EXHIBIT 1.3
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Industry Canada Industrie Canada
Canada Business Loi canadienne sur les
Corporation Act societes par actions
FORM 7 FORMULE 7
RESTATED ARTICLES OF STATUTS CONSTITUTIFS
INCORPORATION MIS A JOUR
(SECTION 180) (ARTICLE 180)
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1. Name of corporation Denomination de la societe
EXFO Electro-Optical Engineering Inc. EXFO Ingenierie Electro-Optique inc.
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2. The place in Canada where the Lieu au Canada ou doit etre situe
registered office is to be le siege social
situated
Quebec City Metropolitan Area Region metropolitaine de Quebec
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3. The classes and any maximum Categories et tout nombre maximal
number of shares that the d'actions que la societe est
corporation is authorized to issue autorisee a emettre
Schedule A attached hereto is incorporated L'annexe A ci-jointe fait partie
herein by reference as if herein set forth integrante du present formulaire.
at length
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4. Restrictions, if any, on share Restrictions sur le transfert
transfers des actions, s'il y a lieu
None Aucune
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5. Number (or minimum and maximum Nombre (ou nombre minimal et
number) of directors maximal) d'administrateurs
Schedule B attached hereto is incorporated L'annexe B ci-jointe fait partie
herein by reference as if herein set forth integrante du present formulaire.
at length
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6. Restrictions, if any, on business Limites imposees a l'activite
the corporation may carry on commerciale de la societe, s'il
y a lieu
None Aucune
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7. Other provisions, if any Autres dispositions, s'il y a lieu
Schedule C attached hereto is incorporated L'annexe C ci-jointe fait partie
herein by reference as if herein set forth integrante du present formulaire.
at length
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The foregoing restated articles of Cette mise a jour des statuts
incorporation correctly set out, without constitutifs demontre exactement,
substantive change, the corresponding sans changement substantiel, les
provisions of the articles of incorporation dispositions correspondantes des
as amended and supersede the original statuts constitutifs modifies qui
articles of incorporation. remplacent les statuts constitutifs
origineaux.
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Signature Date FOR DEPARTMENT USE ONLY -
D-J M Y-A A L'USAGE DU MINISTERE SEULEMENT
/s/ Kimberley Ann Okell
Kimberley Ann Okell 29-06-00
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Title-Titre Filed-Deposee
Secretary
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<PAGE>
SCHEDULE A
ANNEXE A
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DESCRIPTION OF SHARE CAPITAL
The Corporation is authorized to issue an unlimited number of Subordinate Voting
Shares, an unlimited number of Multiple Voting shares and an unlimited number of
Preferred Shares issuable in series of which 800,000 Preferred Shares Series I
are authorized for issuance, which shares shall carry the following rights,
privileges, conditions and restrictions:
1. SUBORDINATE VOTING SHARES AND MULTIPLE VOTING SHARES
The Subordinate Voting Shares and the Multiple Voting Shares
(collectively the "Equity Shares") include the following rights,
privileges, conditions and restrictions:
1.1 DIVIDENDS
Each Subordinate Voting Share and each Multiple Voting Shares
confers, subject to the rights of the holders of Preferred
Shares, the right to receive such dividends as the Board of
Directors of the Corporation may determine, but in an
identical amount, at the same time and in the same form
(whether in cash, kind or otherwise) as if such shares were of
one and the same class.
1.2 SUBDIVISION OR CONSOLIDATION
No subdivision or consolidation of the Subordinate Voting
Shares or the Multiple Voting Shares may be made unless,
simultaneously, the Multiple Voting Shares or the Subordinate
Voting Shares, as the case may be, are subdivided in the same
manner and, in such case, the rights, privileges, conditions
and restrictions then attached to the Subordinate Voting
Shares and the Multiple Voting Shares will also be attached to
the shares so subdivided or consolidated.
1.3 LIQUIDATION
In case of liquidation or dissolution of the Corporation or
any other distribution of its assets among its shareholders
for the purpose of winding up its business, whether or not in
its own right, the holders of Subordinate Voting Shares and
the holders of Multiple Voting Shares are entitled, subject to
the rights of the holders of Preferred Shares, to share
equally amongst themselves, on a share-for-share basis, the
remaining property and assets of the Corporation available for
distribution to its shareholders, without preference or
distinction.
1.4 VOTE
The holders of Subordinate Voting Shares and the holders of
Multiple Voting Shares have the right to receive notices of
any meeting of the shareholders of the Corporation and to
attend any such meeting and vote thereat as a single class in
respect of any matter on which the shareholders of the
Corporation are required to vote, except in the case of a
meeting at which only the holders of shares of a
<PAGE>
particular class or series are entitled to vote separately
pursuant to the CANADA BUSINESS CORPORATION ACT (the "Act") or
the articles of the Corporation. The Subordinate Voting Shares
confer 1 vote per share and the Multiple Voting Shares confer
10 votes per share.
1.5 MULTIPLE VOTING SHARE CONVERSION PRIVILEGE
Each outstanding Multiple Voting Share may, at all times and
at the option of the holder, be converted into one Subordinate
Voting Share, in accordance with the following terms and
conditions:
1.5.1 the conversion privilege set out in this subsection
1.5 shall be exercised by means of a written notice
given to the transfer agent of the Corporation and
accompanied by the certificate or certificates
representing the Multiple Voting Shares in respect of
which the holder wishes to avail itself of such
privilege. Such notice shall be signed by the holder
of the Multiple Voting Shares in respect of which
such privilege is exercised or by its duly authorized
representative and shall indicate the number of
Multiple Voting Shares the holder wishes to convert.
The holder shall also pay all government taxes or
other duties or income taxes that may be imposed in
respect of such conversion. The conversion of the
Multiple Voting Shares into Subordinate Voting Shares
shall take effect as of the receipt by the transfer
agent of the Corporation of the notice of conversion
and the certificate or certificates representing the
Multiple Voting Shares in respect of which the holder
wishes to avail itself of the said conversion
privilege; and
1.5.2 upon receipt of such notice and the certificate or
certificates, the Corporation will issue or cause to
be issued, with effect on the date of such receipt, a
certificate or certificates representing the
outstanding Subordinate Voting Shares, in accordance
with the terms and conditions describes hereinabove,
in favour of the holder of such Multiple Voting
Shares, which may not from such time exercise its
rights as a holder of Multiple Voting Shares. If less
than the aggregate of the Multiple Voting Shares
represented by a certificate is to be converted, the
holder shall be entitled to receive a new certificate
for the Multiple Voting Shares represented by the
original certificate and not converted.
1.6 RANK
Unless otherwise indicated in subsections 1.4 and 1.5, each
Subordinate Voting Share and each Multiple Voting Share confer
the same rights, are equal among themselves in all respects
and will be treated by the Corporation as if they were shares
of a single class.
1.7 ADDITIONAL ISSUANCE OF MULTIPLE VOTING SHARES
Save for Multiple Voting Shares issued pursuant to subsection
1.2, no Multiple Voting Share shall be issued unless such
issuance has been approved by a special resolution of the
holders of Subordinate Voting Shares at a special meeting of
such holders convened for such purpose.
<PAGE>
2. PREFERRED SHARES
The Preferred Shares carry the following rights, privileges, conditions
and restrictions:
2.1 DIRECTORS' AUTHORITY TO ISSUE IN ONE OR MORE SERIES
The Board of Directors of the Corporation may issue the
Preferred Shares at any time and from time to time in one or
more series. Before the first shares of a particular series
are issued, the Board of Directors of the Corporation shall
fix the number of shares in such series and shall determine,
subject to the limitations set out in these Articles of
Amendment, the designation, rights, privileges, conditions and
restrictions to be attached to the shares of such series
including, without limiting or restricting the generality of
the foregoing, the rate or rates, amount or method or methods
of calculation of preferential 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, the date and place of payment thereof, and the date
or dates from which such preferential dividends shall accrue,
the redemption price and terms and conditions of redemption,
if any, the rights of retraction, if any, and the prices and
other terms and conditions of any rights of retraction and
whether any additional rights of retraction may be provided to
such holders in the future, the consideration and the terms
and conditions of any purchase for cancellation, if any, and
the terms and conditions of any share purchase plan or sinking
fund with respect thereto, the conversion price and the terms
and conditions of conversion, if any. Before the issue of the
first shares of a series, the Board of Directors of the
Corporation shall send to the director under the Act, Articles
of Amendment containing a description of such series including
the designation, rights, privileges, conditions and
restrictions determined by the Board of Directors of the
Corporation.
2.2 RANKING OF PREFERRED SHARES
The Preferred Shares of each series shall rank at par with the
Preferred Shares of every other series with respect to
priority in the payment of dividends, return of capital and in
the distribution of assets of the Corporation in the event of
the liquidation or dissolution of the Corporation or any other
distribution of the assets of the Corporation among its
shareholders for the purpose of winding-up its affairs,
whether voluntary or involuntary. The Preferred Shares shall
have priority over the Multiple Voting Shares and the
Subordinate Voting Shares of the Corporation, with respect to
priority in the payment of dividends, return of capital and
the distribution of assets in the event of the liquidation or
dissolution of the Corporation, or any other distribution of
the assets of the Corporation among its shareholders for the
purpose of winding-up its affairs, whether voluntary or
involuntary. If any cumulative dividends or amounts payable on
return of capital in respect of a series of shares are not
paid in full, the shares of all series of Preferred Shares
participate rateably in respect of accumulated dividends and
return of capital.
<PAGE>
2.3 PURCHASE FOR CANCELLATION
Subject to the provisions of the Act and the provisions
attached to any particular series of Preferred Shares,
Preferred Shares of any series, if so provided in the rights,
privileges, conditions and restrictions attached to such
series, may be purchased for cancellation or made subject to
redemption at the option of the Corporation or the holder
thereof, at such time and at such prices and upon such other
terms and conditions as may be specified in the rights,
privileges, conditions and restrictions attaching to the
Preferred Shares of such series.
2.4 VOTING RIGHTS
Unless the Articles of Amendment otherwise provide with
respect to the creation and issue of a particular series of
Preferred Shares, the holders of Preferred Shares shall not be
entitled to receive any notice of or attend any meeting of
shareholders of the Corporation and shall not be entitled to
vote at any such meeting; provided that at any meeting of
shareholders at which, notwithstanding the foregoing, the
holders of Preferred Shares are required or entitled by law to
vote separately as a class, each holder of Preferred Shares of
any series thereof shall be entitled to cast, in respect of
each such Preferred Share held, that number of votes which is
equal to the quotient obtained by dividing the stated capital
account maintained for all the outstanding Preferred Shares of
such series by the number of such outstanding Preferred
Shares; provided that in respect of any such consideration
denominated in a currency other than Canadian, the Board of
Directors of the Corporation shall, for the purpose of this
Section 2.4, determine the appropriate conversion rate of such
currency to Canadian currency in effect on the date of issue
and, based on such rate, the Canadian dollar equivalent of
such consideration; and provided further that when such
quotient is a fraction or a whole number plus a fraction there
shall be no right to vote in respect of such fraction.
Any meeting of shareholders at which the holders of the
Preferred Shares are required or entitled by law to vote
separately as a class or a series shall, unless the Articles
of the Corporation otherwise provide, be called and conducted
in accordance with the by-laws of the Corporation; provided
that no amendment to or repeal of the provisions of such
by-laws made after the date of the first issue of any of the
Preferred Shares by the Corporation shall be applicable to the
calling and conduct of meetings of holders of the Preferred
Shares voting separately as a class or as a series unless such
amendment or repeal has been theretofore approved by ordinary
resolution adopted by the holders of the Preferred Shares
voting separately as a class.
3. PREFERRED SHARES SERIES 1
The first series of Preferred Shares shall consist of 800,000 shares
and shall be designated as Preferred Shares Series 1 (the "Preferred
Shares Series 1"). The rights, privileges, conditions and restrictions
attaching to the Preferred Shares Series 1 are as follows:
<PAGE>
3.1 DEFINITIONS
In these share conditions, the following words and phrases
shall have the following meanings:
3.1.1 "Aggregate Redemption Price" means the product
obtained by multiplying the number of outstanding
Preferred Shares Series 1 by the Redemption Price.
3.1.2 "Conversion Price" means the dollar amount per
Subordinate Voting Share in Canadian dollars
determined by reference to the stock market on which
the greatest volume of trading of the Subordinate
Voting Shares occurred during the 10 days of stock
market activity preceding November 30, 2000, as
follows:
(i) by averaging the closing prices of the
Subordinate Voting Shares for such 10 days
of stock market activity preceding November
30, 2000; or
(ii) if the Subordinate Voting Shares have been
traded fewer than 5 days of the 10 days of
stock market activity preceding November 30,
2000, by averaging the following prices
determined for each of those 10 days:
a) the closing price or, if the closing
price is not published, the average
between the highest and the lowest
prices, for each day that there has
been trading; and
b) the average of the bid and ask
prices for each day on which there
was no trading.
3.1.3 "Higher Rank" or " Equal Rank" and similar
expressions, whether used individually or
collectively, shall mean the order of priority of the
shares of different classes or series as regards the
payment of dividends or the distribution of assets in
the event of the winding-up, dissolution or
abandonment of the business of the Corporation,
whether or not voluntary, or in the event of any
other repayment of capital or distribution of the
assets of the Corporation among its shareholders for
purposes of winding up its affairs.
3.1.4 "Redemption Price" means, for each Preferred Share
Series 1, $1.00.
3.2 VOTING RIGHTS
Subject to the Act, the holders of the Preferred Shares Series
1 shall not, as such, be entitled to receive notice of or to
attend any meeting of the shareholders of the Corporation or
to vote at any such meeting.
<PAGE>
3.3 DIVIDENDS
The holders of the Preferred Shares Series 1 shall not be
entitled to receive, any dividend nor be entitled to
participate any further in the distribution or payment of
profits or assets of the Corporation.
3.4 PURCHASE
Subject to the Act, the Corporation shall have the right at
its option at any time and from time to time, pursuant to
tenders received upon request therefor addressed to all
holders of Preferred Shares Series 1, to purchase the whole or
any part of the Preferred Shares Series 1 at the lowest price
for which, in the opinion of the Board of Directors, such
shares are obtainable, but not exceeding a sum equal to the
Redemption Price for each issued and outstanding Preferred
Shares Series 1, provided that if, in response to such
invitation for tenders, 2 or more shareholders submit tenders
at the same price and if such tenders are accepted by the
Corporation, in whole or in part, then unless the Corporation
accepts all such tenders in whole, the Corporation shall
accept such tenders in proportion as nearly as may be to the
number of shares offered in each such tender. From and after
the date of such purchase, all Preferred Shares Series 1 so
purchased shall be cancelled.
3.5 MANDATORY REDEMPTION
Subject to the Act, the Corporation shall have the right to
redeem, on November 30, 2000 (the "Redemption Date"), all
outstanding Preferred Shares Series 1 on payment to their
holders of their Aggregate Redemption Price. The Corporation
shall give to each registered holder of Preferred Shares
Series 1 a written notice of redemption (the "Notice of
Redemption") or send such notice by mail to the last known
address of the holder. The Notice of Redemption shall inform
the holders of Preferred Shares Series 1 of the redemption of
their Preferred Shares Series 1 on the Redemption Date and
shall be given no less than 5 days prior to the Redemption
Date. Any holder may waive receipt of a Notice of Redemption.
On the Redemption Date, the Preferred Shares Series 1 redeemed
shall be cancelled automatically and their holders shall have
the right, upon delivery to the Corporation at its principal
office during its usual business hours of the certificate or
certificates representing the Preferred Shares Series 1 so
redeemed duly endorsed, to the payment of the Aggregate
Redemption Price of their Preferred Shares Series 1 (less any
taxes which must be deducted or withheld in respect thereof).
Payment shall be made by cheque. At any time after the Notice
of Redemption has been given, the Corporation shall be
entitled to deposit the amount of the Aggregate Redemption
Price of the Preferred Shares Series 1 (less any taxes which
must be deducted or withheld in respect thereof) in one or
more chartered banks or trust companies within Canada who
shall have been named in the Notice of Redemption. Such
deposits shall be made in one or more special trust accounts
for the benefit of holders of Preferred Shares Series 1
redeemed, and the amounts owing to them shall be paid by such
banks or trust companies upon remittance of the certificate or
certificates representing the Preferred Shares Series 1 so
redeemed duly endorsed. Once these deposits have been made,
the Preferred Shares Series 1 shall be deemed to have been
redeemed on the Redemption Date. After the Corporation has
effected a deposit in the
<PAGE>
aforementioned manner with respect to any of the Preferred
Shares Series 1, as of the Redemption Date, holders of such
shares shall not have any further rights as shareholders with
respect to such shares and their rights shall be limited to
the collection of the portion of the deposited amounts
applicable to such shares, without interest (less any taxes
which must be deducted or withheld in respect of said amount);
any accrued interest on such deposits shall belong to the
Corporation.
3.6 CONVERSION AT OPTION OF CORPORATION
On November 30, 2000 (the "Conversion Date"), the Corporation
shall, if it has elected not to redeem the Preferred Shares
Series 1, pursuant to Section 3.5 above, convert all
outstanding Preferred Shares Series 1 into Subordinate Voting
Shares. The number of Subordinate Voting Shares to which is
entitled a holder of Preferred Shares Series 1 shall be equal
to the result obtained by dividing the Aggregate Redemption
Price of the Preferred Shares Series 1 held by such holder by
the Conversion Price. No fractional Subordinate Voting Shares
shall be issued upon the conversion of the Preferred Shares
Series 1. In lieu of any fractional shares to which the holder
would otherwise be entitled, the Corporation shall pay a cash
amount equal to such fraction multiplied by the then effective
Conversion Price. On the Conversion Date, the Preferred Shares
Series 1 converted shall be cancelled automatically and their
holders shall have the right to receive, upon delivery to the
Corporation at its principal office during its usual business
hours of the certificate or certificates representing the
Preferred Shares Series 1 so converted duly endorsed, a
certificate or certificates representing the number of
Subordinate Voting Shares resulting from the conversion of the
Preferred Shares Series 1 together with the cash amount
payable as a result of conversion into fractional Subordinate
Voting Shares (less any taxes which must be deducted or
withheld in respect thereof). Payment of cash amounts shall be
made by cheque. The Corporation shall be entitled to deposit
the certificates representing the number of Subordinate Voting
Shares resulting from the conversion of the Preferred Shares
Series 1 together with the cash amounts payable as a result of
conversion into fractional Subordinate Voting Shares (less any
taxes which must be deducted or withheld in respect thereof)
in one or more trust companies within Canada who shall have
been named in a written notice sent by mail by the Corporation
to the last known address of each registered holder of
Preferred Shares Series 1. Such deposits shall be made in one
or more special trust accounts for the benefit of holders of
Preferred Shares Series 1 converted, and the certificates
representing the Subordinate Voting Shares to which they are
entitled and the cash amounts owing to them shall be remitted
by such trust companies upon remittance of the certificate or
certificates representing the Preferred Shares Series 1 so
converted duly endorsed. Once these deposits have been made,
the Preferred Shares Series 1 shall be deemed to have been
converted on the Conversion Date. After the Corporation has
effected a deposit in the aforementioned manner with respect
to any of the Preferred Shares Series 1, as of the Conversion
Date, holders of such shares shall not have any further rights
as holders of Preferred Shares Series 1 with respect to such
shares; any accrued interest on the cash amount deposits shall
belong to the Corporation.
<PAGE>
3.7 DISTRIBUTION RIGHTS
In the event of the liquidation, dissolution or winding-up of
the Corporation, whether voluntary or involuntary, the holders
of the Preferred Shares Series 1 shall be entitled to receive,
before any distribution or payment of any part of the assets
of the Corporation among the holders of Multiple Voting Shares
and Subordinate Voting Shares, an amount equal to the
Redemption Price of their shares and no more.
3.8 VETO
No class of shares of an Equal Rank or of a Superior Rank with
the Preferred Shares Series 1 may be created, and the
provisions relating to the Preferred Shares Series 1 or
relating to other classes of shares may not be modified so as
to confer on such shares rights or privileges that are of
Equal Rank or of Superior Rank to those attached to the
Preferred Shares Series 1, unless such creation or
modification has been approved by a special resolution of the
holders of Preferred Shares Series 1 at a special meeting of
such holders convened for such purpose.
3.9 INTERPRETATION
3.9.1 All amounts set forth in these presents are expressed
in Canadian dollars and all amounts required to be
converted into Canadian dollars shall be deemed to be
converted into or from Canadian dollars at the noon
buying rate of the FEDERAL RESERVE BANK OF NEW YORK
on the date as of which such conversion is
determined.
3.9.2 Notwithstanding any provision to the contrary set
forth in these presents, the payment of any sum of
money may be made by electronic transfer or by any
other means which the Board of Directors may approve,
instead of being made by cheque. In such an event,
the payment of sums of money to holders of Preferred
Shares Series 1 shall be deemed to constitute payment
and shall release the Corporation from all its
obligations with respect to the payment of such sums,
up to the amount represented thereby, unless the
payment is not honoured by the Corporation.
<PAGE>
SCHEDULE B
ANNEXE B
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NUMBER (OR MINIMUM AND MAXIMUM NUMBER OF DIRECTORS)
The minimum number of directors shall be 3, and the maximum number of directors
shall be 12. Moreover, directors shall be authorized to appoint one or more
directors (in addition to the number of directors elected at the last annual
meeting of shareholders) who shall hold office for a term expiring not later
than the close of the next annual meeting of shareholders, but the total number
of directors so appointed may not exceed one third of the number of directors
elected at the previous annual meeting of shareholders.
<PAGE>
SCHEDULE C
ANNEXE C
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<TABLE>
<CAPTION>
OTHER PROVISIONS AUTRES DISPOSITIONS
<S> <C>
1. BORROWING POWER 1. POUVOIR D'EMPRUNT
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The directors may, when they deem expedient, Les administrateurs peuvent, lorsqu'ils le jugent
by way of ordinary resolution and without opportun, par voie de resolution ordinaire et
having to obtain authorization of the sans avoir a obtenir l'autorisation des
shareholders: actionnaires:
1.1 borrow money on the credit of the 1.1 contracter des emprunts, compte tenu
Corporation; du credit de la societe;
1.2 issue bonds or other securities of the 1.2 emettre des obligations ou autres valeurs
Corporation and give them in guarantee de la societe et les donner en garantie ou
or sell them for such prices and such les vendre pour les prix et sommes juges
sums as may be deemed expedient; convenables;
1.3 subject to Section 44 of the CANADA 1.3 sous reserve de l'article 44 de la LOI
BUSINESS CORPORATION ACT (R.S.C., 1985, CANADIENNE SUR LES SOCIETES PAR ACTIONS
c. C-44), give a guarantee on behalf of (L.R.C. (1985), ch. C-44), garantir, au
the Corporation to secure performance of nom de la societe, l'execution d'une
an obligation of any person; obligation a la charge d'une autre
personne;
1.4 mortgage, hypothecate, pledge or 1.4 grever d'une surete, notamment par
otherwise create a security interest in all hypotheque, tout ou partie des biens,
or any property of the Corporation, presents ou futurs, de la societe, afin de
owned or subsequently acquired, to garantir ses obligations; et
secure any obligation of the Corporation;
and
1.5 delegate one or any of the foregoing 1.5 deleguer un ou plusieurs des pouvoirs
powers to a director, a committee of susmentionnes a un administrateur, a un
directors or an officer of the Corporation. comite d'administrateurs ou a un dirigeant
de la societe.
</TABLE>
