right to amend
or
repeal any provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all rights conferred
upon stockholders are granted subject to this reservation; provided,
however, that notwithstanding any other provision of this Certificate
of Incorporation, or any provision of law that might otherwise permit a lesser
vote or no vote, the Board of Directors acting pursuant to a resolution adopted
by a majority of the Board of Directors and the affirmative vote of sixty-six
and two-thirds percent (662⁄3%) of the then outstanding voting securities of the
corporation, voting together as a single class, shall be required for the
amendment, repeal or modification of the provisions of Section 4.1(b) of Article
IV, Sections 6.2, 6.3, 6.4 and 6.5 of Article VI, Article IX or Article XI
of
this Certificate of Incorporation.
ARTICLE
XII
12.1 The
name and mailing address of the incorporator are as follows:
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000
Xxxxx Xxxxxx, Xxxxx 0000
Seattle,
Washington 98104
21
SCHEDULE
A
AUTHORIZED
CAPITAL
|
1.
|
Authorized
Capital
|
The
corporation is authorized to issue:
|
|
(a)
|
An
unlimited number of Class A Shares,
|
|
|
(b)
|
An
unlimited number of Class B Shares,
|
|
|
(c)
|
An
unlimited number of Class C Shares,
|
|
|
(d)
|
An
unlimited number of Class D Shares,
|
|
|
(e)
|
An
unlimited number of Class E Shares,
and
|
|
|
(f)
|
An
unlimited number of Class F Shares.
|
|
2.
|
Acquired
Assets
|
Where
shares of any class are issued by the corporation in exchange for
|
|
(a)
|
property,
other than a promissory note or promise to pay,
or
|
|
|
(b)
|
issued
shares of the corporation of a different
class,
|
such
property or such issued shares of a different class shall herein be called
the
"Acquired Assets".
|
3.
|
Rights,
Privileges, Restrictions and
Conditions
|
There
shall be attached to the authorized shares of the respective classes, the
following rights, privileges, restrictions and conditions:
|
|
(a)
|
Voting
|
|
|
(i)
|
The
holders of the Class A and Class E Shares shall be entitled to
one (1)
vote for each Class A and Class E Share held at all meetings of
the
shareholders.
|
|
|
(ii)
|
The
holders of the Class B, Class C, Class D and Class F Shares shall
have no
right to vote at any meeting of the shareholders by virtue of their
holding of any Class B, Class C, Class D or Class F
Shares.
|
|
|
(b)
|
Dividends
|
|
|
(i)
|
The
holders of the Class E Shares shall not be entitled to any dividends
by
virtue of their holding of any Class E Shares and the Board shall
not
declare any dividends on the Class E
Shares.
|
|
|
(ii)
|
The
holders of the Class C Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class C Share
held.
|
If
the Board has declared a dividend on the Class C Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class C Shares for that fiscal year until the
dividend declared on the Class C Shares is paid or set apart for
payment.
The
holders of the Class C Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class C Shares, then the
rights
of the holders of the Class C Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(iii)
|
The
holders of the Class D Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class D Share
held.
|
If
the Board has declared a dividend on the Class D Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class D Shares for that fiscal year until the
dividend declared on the Class D Shares is paid or set apart for
payment.
The
holders of the Class D Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class D Shares, then the
rights
of the holders of the Class D Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(iv)
|
The
holders of the Class F Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class F Share
held.
|
If
the Board has declared a dividend on the Class F Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class F Shares for that fiscal year until the
dividend declared on the Class F Shares is paid or set apart for
payment.
-
2
-
The
holders of the Class F Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class F Shares, then the
rights
of the holders of the Class F Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(v)
|
The
Board may at any time declare a dividend on the issued and outstanding
Class C, Class D or Class F Shares without declaring any dividend
or a
dividend in the same amount on the issued and outstanding shares
of any
other class of shares.
|
|
|
(vi)
|
Subject
to subsections 3(b)(ii), (iii) and (iv) the Board may at any time
declare
a dividend on the issued and outstanding Class A or Class B Shares
without
declaring any dividend or a dividend in the same amount on the
issued and
outstanding shares of the other class. No declaration or payment
of any
dividend shall be made to the holders of any Class A or Class B
Shares if
there are reasonable grounds for the Board to believe
that:
|
|
|
(A)
|
the
corporation is, or would after the payment be, unable to pay its
liabilities as they become due, or
|
|
|
(B)
|
the
declaration or payment of such dividend would result in the realizable
value of the assets of the corporation being reduced to less than
the
aggregate of
|
|
|
(1)
|
the
liabilities of the corporation,
|
|
|
(2)
|
the
Redemption Amounts of all issued and outstanding Class C, Class
D and
Class F Shares, and
|
|
|
(3)
|
the
stated capital of the Class A, Class B and Class E
Shares.
|
|
|
(c)
|
Redemption
|
|
|
(i)
|
Any
holder of Class C, Class D, Class E or Class F Shares shall be
entitled to
require the corporation to redeem all or any part of the Class
C, Class D,
Class E or Class F Shares registered in the name of such holder
on the
books of the corporation by tendering to the corporation, at its
registered office, the share certificate or certificates representing
the
Class C, Class D, Class E or Class F Shares which the registered
holder
desires to have the corporation redeem, properly endorsed in blank
for
transfer or accompanied by an appropriate form of transfer properly
executed in blank and in either case, if required by the Board,
with the
signature guaranteed by a Canadian chartered bank together with
a request
in writing (herein called the "Redemption Notice")
specifying
|
-
3
-
|
|
(A)
|
that
the registered holder desires to have all or a specified number
of the
Class C, Class D, Class E or Class F Shares represented by such
certificate or certificates redeemed by the corporation,
and
|
|
|
(B)
|
the
business day (herein called the "Redemption Date") on which the
holder
desires to have the corporation redeem such Class C, Class D, Class
E or
Class F Shares.
|
If
the Redemption Notice is signed by an attorney, it shall be accompanied by
evidence of the authority of such attorney satisfactory to the
Board.
|
|
(ii)
|
Upon
receipt of the share certificate or certificates representing the
Class C,
Class D, Class E or Class F Shares which the registered holder
desires to
have the corporation redeem, together with the Redemption Notice,
the
corporation shall on the Redemption Date redeem such Class C, Class
D,
Class E or Class F Shares by paying to such registered holder,
by cheque
payable at any branch of the corporation's bankers in Canada, for
each
Class C, Class D, Class E or Class F Share
redeemed:
|
|
|
(A)
|
for
each Class C Share to be redeemed, the Redemption Amount together
with all
discretionary dividends declared thereon but
unpaid,
|
|
|
(B)
|
for
each Class D Share to be redeemed, an amount equal to the Redemption
Amount together with all discretionary dividends declared thereon
but
unpaid,
|
|
|
(C)
|
for
each Class E Share to be redeemed, an amount equal to the Redemption
Amount, and
|
|
|
(D)
|
for
each Class F Share to be redeemed, the Redemption Amount together
with all
discretionary dividends declared thereon but
unpaid.
|
The
Class C, Class D, Class E or Class F Shares shall be redeemed on the Redemption
Date. The rights of the holders of such Class C, Class D, Class E or Class
F
Shares shall remain unaffected until the amount payable on redemption has
been
paid. Subsequent to payment of the amount payable on redemption, the holders
of
such Class C, Class D, Class E or Class F Shares shall not be entitled to
any
rights in respect thereof.
-
4
-
|
|
(iii)
|
The
Redemption Amount payable for each Class C Share shall be equal
to the
proportion of the difference
between
|
|
|
(A)
|
the
fair market value of the Acquired Assets for which the Class C
Shares were
issued, as at the date of purchase by the corporation, as determined
by
the Board (in this paragraph and paragraph (iv) called the "Acquired
Assets Value"), and
|
|
|
(B)
|
the
aggregate of the values of any non-share consideration given or
assumed by
the corporation as partial consideration for the Acquired Assets
(in this
paragraph and paragraph (iv) called the "Non-Share Consideration
Value"),
|
that
one (l) bears to the total number of Class C Shares issued in exchange for
the
Acquired Assets and shall be fixed by the Board upon issuance of any Class
C
Shares.
|
|
(iv)
|
If
subsequent to the issuance of Class C Shares issued in exchange
for any
Acquired Assets it is determined by agreement between the Board
and
representatives of the Minister of National Revenue, or any other
competent authority, or otherwise to the satisfaction of the Board
that
the Acquired Assets Value should have been a greater or lesser
amount than
the amount determined upon issuance (such greater or lesser amount
shall
in this paragraph be called the "Adjusted Acquired Assets Value"),
or the
Non-Share Consideration Value should have been a greater or lesser
amount
than the amount determined upon issuance (such greater or lesser
amount
shall in this paragraph be called the "Adjusted Non-Share Consideration
Value"), the Redemption Amount payable for each Class C Share issued
in
exchange for those Acquired Assets and remaining outstanding at
that time
shall be equal to the proportion of the difference
between
|
|
|
(A)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(B)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class C Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the corporation at
or before
that time that one (1) bears to the total number of Class C Shares
issued
in exchange for those Acquired Assets and remaining outstanding
at that
time.
|
-
5
-
If
the corporation has purchased or redeemed all of the Class C Shares issued
in
exchange for any Acquired Assets at or before the time that the Adjusted
Acquired Assets Value or the Adjusted Non-Share Consideration Value is
determined and the agreement (the "Acquisition Agreement") pursuant to which
the
corporation originally acquired the Acquired Assets requires the issuance
of an
additional share upon such adjustment being made when all of the Class C
Shares
originally issued have been purchased or redeemed, then the corporation shall
issue one (1) additional Class C Share which shall be deemed to have been
issued
in exchange for those Acquired Assets, the Board shall fix the stated capital
of
that Class C Share in accordance with the Acquisition Agreement and the
Redemption Amount of that Class C Share shall be equal to the difference
between
|
|
(C)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(D)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class C Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the
corporation.
|
|
|
(v)
|
The
Redemption Amount payable for each Class D Share shall be equal
to the
proportion of the stated capital account maintained for the Class
D Shares
that one (1) bears to the total number of Class D Shares issued
and
outstanding.
|
|
|
(vi)
|
The
Redemption Amount payable for each Class E Share shall be equal
to the
proportion of the stated capital account maintained for the Class
E Shares
that one (1) bears to the total number of Class E Shares issued
and
outstanding.
|
|
|
(vii)
|
The
Redemption Amount payable for each Class F Share shall be equal
to the
proportion of the difference
between
|
|
|
(A)
|
the
fair market value of the Acquired Assets for which the Class F
Shares were
issued, as at the date of purchase by the corporation, as determined
by
the Board (in this paragraph and paragraph (viii) called the "Acquired
Assets Value"), and
|
|
|
(B)
|
the
aggregate of the values of any non-share consideration given or
assumed by
the corporation as partial consideration for the Acquired Assets
(in this
paragraph and paragraph (viii) called the "Non-Share Consideration
Value"),
|
that
one (l) bears to the total number of Class F Shares issued in exchange for
the
Acquired Assets and shall be fixed by the Board upon issuance of any Class
F
Shares.
-
6
-
|
|
(viii)
|
If
subsequent to the issuance of Class F Shares issued in exchange
for any
Acquired Assets it is determined by agreement between the Board
and
representatives of the Minister of National Revenue, or any other
competent authority, or otherwise to the satisfaction of the Board
that
the Acquired Assets Value should have been a greater or lesser
amount than
the amount determined upon issuance (such greater or lesser amount
shall
in this paragraph be called the "Adjusted Acquired Assets Value"),
or the
Non-Share Consideration Value should have been a greater or lesser
amount
than the amount determined upon issuance (such greater or lesser
amount
shall in this paragraph be called the "Adjusted Non-Share Consideration
Value"), the Redemption Amount payable for each Class F Share issued
in
exchange for those Acquired Assets and remaining outstanding at
that time
shall be equal to the proportion of the difference
between
|
|
|
(A)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(B)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class F Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the corporation at
or before
that time that one (1) bears to the total number of Class F Shares
issued
in exchange for those Acquired Assets and remaining outstanding
at that
time.
|
If
the corporation has purchased or redeemed all of the Class F Shares issued
in
exchange for any Acquired Assets at or before the time that the Adjusted
Acquired Assets Value or the Adjusted Non-Share Consideration Value is
determined and the agreement (the "Acquisition Agreement") pursuant to which
the
corporation originally acquired the Acquired Assets requires the issuance
of an
additional share upon such adjustment being made when all of the Class F
Shares
originally issued have been purchased or redeemed, then the corporation shall
issue one (1) additional Class F Share which shall be deemed to have been
issued
in exchange for those Acquired Assets, the Board shall fix the stated capital
of
that Class F Share in accordance with the Acquisition Agreement and the
Redemption Amount of that Class F Share shall be equal to the difference
between
-
7
-
|
|
(C)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(D)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class F Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the
corporation.
|
|
|
(ix)
|
If
the redemption of all the issued and outstanding Class C, Class
D, Class E
or Class F Shares in respect of which the corporation has received
Redemption Notices would cause the corporation to be in contravention
of
the Canada Business Corporations Act, the corporation shall at
that time
redeem, on a pro rata basis, disregarding fractions, only such
number of
Class C, Class D, Class E or Class F Shares as can be redeemed
without
causing such contravention and the corporation shall redeem the
balance of
the issued and outstanding Class C, Class D, Class E or Class F
Shares in
respect of which the corporation has received Redemption Notices
on a pro
rata basis, disregarding fractions, at such time as redemption
can be made
without causing the corporation to be in contravention of the Canada
Business Corporations Act.
|
|
|
(x)
|
Upon
giving notice as herein provided, the Board may redeem the whole
or any
part of the issued and outstanding Class C, Class D, Class E or
Class F
Shares upon payment,
|
|
|
(A)
|
for
each Class C, Class D or Class F Share to be redeemed, of an amount
equal
to the Redemption Amount together with all discretionary dividends
declared thereon but unpaid, and
|
|
|
(B)
|
for
each Class E Share to be redeemed, of an amount equal to the Redemption
Amount.
|
Unless
waived by the registered holder of the shares to be redeemed, at least ten
(l0)
days notice in writing of such redemption shall be given by mailing to the
registered holder of the Class C, Class D, Class E or Class F Shares to be
redeemed a notice specifying the date and place of redemption, which may
be a
chartered bank. If notice of any such redemption is given by the corporation
in
such manner and amounts sufficient to redeem the Class C, Class D, Class
E or
Class F Shares to be redeemed is deposited to a special account at any chartered
bank specified in such notice, the Class C, Class D, Class E or Class F Shares
in respect of which such deposit has been made shall be redeemed and the
holder
of such Class C, Class D, Class E or Class F Shares shall thereafter have
no
rights against the corporation in respect thereof except upon surrender of
the
certificates for such Class C, Class D, Class E or Class F Shares to receive
payment therefor, without interest, out of the monies so deposited.
-
8
-
|
|
(d)
|
Corporate
Purchase
|
Except
where the corporation redeems shares pursuant to subsection 3(c) hereof,
the
corporation shall not make any payment to purchase or otherwise acquire any
shares issued by it if there are reasonable grounds for the Board to believe
that:
|
|
(i)
|
The
corporation is, or would after the payment be, unable to pay its
liabilities as they become due, or
|
|
|
(ii)
|
The
realizable value of the corporation's assets would after the payment
be
less than the aggregate of
|
|
|
(A)
|
the
liabilities of the corporation,
|
|
|
(B)
|
the
Redemption Amounts of all issued and outstanding Class C and Class
F
Shares, and
|
|
|
(C)
|
the
stated capital of the Class A, Class B, Class D and Class E
Shares.
|
|
|
(e)
|
Liquidation
|
In
the event of the voluntary or involuntary 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:
|
|
(i)
|
The
holders of the Class C, Class D and Class F Shares shall be entitled
to
receive ratably at the same time, before any distribution of any
part of
the assets of the corporation among the holders of the other classes
of
shares, from the assets of the corporation, an amount equal to
the
Redemption Amount for each Class C, Class D or Class F Share held
by them,
together with any dividends declared thereon but unpaid, and no
more;
|
-
9
-
|
|
(ii)
|
After
distribution to the holders of the Class C, Class D and Class F
Shares,
but before any distribution of the assets of the corporation between
the
holders of the Class A and Class B Shares, the holders of the Class
E
Shares shall be entitled to receive ratably at the same time, from
the
assets of the corporation, an amount equal to the Redemption Amount
for
each Class E Share held by them, and no more;
and
|
|
|
(iii)
|
The
holders of the issued and outstanding Class A and Class B Shares
shall be
entitled to participate ratably at the same time in any further
distribution of the assets of the
corporation.
|
-
10
-
SHARE
TRANSFER RESTRICTIONS
So
long as the corporation is a private issuer as defined in securities law,
no
securities of the corporation, other than non-convertible debt securities,
shall
be transferred without the consent of the directors, expressed by a
resolution.
SCHEDULE
C
OTHER
PROVISIONS
|
1.
|
Lien
On Shares
|
The
corporation shall have a first and paramount lien on a share registered in
the
name of a shareholder or his legal representative, whether registered solely
or
jointly with any other person, for a debt of that shareholder to the
corporation, including an amount unpaid in respect of a share issued by the
corporation on the date it was incorporated under the Business Corporations
Act
(Alberta), whether the period for payment, fulfilment or discharge of that
debt
shall have actually arrived or not. The lien shall extend to all
dividends and distributions of capital declared or otherwise payable on such
shares.
|
2.
|
Appointment
of Directors
|
The
directors of the corporation may, between annual general meetings, appoint
one
(1) or more additional directors of the corporation to serve until the next
annual general meeting, provided that the number of additional directors
shall
not at any time exceed one-third (1/3) of the number of directors who held
office at the expiration of the last annual meeting of the
corporation.
|
3.
|
Borrowing
|
The
directors of the corporation may,
|
(a)
|
borrow
money on the credit of the
corporation,
|
|
(b)
|
issue,
reissue, sell or pledge debt obligations of the
corporation,
|
|
(c)
|
give
a guarantee on behalf of the corporation to secure performance
of an
obligation of any person, and
|
|
(d)
|
mortgage,
hypothecate, pledge or otherwise create a security interest in
all or any
property of the corporation, owned or subsequently acquired, to
secure any
obligation of the corporation.
|
|
4.
|
Meetings
of Shareholders
|
Meetings
of shareholders of the corporation may be held inside or outside
Canada.
SCHEDULE
A
AUTHORIZED
CAPITAL
|
1.
|
Authorized
Capital
|
The
corporation is authorized to issue:
|
|
(a)
|
An
unlimited number of Class A Shares,
|
|
|
(b)
|
An
unlimited number of Class B Shares,
|
|
|
(c)
|
An
unlimited number of Class C Shares,
|
|
|
(d)
|
An
unlimited number of Class D Shares,
|
|
|
(e)
|
An
unlimited number of Class E Shares,
and
|
|
|
(f)
|
An
unlimited number of Class F Shares.
|
|
2.
|
Acquired
Assets
|
Where
shares of any class are issued by the corporation in exchange for
|
|
(a)
|
property,
other than a promissory note or promise to pay,
or
|
|
|
(b)
|
issued
shares of the corporation of a different
class,
|
such
property or such issued shares of a different class shall herein be called
the
"Acquired Assets".
|
3.
|
Rights,
Privileges, Restrictions and
Conditions
|
There
shall be attached to the authorized shares of the respective classes, the
following rights, privileges, restrictions and conditions:
|
|
(a)
|
Voting
|
|
|
(i)
|
The
holders of the Class A and Class E Shares shall be entitled to
one (1)
vote for each Class A and Class E Share held at all meetings of
the
shareholders.
|
|
|
(ii)
|
The
holders of the Class B, Class C, Class D and Class F Shares shall
have no
right to vote at any meeting of the shareholders by virtue of their
holding of any Class B, Class C, Class D or Class F
Shares.
|
|
|
(b)
|
Dividends
|
|
|
(i)
|
The
holders of the Class E Shares shall not be entitled to any dividends
by
virtue of their holding of any Class E Shares and the Board shall
not
declare any dividends on the Class E
Shares.
|
|
|
(ii)
|
The
holders of the Class C Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class C Share
held.
|
If
the Board has declared a dividend on the Class C Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class C Shares for that fiscal year until the
dividend declared on the Class C Shares is paid or set apart for
payment.
The
holders of the Class C Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class C Shares, then the
rights
of the holders of the Class C Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(iii)
|
The
holders of the Class D Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class D Share
held.
|
If
the Board has declared a dividend on the Class D Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class D Shares for that fiscal year until the
dividend declared on the Class D Shares is paid or set apart for
payment.
The
holders of the Class D Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class D Shares, then the
rights
of the holders of the Class D Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(iv)
|
The
holders of the Class F Shares shall only be entitled to receive
and the
corporation shall only be obligated to pay such dividends as the
Board may
declare, provided that such dividends shall not exceed in any one
fiscal
year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as
herein
defined) of each Class F Share
held.
|
If
the Board has declared a dividend on the Class F Shares for any fiscal year,
no
dividend shall be declared or paid or set aside for payment for any class
of
shares ranking junior to the Class F Shares for that fiscal year until the
dividend declared on the Class F Shares is paid or set apart for
payment.
-
2
-
The
holders of the Class F Shares shall not be entitled to any dividends other
than
or in excess of the dividends herein provided for, and if the Board does
not
declare a dividend for that fiscal year for the Class F Shares, then the
rights
of the holders of the Class F Shares to any dividend for such fiscal year
shall
be forever extinguished.
|
|
(v)
|
The
Board may at any time declare a dividend on the issued and outstanding
Class C, Class D or Class F Shares without declaring any dividend
or a
dividend in the same amount on the issued and outstanding shares
of any
other class of shares.
|
|
|
(vi)
|
Subject
to subsections 3(b)(ii), (iii) and (iv) the Board may at any time
declare
a dividend on the issued and outstanding Class A or Class B Shares
without
declaring any dividend or a dividend in the same amount on the
issued and
outstanding shares of the other class. No declaration or payment
of any
dividend shall be made to the holders of any Class A or Class B
Shares if
there are reasonable grounds for the Board to believe
that:
|
|
|
(A)
|
the
corporation is, or would after the payment be, unable to pay its
liabilities as they become due, or
|
|
|
(B)
|
the
declaration or payment of such dividend would result in the realizable
value of the assets of the corporation being reduced to less than
the
aggregate of
|
|
|
(1)
|
the
liabilities of the corporation,
|
|
|
(2)
|
the
Redemption Amounts of all issued and outstanding Class C, Class
D and
Class F Shares, and
|
|
|
(3)
|
the
stated capital of the Class A, Class B and Class E
Shares.
|
|
|
(c)
|
Redemption
|
|
|
(i)
|
Any
holder of Class C, Class D, Class E or Class F Shares shall be
entitled to
require the corporation to redeem all or any part of the Class
C, Class D,
Class E or Class F Shares registered in the name of such holder
on the
books of the corporation by tendering to the corporation, at its
registered office, the share certificate or certificates representing
the
Class C, Class D, Class E or Class F Shares which the registered
holder
desires to have the corporation redeem, properly endorsed in blank
for
transfer or accompanied by an appropriate form of transfer properly
executed in blank and in either case, if required by the Board,
with the
signature guaranteed by a Canadian chartered bank together with
a request
in writing (herein called the "Redemption Notice")
specifying
|
-
3
-
|
|
(A)
|
that
the registered holder desires to have all or a specified number
of the
Class C, Class D, Class E or Class F Shares represented by such
certificate or certificates redeemed by the corporation,
and
|
|
|
(B)
|
the
business day (herein called the "Redemption Date") on which the
holder
desires to have the corporation redeem such Class C, Class D, Class
E or
Class F Shares.
|
If
the Redemption Notice is signed by an attorney, it shall be accompanied by
evidence of the authority of such attorney satisfactory to the
Board.
|
|
(ii)
|
Upon
receipt of the share certificate or certificates representing the
Class C,
Class D, Class E or Class F Shares which the registered holder
desires to
have the corporation redeem, together with the Redemption Notice,
the
corporation shall on the Redemption Date redeem such Class C, Class
D,
Class E or Class F Shares by paying to such registered holder,
by cheque
payable at any branch of the corporation's bankers in Canada, for
each
Class C, Class D, Class E or Class F Share
redeemed:
|
|
|
(A)
|
for
each Class C Share to be redeemed, the Redemption Amount together
with all
discretionary dividends declared thereon but
unpaid,
|
|
|
(B)
|
for
each Class D Share to be redeemed, an amount equal to the Redemption
Amount together with all discretionary dividends declared thereon
but
unpaid,
|
|
|
(C)
|
for
each Class E Share to be redeemed, an amount equal to the Redemption
Amount, and
|
|
|
(D)
|
for
each Class F Share to be redeemed, the Redemption Amount together
with all
discretionary dividends declared thereon but
unpaid.
|
The
Class C, Class D, Class E or Class F Shares shall be redeemed on the Redemption
Date. The rights of the holders of such Class C, Class D, Class E or Class
F
Shares shall remain unaffected until the amount payable on redemption has
been
paid. Subsequent to payment of the amount payable on redemption, the holders
of
such Class C, Class D, Class E or Class F Shares shall not be entitled to
any
rights in respect thereof.
-
4
-
|
|
(iii)
|
The
Redemption Amount payable for each Class C Share shall be equal
to the
proportion of the difference
between
|
|
|
(A)
|
the
fair market value of the Acquired Assets for which the Class C
Shares were
issued, as at the date of purchase by the corporation, as determined
by
the Board (in this paragraph and paragraph (iv) called the "Acquired
Assets Value"), and
|
|
|
(B)
|
the
aggregate of the values of any non-share consideration given or
assumed by
the corporation as partial consideration for the Acquired Assets
(in this
paragraph and paragraph (iv) called the "Non-Share Consideration
Value"),
|
that
one (l) bears to the total number of Class C Shares issued in exchange for
the
Acquired Assets and shall be fixed by the Board upon issuance of any Class
C
Shares.
|
|
(iv)
|
If
subsequent to the issuance of Class C Shares issued in exchange
for any
Acquired Assets it is determined by agreement between the Board
and
representatives of the Minister of National Revenue, or any other
competent authority, or otherwise to the satisfaction of the Board
that
the Acquired Assets Value should have been a greater or lesser
amount than
the amount determined upon issuance (such greater or lesser amount
shall
in this paragraph be called the "Adjusted Acquired Assets Value"),
or the
Non-Share Consideration Value should have been a greater or lesser
amount
than the amount determined upon issuance (such greater or lesser
amount
shall in this paragraph be called the "Adjusted Non-Share Consideration
Value"), the Redemption Amount payable for each Class C Share issued
in
exchange for those Acquired Assets and remaining outstanding at
that time
shall be equal to the proportion of the difference
between
|
|
|
(A)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(B)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class C Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the corporation at
or before
that time that one (1) bears to the total number of Class C Shares
issued
in exchange for those Acquired Assets and remaining outstanding
at that
time.
|
-
5
-
If
the corporation has purchased or redeemed all of the Class C Shares issued
in
exchange for any Acquired Assets at or before the time that the Adjusted
Acquired Assets Value or the Adjusted Non-Share Consideration Value is
determined and the agreement (the "Acquisition Agreement") pursuant to which
the
corporation originally acquired the Acquired Assets requires the issuance
of an
additional share upon such adjustment being made when all of the Class C
Shares
originally issued have been purchased or redeemed, then the corporation shall
issue one (1) additional Class C Share which shall be deemed to have been
issued
in exchange for those Acquired Assets, the Board shall fix the stated capital
of
that Class C Share in accordance with the Acquisition Agreement and the
Redemption Amount of that Class C Share shall be equal to the difference
between
|
|
(C)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(D)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class C Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the
corporation.
|
|
|
(v)
|
The
Redemption Amount payable for each Class D Share shall be equal
to the
proportion of the stated capital account maintained for the Class
D Shares
that one (1) bears to the total number of Class D Shares issued
and
outstanding.
|
|
|
(vi)
|
The
Redemption Amount payable for each Class E Share shall be equal
to the
proportion of the stated capital account maintained for the Class
E Shares
that one (1) bears to the total number of Class E Shares issued
and
outstanding.
|
|
|
(vii)
|
The
Redemption Amount payable for each Class F Share shall be equal
to the
proportion of the difference
between
|
|
|
(A)
|
the
fair market value of the Acquired Assets for which the Class F
Shares were
issued, as at the date of purchase by the corporation, as determined
by
the Board (in this paragraph and paragraph (viii) called the "Acquired
Assets Value"), and
|
|
|
(B)
|
the
aggregate of the values of any non-share consideration given or
assumed by
the corporation as partial consideration for the Acquired Assets
(in this
paragraph and paragraph (viii) called the "Non-Share Consideration
Value"),
|
that
one (l) bears to the total number of Class F Shares issued in exchange for
the
Acquired Assets and shall be fixed by the Board upon issuance of any Class
F
Shares.
-
6
-
|
|
(viii)
|
If
subsequent to the issuance of Class F Shares issued in exchange
for any
Acquired Assets it is determined by agreement between the Board
and
representatives of the Minister of National Revenue, or any other
competent authority, or otherwise to the satisfaction of the Board
that
the Acquired Assets Value should have been a greater or lesser
amount than
the amount determined upon issuance (such greater or lesser amount
shall
in this paragraph be called the "Adjusted Acquired Assets Value"),
or the
Non-Share Consideration Value should have been a greater or lesser
amount
than the amount determined upon issuance (such greater or lesser
amount
shall in this paragraph be called the "Adjusted Non-Share Consideration
Value"), the Redemption Amount payable for each Class F Share issued
in
exchange for those Acquired Assets and remaining outstanding at
that time
shall be equal to the proportion of the difference
between
|
|
|
(A)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(B)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class F Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the corporation at
or before
that time that one (1) bears to the total number of Class F Shares
issued
in exchange for those Acquired Assets and remaining outstanding
at that
time.
|
If
the corporation has purchased or redeemed all of the Class F Shares issued
in
exchange for any Acquired Assets at or before the time that the Adjusted
Acquired Assets Value or the Adjusted Non-Share Consideration Value is
determined and the agreement (the "Acquisition Agreement") pursuant to which
the
corporation originally acquired the Acquired Assets requires the issuance
of an
additional share upon such adjustment being made when all of the Class F
Shares
originally issued have been purchased or redeemed, then the corporation shall
issue one (1) additional Class F Share which shall be deemed to have been
issued
in exchange for those Acquired Assets, the Board shall fix the stated capital
of
that Class F Share in accordance with the Acquisition Agreement and the
Redemption Amount of that Class F Share shall be equal to the difference
between
-
7
-
|
|
(C)
|
the
Adjusted Acquired Assets Value, or if there has been no adjustment,
the
Acquired Assets Value, and
|
|
|
(D)
|
the
aggregate of:
|
|
|
(1)
|
the
Adjusted Non-Share Consideration Value, or if there has been no
adjustment, the Non-Share Consideration Value,
and
|
|
|
(2)
|
the
Redemption Amounts of all Class F Shares issued in exchange for
those
Acquired Assets and purchased or redeemed by the
corporation.
|
|
|
(ix)
|
If
the redemption of all the issued and outstanding Class C, Class
D, Class E
or Class F Shares in respect of which the corporation has received
Redemption Notices would cause the corporation to be in contravention
of
the Canada Business Corporations Act, the corporation shall at
that time
redeem, on a pro rata basis, disregarding fractions, only such
number of
Class C, Class D, Class E or Class F Shares as can be redeemed
without
causing such contravention and the corporation shall redeem the
balance of
the issued and outstanding Class C, Class D, Class E or Class F
Shares in
respect of which the corporation has received Redemption Notices
on a pro
rata basis, disregarding fractions, at such time as redemption
can be made
without causing the corporation to be in contravention of the Canada
Business Corporations Act.
|
|
|
(x)
|
Upon
giving notice as herein provided, the Board may redeem the whole
or any
part of the issued and outstanding Class C, Class D, Class E or
Class F
Shares upon payment,
|
|
|
(A)
|
for
each Class C, Class D or Class F Share to be redeemed, of an amount
equal
to the Redemption Amount together with all discretionary dividends
declared thereon but unpaid, and
|
|
|
(B)
|
for
each Class E Share to be redeemed, of an amount equal to the Redemption
Amount.
|
Unless
waived by the registered holder of the shares to be redeemed, at least ten
(l0)
days notice in writing of such redemption shall be given by mailing to the
registered holder of the Class C, Class D, Class E or Class F Shares to be
redeemed a notice specifying the date and place of redemption, which may
be a
chartered bank. If notice of any such redemption is given by the corporation
in
such manner and amounts sufficient to redeem the Class C, Class D, Class
E or
Class F Shares to be redeemed is deposited to a special account at any chartered
bank specified in such notice, the Class C, Class D, Class E or Class F Shares
in respect of which such deposit has been made shall be redeemed and the
holder
of such Class C, Class D, Class E or Class F Shares shall thereafter have
no
rights against the corporation in respect thereof except upon surrender of
the
certificates for such Class C, Class D, Class E or Class F Shares to receive
payment therefor, without interest, out of the monies so deposited.
-
8
-
|
|
(d)
|
Corporate
Purchase
|
Except
where the corporation redeems shares pursuant to subsection 3(c) hereof,
the
corporation shall not make any payment to purchase or otherwise acquire any
shares issued by it if there are reasonable grounds for the Board to believe
that:
|
|
(i)
|
The
corporation is, or would after the payment be, unable to pay its
liabilities as they become due, or
|
|
|
(ii)
|
The
realizable value of the corporation's assets would after the payment
be
less than the aggregate of
|
|
|
(A)
|
the
liabilities of the corporation,
|
|
|
(B)
|
the
Redemption Amounts of all issued and outstanding Class C and Class
F
Shares, and
|
|
|
(C)
|
the
stated capital of the Class A, Class B, Class D and Class E
Shares.
|
|
|
(e)
|
Liquidation
|
In
the event of the voluntary or involuntary 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:
|
|
(i)
|
The
holders of the Class C, Class D and Class F Shares shall be entitled
to
receive ratably at the same time, before any distribution of any
part of
the assets of the corporation among the holders of the other classes
of
shares, from the assets of the corporation, an amount equal to
the
Redemption Amount for each Class C, Class D or Class F Share held
by them,
together with any dividends declared thereon but unpaid, and no
more;
|
-
9
-
|
|
(ii)
|
After
distribution to the holders of the Class C, Class D and Class F
Shares,
but before any distribution of the assets of the corporation between
the
holders of the Class A and Class B Shares, the holders of the Class
E
Shares shall be entitled to receive ratably at the same time, from
the
assets of the corporation, an amount equal to the Redemption Amount
for
each Class E Share held by them, and no more;
and
|
|
|
(iii)
|
The
holders of the issued and outstanding Class A and Class B Shares
shall be
entitled to participate ratably at the same time in any further
distribution of the assets of the
corporation.
|
-
10
-
SHARE
TRANSFER RESTRICTIONS
So
long as the corporation is a private issuer as defined in securities law,
no
securities of the corporation, other than non-convertible debt securities,
shall
be transferred without the consent of the directors, expressed by a
resolution.
SCHEDULE
C
OTHER
PROVISIONS
|
1.
|
Lien
On Shares
|
The
corporation shall have a first and paramount lien on a share registered in
the
name of a shareholder or his legal representative, whether registered solely
or
jointly with any other person, for a debt of that shareholder to the
corporation, including an amount unpaid in respect of a share issued by the
corporation on the date it was incorporated under the Business Corporations
Act
(Alberta), whether the period for payment, fulfilment or discharge of that
debt
shall have actually arrived or not. The lien shall extend to all
dividends and distributions of capital declared or otherwise payable on such
shares.
|
2.
|
Appointment
of Directors
|
The
directors of the corporation may, between annual general meetings, appoint
one
(1) or more additional directors of the corporation to serve until the next
annual general meeting, provided that the number of additional directors
shall
not at any time exceed one-third (1/3) of the number of directors who held
office at the expiration of the last annual meeting of the
corporation.
|
3.
|
Borrowing
|
The
directors of the corporation may,
|
(a)
|
borrow
money on the credit of the
corporation,
|
|
(b)
|
issue,
reissue, sell or pledge debt obligations of the
corporation,
|
|
(c)
|
give
a guarantee on behalf of the corporation to secure performance
of an
obligation of any person, and
|
|
(d)
|
mortgage,
hypothecate, pledge or otherwise create a security interest in
all or any
property of the corporation, owned or subsequently acquired, to
secure any
obligation of the corporation.
|
|
4.
|
Meetings
of Shareholders
|
Meetings
of shareholders of the corporation may be held inside or outside
Canada.
