Exhibit 3.1
Articles of Amalgamation
Business Corporations Act
Section 185
1. Name of Amalgamated Corporation
SMART TECHNOLOGIES INC. |
2. The classes of shares, and any maximum number of shares that the corporation is authorized to issue:
SEE SCHEDULE “A” ATTACHED HERETO
3. Restrictions on share transfers (if any):
NONE
4. Number, or minimum and maximum number, of directors that the corporation may have:
MINIMUM OF THREE (3); MAXIMUM OF FIFTEEN (15)
5. If the corporation is restricted FROM carrying on a certain business, or TO carrying on a certain business, specify the restriction(s):
NONE
6. Other rules or provisions (if any):
SEE SCHEDULE “B” ATTACHED HERETO
7. Names of Amalgamating Corporations | Corporate Access Numbers
| |
SCHOOL AMALCO LTD. | 2015397579 | |
SMART TECHNOLOGIES INC. | 2013291691 |
Nancy L. Knowlton | /s/ Knowlton | |
Name of Person Authorizing (please print) | Signature | |
President & CEO | June 8, 2010 | |
Title (please print) | Date |
This information is being collected for the purposes of corporate registry records in accordance with the Business Corporations Act. Questions about the collection of this information can be directed to the Freedom of Information and Protection of Privacy Coordinator for Alberta Registries, Box 3140, Edmonton, Alberta T5J 2G7, (780) 427-7013
Schedule “A” attached to the Articles of Amalgamation of
SMART TECHNOLOGIES INC. (the “Corporation”)
SCHEDULE OF SHARE CAPITAL
The share capital of SMART Technologies Inc. (the “Corporation”) shall consist of: (i) 433,676,686 Class “A” Preferred Shares (the “Class A Preferred Shares”); (ii) an unlimited number of preferred shares, issuable in series (the “Preferred Shares”), (iii) an unlimited number of Class A Subordinate Voting Shares (the “Class A Subordinate Voting Shares”), and (iv) an unlimited number of Class B Shares (the “Class B Shares”), and the rights, privileges, conditions and restrictions attaching to each such class are as hereinafter set forth. Any reference herein to the Act is a reference to theBusiness Corporations Act (Alberta) as it now exists and as it may be amended from time to time and any reference herein to a section of the Act is a reference herein to a section of the Act as such section is presently numbered or as it may be renumbered from time to time.
Class A Preferred Shares
The rights, privileges, restrictions and conditions attaching to the Class A Preferred Shares as a class, shall be as follows:
(1) | Voting.The holders of the Class A Preferred Shares shall be entitled to receive notice of and to attend any meeting of the shareholders of the Corporation but shall not be entitled to vote at such meeting. |
(2) | Dividends. The holders of the Class A Preferred Shares shall rank ahead of the holders of all other shares of the Corporation as to dividends. The Class A Preferred Shares shall be entitled to a non-cumulative dividend at a rate of 8.5% of the stated capital per Class A Preferred Share (such stated capital, at the time of issuance of the Class A Preferred Shares, being an amount equal to Cdn$1.00 per Class A Preferred Share) per annum if, as and when declared by the board of directors of the Corporation, payable in such manner and at such times as the board of directors of the Corporation may from time to time determine. The Class A Preferred Shares shall not be entitled to participate any further with respect to dividends except to the extent hereinbefore provided. |
(3) | Priority. Upon the liquidation, dissolution or winding-up of the Corporation, holders of the Class A Preferred Shares shall be entitled to receive in priority to the holders of shares of any other class of the Corporation including, without limitation, the Preferred Shares, the Class A Subordinate Voting Shares and the Class B Shares, in respect of each Class A Preferred Share held an amount equal to the stated capital of that Class A Preferred Share (such stated capital, at the time of issuance of the Class A Preferred Shares, being an amount equal to Cdn$1.00 per Class A Preferred Share) together with any declared but unpaid dividends prior to any payment or distribution to any other class of shares of the Corporation. The Class A Preferred Shares shall not be entitled to share any further in the distribution of the property or assets of the Corporation except to the extent hereinbefore provided. The Class A Preferred Shares are not redeemable by the Corporation or at the holder’s request. |
(4) | Conversion. The Class A Preferred Shares may, at the option of the holder but subject to Section 4(b), be converted into Class A Subordinate Voting Shares or Class B Shares (in such proportion as the holder may elect), on the following basis: |
(a) | the number of Class B Shares or Class A Subordinate Voting Shares issuable upon conversion of one Class A Preferred Share shall be equal to the number obtained by dividing: |
(i) | an amount equal to the sum of (A) the stated capital of the Class A Preferred Shares divided by the number of Class A Preferred Shares outstanding plus (B) any declared but unpaid dividends on such share; |
by
(ii) | the fair market value, on the Conversion Date (as defined herein), of one Class A Subordinate Voting Share (which fair market value, in the case where conversion of a Class A Preferred Share occurs in connection with or in contemplation of an initial public offering by the Corporation of Class A Subordinate Voting Shares, shall be equal to the initial public offering price per Class A Subordinate Voting Share in respect of such initial public offering); |
(b) | the Class A Preferred Shares shall only be convertible into Class A Subordinate Voting Shares or Class B Shares on or after the date that the Corporation enters into a binding underwriting agreement in respect of the Corporation’s initial public offering of Class A Subordinate Voting Shares; |
(c) | the conversion privilege for which provision is made in this Section 4 shall be exercised by notice in writing given to the transfer agent of the Corporation, if one exists, and if not, to the Secretary of the Corporation, accompanied by a certificate or certificates representing the Class A Preferred Shares in respect of which the holder desires to exercise such conversion privilege. Such notice shall be signed by the holder of the Class A Preferred Shares in respect of which such conversion privilege is being exercised, or by the duly authorized representative thereof, and shall specify the number of Class B Shares and/or Class A Subordinate Voting Shares, elected by the holder, into which the holder is converting the Class A Preferred Shares. The holder shall also pay any governmental or other tax imposed in respect of such conversion; |
(d) | upon receipt of such notice and certificate or certificates, the Corporation shall, at its expense, effective as of the date of such receipt, issue or cause to be issued a certificate or certificates representing outstanding Class B Shares and Class A Subordinate Voting Shares, as applicable, upon the basis above prescribed to the holder of such Class A Preferred Shares. A holder of Class A Preferred Shares shall not convert less than all the Class A Preferred Shares held by such holder; |
(e) | the right of a registered holder of Class A Preferred Shares to convert such shares into Class B Shares and Class A Subordinate Voting Shares shall be deemed to |
– 3 –
have been exercised, and the registered holder of the Class A Preferred Shares to be converted (or any person or persons in whose name or names such registered holder shall have directed Class B Shares or Class A Subordinate Voting Shares to be registered) shall be deemed to have become a holder of Class B Shares or Class A Subordinate Voting Shares, as applicable, of record for all purposes, on the date (the “Conversion Date”) of surrender of the certificate(s) representing the Class A Preferred Shares to be converted accompanied by notice in writing as referred to above; and |
(f) | upon conversion of a Class A Preferred Share into Class B Shares or Class A Subordinate Voting Shares, such Class A Preferred Share shall be cancelled and retired and may not be reissued by the Corporation. |
Preferred Shares
The rights, privileges, restrictions and conditions attaching to the Preferred Shares as a class, shall be as follows:
(1) | Issuable in Series. The Preferred Shares shall be issuable in series and the board of directors of the Corporation shall have the right, from time to time, to fix the number of, and to determine the designation, rights, privileges, restrictions and conditions attaching to the Preferred Shares of each series including, without limitation to the foregoing: |
(a) | the rate, amount or method of calculation of any dividends, whether cumulative, non-cumulative or partially cumulative, and whether such rate, amount or method of calculation shall be subject to change or adjustment in the future, the currency or currencies of payment, date or dates and place or places of payment thereof and the date or dates from which any such dividends shall accrue and any preference of such dividends; |
(b) | any rights of redemption and purchase and the redemption or purchase prices and terms and conditions of any such rights; |
(c) | any rights of retraction vested in the holders of Preferred Shares of such series and the prices and terms and conditions of any such rights and whether any other rights of retraction may be vested in such holders in the future; |
(d) | any voting rights; |
(e) | any conversion rights into Class A Subordinate Voting Shares or into any other securities, whether or not issued or issuable by the Corporation or any other property whether or not owned by the Corporation at the time of issuance of such series, or any combination thereof; |
(f) | any rights to receive the remaining property of the Corporation upon dissolution, liquidation or winding-up and the amount and preference of any such rights; and |
(g) | any other provisions attaching to any such series of the Preferred Shares. |
– 4 –
(2) | Priority. The holders of any series of Preferred Shares shall be entitled to receive in priority to the holders of shares of any other class of the Corporation ranking subordinate to the Preferred Shares, including, without limitation, the Class A Subordinate Voting Shares and the Class B Shares, as and when declared by the Board of Directors of the Corporation, dividends, and amounts payable upon liquidation, dissolution or winding-up of the Corporation, in the amounts specified or determinable in accordance with the rights, privileges, restrictions and conditions attaching to the series of which such Preferred Shares form a part. |
Class A Subordinate Voting Shares and Class B Shares
The rights, privileges, restrictions and conditions attaching to the Class A Subordinate Voting Shares and the Class B Shares shall be as follows:
(1) | Defined Terms. For purposes hereof, the following terms shall have the following respective meanings: |
(a) | “Apax” means Apax US VII, L.P. and/or the various partnerships comprising the funds known as Apax Europe V (such partnerships being comprised of Apax Europe V - A, L.P., Apax Europe V - B, L.P., Apax Europe V C GmbH & Co. KG, Apax Europe V - D, L.P., Apax Europe V - E, L.P., Apax Europe V - F, C.V., Apax Europe V - G, C.V., Apax Europe V - 1, LP and Apax Europe V - 2, LP); |
(b) | “IFF” means IFF Holdings Inc., a corporation incorporated pursuant to the provisions of the Act; |
(c) | “IFF Permitted Holder” means any of: (A) IFF, (B) Nancy L. Knowlton, (C) David A. Martin, (D) any trust that has as its majority trustee or trustees, either or both of Nancy L. Knowlton and David A. Martin and of which all of the beneficiaries comprise any of Nancy L. Knowlton, David A. Martin, members of their families, close personal friends or a registered charity; and (E) any Person or Persons, 100% of the total outstanding Voting Shares of which are beneficially owned and controlled, directly or indirectly, by: (i) one or more of the Persons referred to in Clause (A), (B) or (C); or (ii) by a trust referred to in clause (D); |
(d) | “Intel” means Intel Corporation, a corporation incorporated pursuant to the laws of Delaware; |
(e) | “Permitted Holder” means: |
(i) | in the case of Class B Shares originally issued to IFF, any IFF Permitted Holder; |
(ii) | in the case of Class B Shares originally issued to School S.à r.l., any of: (A) Apax; and (B) any Person or Persons, 100% of the total outstanding Voting Shares of which are beneficially owned and controlled, directly or indirectly, by Apax and, for greater certainty, such Persons include, as at the date of original issuance of the Class B Shares, School S.à r.l.; and |
– 5 –
(iii) | in the case of Class B Shares originally issued to Intel, any of: (A) Intel; and (B) any Person or Persons, 100% of the total outstanding Voting Shares of which are beneficially owned and controlled, directly or indirectly, by Intel; |
(f) | “Person” means any individual, corporation, company (including any limited liability company), partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof; |
(g) | “Shares” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s share capital, partnership interests (whether general or limited), any other interest or participation that confers on a Person that right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person and any rights, warrants or options exchangeable for or convertible into such Shares; |
(h) | “Voting Shares” of a Person means the class or classes of Shares of such Person pursuant to which the holders thereof have the general voting power under ordinary circumstances to vote on the election of at least a majority of the board of directors, managers or trustees of such Person. |
(2) | Dividends; Rights on Liquidation, Dissolution, or Winding-up. The Class A Subordinate Voting Shares and the Class B Shares shall be subject to and subordinate to the rights, privileges, restrictions and conditions attaching to the Class A Preferred Shares and the Preferred Shares and shall rank pari passu, share for share, as to the right to receive dividends and to receive the remaining property and assets of the Corporation on liquidation, dissolution or winding-up. For the avoidance of doubt, holders of Class A Subordinate Voting Shares and Class B Shares shall, subject always to the rights of the holders of the Class A Preferred Shares and the Preferred Shares including, without limitation, the prior payment of all dividends payable on the Class A Preferred Shares as contemplated above, be entitled to receive: |
(a) | such dividends as the board of directors of the Corporation shall determine in an identical amount per share, at the same time and in the same form (whether in cash, in specie or otherwise) as if such shares were of one class only, and |
(b) | in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of assets of the Corporation among its shareholders for the purpose of winding up its affairs, the remaining property and assets of the Corporation, in an identical amount per share, at the same time and in the same form (whether in cash, in specie or otherwise) as if such shares were of one class only. |
– 6 –
(3) | Meetings and Voting. Each holder of Class B Shares and each holder of Class A Subordinate Voting Shares shall be entitled to receive notice of and to attend all meetings of shareholders of the Corporation, except meetings at which only holders of another particular class or series shall have the right to vote. At each such meeting, each Class B Share shall entitle the holder thereof to ten (10) votes and each Class A Subordinate Voting Share shall entitle the holder thereof to one (1) vote, voting together as a single class, except as otherwise provided herein or in the Act. |
(4) | Subdivision or Consolidation. No subdivision or consolidation of the Class A Subordinate Voting Shares or the Class B Shares shall be carried out unless, at the same time, the Class B Shares or the Class A Subordinate Voting Shares, as the case may be, are subdivided or consolidated in the same manner and, in such event, the rights, privileges, conditions and restrictions then attached to the Class A Subordinate Voting Shares and the Class B Shares shall also apply to the Class A Subordinate Voting Shares and the Class B Shares, respectively, as subdivided or consolidated. |
(5) | Conversion by Holders. The Class A Subordinate Voting Shares cannot be converted into any other class of shares. Each outstanding Class B Share may at any time, at the option of the holder, be converted into one Class A Subordinate Voting Share by the holder of Class B Shares (the “Converting Shareholder”) delivering written notice, signed by such Converting Shareholder or its authorized representative and specifying the number of Class B Shares being converted (the “Conversion Shares”) into Class A Subordinate Voting Shares, to the transfer agent of the Corporation, if one exists, and if not, to the Secretary of the Corporation, accompanied by a certificate or certificates representing the Conversion Shares. The Converting Shareholder shall also pay any governmental or other tax imposed in respect of the conversion of the Conversion Shares. Upon receipt of such notice and certificate or certificates, the Corporation shall, at its expense, effective as of the date of such receipt, promptly, and in any event within three (3) business days following the receipt of such notice and certificate or certificates, issue or cause to be issued a certificate or certificates representing a number of Class A Subordinate Voting Shares (the “Converted Shares”) equivalent to the number of Conversion Shares. If fewer than all the Class B Shares represented by any certificate are converted, the Converting Shareholder shall be entitled to receive a new certificate representing the Class B Shares represented by the original certificate that are not converted. The Conversion Shares convert into the Converted Shares, and the Converting Shareholder (or any person or persons in whose name or names such Converting Shareholder shall have directed the Converted Shares to be registered) becomes a holder of record for all purposes of the Converted Shares, on the date of surrender of the certificate(s) representing the Conversion Shares accompanied by notice in writing as referred to above. |
– 7 –
(6) | Automatic Conversion Upon Transfer to Persons that are not Permitted Holders. If a holder of Class B Shares sells, transfers, assigns or otherwise conveys (each, a “Transfer”) any or all of its Class B Shares (the “Transferred Shares”) to a Person that is not a Permitted Holder (the “Transferee”), the Transferred Shares shall automatically convert into Class A Subordinate Voting Shares immediately prior to the Transfer, such that the Transferee receives one fully paid and non-assessable Class A Subordinate Voting Share for each Transferred Share. |
(7) | Automatic Conversion Upon Certain Other Events. Class B Shares shall automatically convert into Class A Subordinate Voting Shares effective upon the first to occur of: |
(a) | with respect to all the issued and outstanding Class B Shares held by a Person, immediately upon the first to occur of: |
(i) | such Person ceasing to be a Permitted Holder; and |
(ii) | such time as the total number of Class B Shares beneficially owned and controlled by such holder together with any other Permitted Holder of such holder is less than 10% of the total number of outstanding Class B Shares and Class A Subordinate Voting Shares; and |
(b) | with respect to all the issued and outstanding Class B Shares, regardless of the holder thereof, immediately upon the first to occur of: |
(i) | such time as David A. Martin and Nancy L. Knowlton (together or individually) do not beneficially own and exercise control and direction over, directly or indirectly, more than 50% of the outstanding Voting Shares of IFF or any successor thereto; and |
(ii) | such time as neither David A. Martin nor Nancy L. Knowlton is an employee, officer or director of the Corporation. |
(8) | Certain Class Votes.So long as there are any Class B Shares outstanding, the Corporation shall not effect any of the following unless prior thereto, the holders of at least two-thirds of the outstanding Class B Shares (and 100% of the outstanding Class B Shares in the case of (d) and (e) below), voting separately as a class, have consented thereto: |
(a) | any proposed amalgamation involving the Corporation in respect of which the Act requires that the approval of the shareholders of the Corporation be obtained; |
(b) | any proposed plan of arrangement pursuant to section 193 of the Act involving the Corporation in respect of which the Act, or any order issued by the Court of Queen’s Bench of Alberta pursuant to section 193 of the Act, requires that the approval of the shareholders of the Corporation be obtained; |
– 8 –
(c) | any proposed sale, lease or exchange of all or substantially all the property of the Corporation in respect of which the Act requires that the approval of the shareholders of the Corporation be obtained; |
(d) | the issuance or creation of Shares of the Corporation of any class or series that entitle the holders thereof to more than one vote per Share; or |
(e) | any issuance of Class B Shares or securities convertible or exchangeable for Class B Shares, including without limitation, any options, warrants or rights to acquire Class B Shares. |
(9) | Single Class.Except as otherwise provided herein, Class A Subordinate Voting Shares and Class B Shares are equal in all respects and shall be treated as shares of a single class for all purposes under the Act. The Class A Subordinate Voting Shares shall not vote separately as a class on any matter except as expressly provided in the Act. The Class B Shares shall vote separately as a class as provided in Section 8 and as expressly provided in the Act. |
(10) | Cancellation of Class B Shares. Upon conversion of a Class B Share into a Class A Subordinate Voting Share, such Class B Share shall be cancelled and retired and may not be reissued by the Corporation. |
(11) | No Further Issuance of Class B Shares.If at any time all the Class B Shares outstanding are converted into Class A Subordinate Voting Shares, purchased for cancellation or otherwise cease to be outstanding, no further Class B Shares shall be issued by the Corporation. |
– 9 –
Schedule “B” attached to the Articles of Amalgamation of
SMART TECHNOLOGIES INC. (the “Corporation”)
OTHER RULES OR PROVISIONS
1. | The directors of the Corporation may, between annual general meetings of the shareholders of the Corporation, appoint one or more additional directors of the Corporation to serve until the next annual general meeting of shareholders of the Corporation, but the number of additional directors shall not at any time exceed 1/3 of the number of directors who held office at the expiration of the last annual general meeting of the shareholders of the Corporation. |
2. | Meetings of the shareholders of the Corporation may be held in any place selected by the directors of the Corporation including, without limitation, any place outside of the Province of Alberta. |