EX-1.30 8 d120783dex130.htm EX-1.30 EX-1.30

Exhibit 1.30

 

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SCHEDULE 1

The Corporation is authorized to issue (i) an unlimited number of each of the following classes of shares without par value: Class A shares (the “Class A Shares”), Class B shares (the “Class B Shares”), Class C shares (the “Class C Shares”) and Class D shares (the “Class D Shares”). The rights and restrictions attaching to the Class A Shares, the Class B Shares, the Class C Shares and the Class D Shares are as follows:

 

1. VOTING RIGHTS

 

1.1. Voting Shares. The holders of Class A Shares, Class B Shares and Class C Shares (collectively, the “Voting Shares”) shall be entitled to receive notice of, attend and vote at, on the basis of one vote per share, all meetings of shareholders, with the exception of meetings at which only holders of specified classes of shares are entitled to vote.

 

1.2. Single Class. Subject to the provisions of the Canada Business Corporations Act (the “Act”), the holders of the Voting Shares shall vote together as a single class on all matters submitted to a vote that requires the consent of shareholders.

 

1.3. Class D Shares. The holders of Class D Shares shall not be entitled to receive notice of, to attend, or to vote at meetings of shareholders, except as specifically provided for in the Act.

 

2. RIGHT TO DIVIDENDS

 

2.1. The holders of Class A Shares, Class B Shares, Class C Shares and Class D Shares (collectively, the “Shares”) shall be entitled to participate in the property, profits and surplus assets of the Corporation and, for that purpose, to receive dividends, as and when declared by the board of directors of the Corporation out of funds legally available therefor, on a pari passu basis. Any declaration or payment of dividends to the holders of Shares shall be made rateably, based on the number of Shares held by each of them.

 

2.2. No dividends shall be declared or paid with respect to any of the Class A Shares, Class B Shares, Class C Shares or Class D Shares unless such dividends are also declared or paid in respect of each of the other classes of Shares on a pari passu basis as provided for in Section 2.1.

 

3. DISTRIBUTION OF ASSETS

 

3.1. Class C Preferred Amount. The holders of Class C Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class B Shares and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $100 (the “Class C Preferred Amount”). The Class C Preferred Amount shall be distributed among the holders of Class C Shares rateably, based on the number of Class C Shares held by each of them.

 

  

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3.2. Class B Preferred Amount. Once the payment of the Class C Preferred Amount to the holders of Class C Shares is fully satisfied, the holders of Class B Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class C Shares (except for the Class C Preferred Amount) and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $150 (the “Class B Preferred Amount”). The Class B Preferred Amount shall be distributed among the holders of Class B Shares rateably, based on the number of Class B Shares held by each of them.

 

3.3. Remaining Property. Once the payments of the Class C Preferred Amount and of the Class B Preferred Amount to, respectively, the holders of Class C Shares and the holders of Class B Shares are fully satisfied, the remaining property of Corporation shall be distributed, upon liquidation or dissolution of the Corporation, rateably among the holders of Shares, based on the number of Shares held by each of them.

 

4. CONVERSION

 

4.1. Conversion upon a Qualified IPO or upon a Class A Majority Consent. Immediately prior to or contemporaneously with the closing of a Qualified IPO, all but not less than all of the Class B Shares, Class C Shares and Class D Shares (collectively, the “Convertible Shares”) will automatically be converted into such number of fully paid and non-assessable Class A Shares as is determined in accordance with Sections 4.4 and 4.5. In addition, upon the decision of a Class A Majority Consent to that effect, all but not less than all of the Convertible Shares will automatically be converted into the number of fully paid and non-assessable Class A Shares determined in accordance with Sections 4.4 and 4.5.

 

4.2.

Mechanics of Conversion. Upon the conversion of any Convertible Shares into Class A Shares under Section 4.1, all the then outstanding Convertible Shares shall be automatically converted into Class A Shares without any further action by the holders thereof and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided, however, that all holders of Convertible Shares being converted shall be given written notice of the occurrence of an event specified in Section 4.1 including the date such event occurred. Upon the occurrence of such automatic conversion, each holder must surrender the share certificate or certificates formerly representing that holder’s Convertible Shares at the principal office of the Corporation or the office of any transfer agent for the Class A Shares. Upon receipt by the Corporation of the share certificate or certificates, the Corporation will issue and deliver to such holder, promptly at the office and in the name shown on the surrendered share certificate or certificates, a share certificate or certificates for the number of Class A Shares into which the Convertible Shares are converted, together with cash in respect of (i) any fractional Class A Shares issuable upon such conversion as contemplated in Section 4.3, and, if applicable, and (ii) any declared but unpaid dividends thereon. The Corporation is not required to issue share certificates evidencing the Class A Shares issuable upon the automatic conversion of Convertible Shares until share certificates formerly evidencing the Convertible Shares

 

  

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  are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or such transfer agent that such share certificates have been lost, stolen or destroyed, and executes and delivers an agreement to indemnify the Corporation from any loss incurred by the Corporation in connection with the loss, theft or destruction.

 

4.3. Fractional Shares. No fractional Class A Shares shall be issued upon the conversion of Convertible Shares. All Class A Shares (including fractions) issuable upon conversion of more than one Convertible Share by its holder shall be aggregated for the purpose of determining whether the conversion results in the issuance of any fractional Class A Share. If such is the case, the Corporation shall, instead of issuing any fractional Class A Share, pay an amount in cash equal to the product of such fraction multiplied by the Class A Share’s fair market value on the date of conversion as determined in good faith by the board of directors of the Corporation.

 

4.4. Conversion Calculation for Convertible Shares. Each Convertible Share is convertible, subject to the terms and conditions of these Articles, for the number of fully paid and non-assessable Class A Shares determined by the conversion ratio (the “Conversion Ratio”) applicable to it. Immediately after the issuance of a Convertible Share, its initial Conversion Ratio will be one, and will subsequently be adjusted as provided for herein (and otherwise to reflect any equitable adjustments required further to stock splits and similar capital reorganizations).

 

4.5. Adjustment for Amalgamation or Reorganization. In case of any amalgamation, reorganization, capital reorganization, reclassification or recapitalization of the share capital of the Corporation, change of control or merger, arrangement or other transaction involving the Corporation and any other entity, each Convertible Share shall thereafter be convertible into (or shall be converted into a security which shall be convertible into or exchangeable for) the kind and amount of shares, or other securities, or property that its holder would have received as holder of Class A Shares if such Convertible Share had been converted immediately prior to such event. In such case, appropriate adjustments (as determined in good faith by the board of directors of the Corporation), including adjustments to the Conversion Ratio, as applicable, shall be made in the application of the provisions of this Section 4.5 with respect to the rights thereafter of the holders of Convertible Shares, in relation to any shares, securities or other property thereafter deliverable upon the conversion of the Convertible Shares. Notwithstanding the foregoing, in the event that adjustments contemplated in this Section 4.5 with respect to a class of the Voting Shares differ from adjustments proposed to be made with respect to other classes of Voting Shares, such adjustments shall, in addition to the prior approval of the board of directors of the Corporation, require the approval of a Special Majority (which Special Majority shall exclude the holders of the Class A Shares at the time the adjustment is being considered).

 

4.6.

Certificate of Adjustment. In each case of an adjustment to the Conversion Ratio for any Convertible Shares, or to the number of Class A Shares or other securities issuable upon the conversion of Convertible Shares, the Corporation, at its expense, shall compute such adjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment. Within five (5) days of the effective date of such adjustment the Corporation shall mail such certificate, by first class mail, postage prepaid, to each registered holder of Convertible Shares at the holder’s address as shown in the Corporation’s books or deliver it in any other manner and at such other

 

  

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  address as indicated to the Corporation in writing by such holder. The certificate shall also show in reasonable detail the facts and calculations upon which such adjustment is based.

 

4.7. For the purposes hereof:

 

  4.7.1. “Class A Majority Consent” means a consent in writing executed by such number of shareholders of record of Class A Shares holding more than 50% of the issued and outstanding Class A Shares at any relevant time;

 

  4.7.2. Qualified IPO” means an underwritten initial public offering or offerings of voting and participating Shares of the share capital of the Corporation (for the purposes of this Section, the “Common Shares”) (i) pursuant to a prospectus under the Securities Act (Quebec), as amended, or similar document filed under other applicable securities laws in Canada or the United States of America, covering the offer and sale to the public of the Common Shares, which are to be listed on a recognized stock exchange such as the Toronto Stock Exchange or the New York Stock Exchange or are quoted on the NASDAQ or any combination thereof, generating net proceeds to the Corporation of at least $70 million, with a pre-money valuation of the Corporation of at least $350 million, or (ii) approved by a Special Majority.

 

5. OTHER PROVISIONS

 

5.1. Separate Class Votes. Holders of Shares of any class shall not be entitled to vote separately as a class, and to exercise dissent rights under section 190 of the Act, upon a proposal to amend the articles (whether by articles of amendment or articles of amalgamation) of the Corporation to: (i) increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the Shares of such class, (ii) create a new class or series of Shares equal or superior to the Shares of such class, and (iii) effect an exchange, reclassification or cancellation of the Shares of such class, unless the Voting Shares are not treated proportionally and in the same manner pursuant to such exchange, reclassification or cancellation.

 

5.2. Restrictions on Subdivision and Consolidation. Neither the Class A Shares, the Class B Shares, the Class C Shares nor the Class D Shares shall be subdivided, consolidated, reclassified or otherwise changed unless, contemporaneously therewith, all other classes of Shares are subdivided, consolidated, reclassified or otherwise changed (each, a “Change”) in the same proportion and in the same manner, except to the extent that the Class D Shares may remain non-voting following any such Change, (b) the Class B Preferred Amount and the Class C Preferred Amount may be maintained following such Change.

 

  

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SCHEDULE A

The Corporation is authorized to issue an unlimited number of the following Class E Preferred Shares:

(E) CLASS E PREFERRED SHARES: The number of Class E Preferred Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class E Preferred Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class E Preferred Shares. Class E Preferred Shares shall have priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class E Preferred Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class E Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation, in priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class E Preferred Shares shall be entitled to repayment of the amount paid for the Class E Preferred Shares into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares, in priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares.

(4) No Voting Right. Subject to the provisions of the Canada Business Corporations Act or as otherwise expressly provided, the holders of Class E Preferred Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class E Preferred Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class E Preferred Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class E Preferred Shares were issued.

 

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The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class E Preferred Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class E Preferred Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class E Preferred Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class E Preferred Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class E Preferred Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36 of the Canada Business Corporations Act, each holder of Class E Preferred Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class E Preferred Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class E Preferred Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares; and

(ii) the fair market value of any property, other than a Class E Preferred Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class E Preferred Shares, the Corporation and each subscriber of Class E Preferred Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class E Preferred Shares are issued.

 

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(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class E Preferred Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class E Preferred Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class E Preferred Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class E Preferred Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class E Preferred Shares, in connection with a redemption, retraction or purchase of Class E Preferred Shares, a sum for the Class E Preferred Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class E Preferred Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to Section 34 of the Canada Business Corporations Act, the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class E Preferred Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

 

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