UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ x ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period ended June 30, 2005
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
for the transition period from ___to___
Commission File Number: 1-12043
OPPENHEIMER HOLDINGS INC.
(Exact name of registrant as specified in its charter)
Ontario, Canada
98-0080034
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)
P.O. Box 2015, Suite 1110
20 Eglinton Avenue West
Toronto, Ontario, Canada M4R 1K8
(Address of principal executive offices)
(Zip Code)
416-322-1515
(Registrants telephone number, including area code)
None
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [ X ] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ]
The number of shares of the Companys Class A non-voting shares and Class B voting shares (being the only classes of common stock of the Company) outstanding on July 31, 2005 was 12,840,741 and 99,680 shares, respectively.
OPPENHEIMER HOLDINGS INC.
INDEX
Page No. |
||
PART I |
FINANCIAL INFORMATION |
|
Item 1. |
Financial Statements (unaudited) |
|
Condensed Consolidated Balance Sheets as of June 30, 2005 and December 31, 2004 |
1 |
|
Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2005 and 2004 |
3 |
|
Condensed Consolidated Statements of Cash Flow for the three and six months ended June 30, 2005 and 2004 |
4 |
|
Condensed Consolidated Statements of Changes in Shareholders Equity for the three and six months ended June 30, 2005 and 2004 |
6 |
|
Notes to Condensed Consolidated Financial Statements |
7 |
|
Item 2. |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
14 |
Item 3. |
Quantitative and Qualitative Disclosures About Market Risk |
24 |
Item 4. |
Controls and Procedures |
24 |
PART II |
OTHER INFORMATION |
|
Item 1. |
Legal Proceedings |
26 |
Item 2. |
Unregistered Sales of Equity Securities and Use of Proceeds |
26 |
Item 3. |
Defaults Upon Senior Securities |
26 |
Item 4. |
Submission of Matters to a Vote of Security Holders |
26 |
Item 5. |
Other Information |
28 |
Item 6. |
Exhibits |
28 |
SIGNATURES |
29 |
|
Certifications |
PART 1
FINANCIAL INFORMATION
Item. 1 Financial Statements
OPPENHEIMER HOLDINGS INC. |
CONDENSED CONSOLIDATED BALANCE SHEETS (unaudited) |
June 30, |
December 31, |
||
|
2005 |
2004 |
|
Expressed in thousands of dollars |
|||
ASSETS |
|||
Cash and cash equivalents |
$40,651 |
$33,390 |
|
Restricted deposits |
20,330 |
15,291 |
|
Deposits with clearing organizations |
13,440 |
17,006 |
|
Receivable from brokers and clearing organizations |
536,197 |
474,523 |
|
Receivable from customers |
1,139,085 |
864,304 |
|
Securities owned including amounts pledged, |
|||
at market value |
77,260 |
78,445 |
|
Notes receivable |
60,865 |
70,070 |
|
Other assets |
56,061 |
56,606 |
|
Property, plant and equipment, net of accumulated |
|||
depreciation of $46,379; $41,906 in 2004 |
20,810 |
23,545 |
|
Intangible assets, net of amortization |
34,763 |
35,130 |
|
Goodwill |
137,889 |
137,889 |
|
$2,137,351 |
$1,806,199 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
1
OPPENHEIMER HOLDINGS INC. |
CONDENSED CONSOLIDATED BALANCE SHEETS (unaudited) |
June 30, |
December 31, |
||
|
2005 |
2004 |
|
Expressed in thousands of dollars |
|||
LIABILITIES AND SHAREHOLDERS' EQUITY |
|||
Liabilities |
|||
Drafts payable |
$44,258 |
$59,239 |
|
Bank call loans |
262,900 |
2,373 |
|
Payable to brokers and clearing organizations |
788,537 |
671,953 |
|
Payable to customers |
371,652 |
383,700 |
|
Securities sold, but not yet purchased, at market value |
10,713 |
10,536 |
|
Accrued compensation |
60,969 |
73,086 |
|
Accounts payable and other liabilities |
71,143 |
66,658 |
|
Income taxes payable |
17 |
2,399 |
|
Bank loans payable |
19,583 |
24,643 |
|
Long term debt |
28,495 |
35,378 |
|
Exchangeable debentures |
160,822 |
160,822 |
|
Deferred income tax, net |
13,052 |
8,528 |
|
1,832,141 |
1,499,315 |
||
Shareholders' equity |
|||
Share capital |
|||
12,943,541 Class A non-voting shares |
|||
(2004 13,296,876 shares) |
41,636 |
49,504 |
|
99,680 Class B voting shares |
133 |
133 |
|
41,769 |
49,637 |
||
Contributed capital |
8,810 |
8,780 |
|
Retained earnings |
254,631 |
248,467 |
|
305,210 |
306,884 |
||
$2,137,351 |
$1,806,199 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
2
OPPENHEIMER HOLDINGS INC. |
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited) |
Three months ended |
Six months ended |
|||
|
June 30, 2005 |
June 30, 2004 |
June 30, 2005 |
June 30, 2004 |
(Expressed in thousands of dollars, except per share amounts) |
||||
REVENUE: |
||||
Commissions |
$75,251 |
$78,360 |
$156,300 |
$170,590 |
Principal transactions, net |
25,852 |
23,342 |
46,238 |
60,054 |
Interest |
17,599 |
10,607 |
32,143 |
21,159 |
Underwriting fees |
14,512 |
9,863 |
26,812 |
24,606 |
Advisory fees |
28,898 |
27,302 |
55,749 |
52,480 |
Arbitration award |
- |
- |
- |
2,700 |
Other |
3,817 |
5,269 |
5,933 |
8,922 |
165,929 |
154,743 |
323,175 |
340,511 |
|
EXPENSES: |
||||
Compensation and related expenses |
101,355 |
104,605 |
205,311 |
223,966 |
Clearing and exchange fees |
4,348 |
3,822 |
8,616 |
7,770 |
Communications and technology |
12,949 |
13,639 |
25,555 |
29,342 |
Occupancy and equipment costs |
11,683 |
12,627 |
23,595 |
26,016 |
Interest |
8,870 |
4,375 |
15,611 |
8,564 |
Other |
18,181 |
13,199 |
29,453 |
25,915 |
157,386 |
152,267 |
308,141 |
321,573 |
|
Profit before income taxes |
8,543 |
2,476 |
15,034 |
18,938 |
Income tax provision |
3,748 |
1,039 |
6,474 |
7,697 |
NET PROFIT FOR THE PERIOD |
$4,795 |
$1,437 |
$8,560 |
$11,241 |
Earnings per share: |
||||
Basic |
$0.36 |
$0.11 |
$0.64 |
$0.84 |
Diluted |
$0.29 |
$0.11 |
$0.53 |
$0.64 |
Dividends declared per share |
$0.09 |
$0.09 |
$0.18 |
$0.18 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
3
4
The accompanying notes are an integral part of these condensed consolidated financial statements.
5
OPPENHEIMER HOLDINGS INC. |
||||
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS EQUITY (unaudited) |
||||
Three Months ended June 30, |
Six Months ended June 30, |
|||
2005 |
2004 |
2005 |
2004 |
|
Expressed in thousands of dollars |
||||
Share capital |
||||
Balance at beginning of period |
$47,286 |
$51,857 |
$49,637 |
$41,653 |
Issue of Class A non-voting shares |
- |
120 |
2,629 |
10,324 |
Repurchase of Class A non-voting shares for cancellation |
(5,517) |
- |
(10,497) |
- |
Balance at end of period |
$41,769 |
$51,977 |
$41,769 |
$51,977 |
Contributed capital |
||||
Balance at beginning of period |
$8,810 |
$8,641 |
$8,780 |
$5,966 |
Tax benefit from employee stock options exercised |
- |
33 |
30 |
2,708 |
Balance at end of period |
$8,810 |
$8,674 |
$8,810 |
$8,674 |
Retained earnings |
||||
Balance at beginning of period |
$251,018 |
$240,821 |
$248,467 |
$232,217 |
Net profit for the period |
4,795 |
1,437 |
8,560 |
11,241 |
Dividends |
(1,182) |
(1,211) |
(2,396) |
(2,411) |
Balance at end of period |
$254,631 |
$241,047 |
$254,631 |
$241,047 |
TOTAL SHAREHOLDERS' EQUITY |
$305,210 |
$301,698 |
$305,210 |
$301,698 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
6
OPPENHEIMER HOLDINGS INC.
Notes to Condensed Consolidated Financial Statements (Unaudited)
1. Summary of significant accounting policies
The condensed consolidated financial statements include the accounts of Oppenheimer Holdings Inc. (OPY) and its subsidiaries (together, the Company). The principal subsidiaries of OPY are Oppenheimer & Co. Inc. (Oppenheimer), a registered broker-dealer in securities, and Oppenheimer Asset Management Inc. (OAM), a registered investment advisor under the Investment Advisors Act of 1940. Oppenheimer operates as Fahnestock & Co. Inc. in Latin America. Oppenheimer owns Freedom Investments, Inc. (Freedom), a registered broker dealer in securities, which operates its BUYandHOLD division, offering online discount brokerage and dollar-based investing services. The Company engages in a broad range of activities in the securities industry, including retail securities brokerage, institutional sales and trading, investment banking (both corporate and public finance), research, market-making, and investment advisory and asset management services.
The Companys condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP). These accounting principles are set out in the notes to the Companys consolidated financial statements included in its Annual Report on Form 10-K/A for the year ended December 31, 2004. Disclosures reflected in these condensed consolidated financial statements comply in all material respects with those required pursuant to the rules and regulations of the United States Securities and Exchange Commission (SEC) with respect to quarterly financial reporting.
The financial statements include all adjustments, which in the opinion of management are normal and recurring and necessary for a fair statement of the results of operations, financial position and cash flows for the interim periods presented. The nature of the Companys business is such that the results of operations for the interim periods are not necessarily indicative of the results to be expected for a full year.
Certain prior period expenses in the statement of operations have been reclassified to conform to the current year presentation.
These condensed consolidated financial statements are presented in U.S. dollars.
2. Recent Accounting Pronouncements
In December 2004, the Financial Accounting Standards Board issued a revision to SFAS No. 123, Accounting for Stock-Based Compensation, SFAS No. 123-R, Share-Based Payment. SFAS No. 123-R focuses primarily on transactions in which an entity exchanges its equity instruments for employee services and generally establishes standards for accounting for transactions in which an entity obtains goods or services in share-based transactions. The implementation date for SFAS No. 123-R has recently been extended. Consequently, the Company will commence expensing stock-based compensation awards on January 1, 2006 using the modified prospective method. The Company anticipates that the impact of the adoption of SFAS No. 123-R may be material to its statement of operations.
7
3. Stock based compensation
The following presents the pro forma income and earnings per share impact, using a fair-value-based calculation, of the Companys stock-based compensation. Amounts are expressed in thousands of dollars except per share amounts.
Three months ended June 30, |
Six months ended June 30, |
|||
2005 |
2004 |
2005 |
2004 |
|
Net profit, as reported |
$4,795 |
$1,437 |
$8,560 |
$11,241 |
Stock-based employee compensation expense included in reported net income |
- |
- |
- |
- |
Additional compensation expense |
381 |
393 |
763 |
781 |
Pro forma net profit |
$4,414 |
$1,044 |
$7,797 |
$10,460 |
Basic profit per share, as reported |
$0.36 |
$0.11 |
$0.64 |
$0.84 |
Diluted profit per share, as reported |
$0.29 |
$0.11 |
$0.53 |
$0.64 |
Pro forma basic profit per share |
$0.33 |
$0.08 |
$0.59 |
$0.78 |
Pro forma diluted profit per share |
$0.27 |
$0.08 |
$0.49 |
$0.60 |
For purposes of the pro forma presentation, the Company determined fair value using the Black-Scholes option pricing model. The weighted average fair value of options granted during the three and six months ended June 30, 2005 and 2004, respectively, was nil and $85,000, respectively, and $771,000 and $2,016,000, respectively. The fair value is being amortized over five years on an after-tax basis for purposes of pro forma presentation. Stock options generally expire five years after the date of grant or three months after the date of retirement, if earlier. Stock options generally vest over a five year period with 0% vesting in year one, 25% of the shares becoming exercisable on each of the next three anniversaries of the grant date and the balance vesting in the last six months of the option life. The vesting period is at the discretion of the Compensation and Stock Option Committee and is determined at the time of grant.
4. Earnings per share
Earnings per share was computed by dividing net profit by the weighted average number of Class A non-voting shares (Class A Shares) and Class B voting shares (Class B Shares) outstanding. Diluted earnings per share includes the weighted average Class A and Class B Shares outstanding and the effects of exchangeable debentures using the if converted method and Class A Share options using the treasury stock method.
8
Earnings per share has been calculated as follows:
Three Months ended June 30, |
Six Months ended June 30, |
|||
2005 |
2004 |
2005 |
2004 |
|
Basic weighted average number of shares outstanding |
13,261,798 |
13,477,599 |
13,279,114 |
13,355,943 |
Net effect, if converted method (1) |
6,932,000 |
- |
6,932,000 |
6,932,000 |
Net effect, treasury method (2) |
- |
216,408 |
1,999 |
273,501 |
Diluted common shares |
20,193,798 |
13,694,007 |
20,213,113 |
20,561,444 |
Net profit for the period, as reported |
$4,795,000 |
$1,437,000 |
$8,560,000 |
$11,241,000 |
Effect of dilutive exchangeable debentures |
1,061,000 |
- |
2,110,000 |
1,886,000 |
Net profit, available to shareholders and assumed conversions |
$5,856,000 |
$1,437,000 |
$10,670,000 |
$13,127,000 |
Basic earnings per share |
$0.36 |
$0.11 |
$0.64 |
$0.84 |
Diluted earnings per share |
$0.29 |
$0.11 |
$0.53 |
$0.64 |
(1)
As part of the consideration for the 2003 acquisition of the Oppenheimer divisions, the Company issued First and Second Variable Rate Exchangeable Debentures which are exchangeable for approximately 6.9 million Class A Shares of the Company at the rate of $23.20 per share (approximately 35% of the outstanding Class A Shares, if exchanged). The net effect of the if converted method is anti-dilutive for the three months ended June 30, 2004.
(2)
The net effect of the treasury method is anti-dilutive for the three months ended June 30, 2005. The diluted EPS computations do not include the antidilutive effect of the following options:
Three Months ended June 30, |
Six Months ended June 30, |
|||
2005 |
2004 |
2005 |
2004 |
|
Number of antidilutive options, end of period |
1,746,475 |
506,000 |
1,736,475 |
506,000 |
5. Securities owned and securities sold, but not yet purchased (at fair market value)
Amounts are expressed in thousands of dollars.
June 30, 2005 |
December 31, 2004 |
||
Securities owned consist of: |
|||
Corporate equities |
$28,679 |
$37,111 |
|
Corporate and sovereign debt |
17,791 |
14,326 |
|
U.S. government and agency obligations |
7,828 |
8,638 |
|
State and municipal government obligations |
20,406 |
14,954 |
|
Money market funds and other
|
2,556 |
3,416 |
|
$77,260 |
$78,445 |
9
June 30, 2005 |
December 31, 2004 |
||
Securities sold, but not yet purchased consist of: |
|||
Corporate equities |
$3,951 |
$5,321 |
|
Corporate debt
|
4,088 |
3,266 |
|
U.S. government and agency obligations |
1,807 |
649 |
|
State and municipal government obligations |
765 |
1,268 |
|
Other |
102 |
32 |
|
$10,713 |
$10,536 |
Securities owned and securities sold, but not yet purchased, consist of trading securities at fair market values. Included in securities owned at June 30, 2005 are securities with fair market values of approximately $13,681,000 ($15,097,000 at December 31, 2004), which are related to deferred compensation liabilities to former employees of CIBC World Markets. At June 30, 2005, the Company had pledged securities owned of approximately $1,798,000 ($3,333,000 at December 31, 2004) as collateral to counterparties for stock loan transactions, which can be sold or repledged.
6. Long term debt and exchangeable debentures
Amounts are expressed in thousands of dollars.
(a) Bank loans are subject to a credit arrangement with Canadian Imperial Bank of Commerce (CIBC) dated January 2, 2003 in the aggregate amount of $50 million dollars, and bear interest at the U.S. base rate plus 2% per annum. The minimum annual principal repayment under the agreement is approximately $10,119,000. The principal repayments are tied to certain employee notes receivable issued during 2003 and repayments above the minimum level are triggered by the termination of employment of these employees. In accordance with the credit arrangement, the Company has provided certain covenants to CIBC with respect to the maintenance of minimum debt/equity ratios and net
10
capital of Oppenheimer. As at June 30, 2005, the Company was in compliance with the covenants. For the three and six months ended June 30, 2005 and 2004, respectively, interest expense on bank loans was $428,000 and $581,000, respectively, and $878,000 and $1,106,000, respectively.
(b) The Zero Coupon Promissory Note is repayable as related employee notes receivable, which are assigned to Oppenheimer, become due or are forgiven. Such payments are to be made notwithstanding whether any of the employees loans default. The estimated current portion due on the Zero Coupon Promissory Note is $10,155,000.
(c) The First and Second Variable Rate Exchangeable Debentures are exchangeable for approximately 6.9 million Class A Shares of the Company at the rate of $23.20 per share. The annual interest rate is 3% in 2003, 4% in 2004 - 2006, and 5% in 2007 through maturity. The First and Second Variable Rate Exchangeable Debentures, which mature on January 2, 2013, contain a retraction clause, which may be activated by the holder for a period of 120 days at the end of year seven. Interest is payable semi-annually in June and December. For the three and six months ended June 30, 2005 and 2004, respectively, interest expense on the First and Second Variable Rate Exchangeable Debentures was $1,829,000 and $1,829,000, respectively, and $3,637,000 and $3,659,000, respectively. Under the interest method, the effective annual interest rate over the life of the First and Second Variable Rate Exchangeable Debentures is 4.5%.
7. Net Capital Requirements
The Company's major subsidiaries, Oppenheimer and Freedom, are subject to the uniform net capital requirements of the SEC under Rule 15c3-1 (the Rule). Oppenheimer computes its net capital requirements under the alternative method provided for in the Rule which requires that Oppenheimer maintain net capital equal to two percent of aggregate customer-related debit items, as defined in SEC Rule 15c3-3. At June 30, 2005, the net capital of Oppenheimer as calculated under the Rule was $200,685,000 or 14.27% of Oppenheimer's aggregate debit items. This was $172,557,000 in excess of the minimum required net capital. Freedom computes its net capital requirement under the basic method provided for in the Rule, which requires that Freedom maintain net capital equal to the greater of $250,000 or 6 2/3% of aggregate indebtedness, as defined. At June 30, 2005, Freedom had net capital of $6,248,000, which was $5,998,000 in excess of the $250,000 required to be maintained at that date.
8. Securities lending activities
Securities borrowed and securities loaned are carried at the amounts of cash collateral advanced or received.
Securities borrowed transactions require the Company to deposit cash or other collateral with the lender. The Company receives cash or collateral in an amount generally in excess of the market value of securities loaned.
The Company monitors the market value of securities borrowed and loaned on a daily basis and may require counterparties to deposit additional collateral or return collateral pledged, when appropriate.
11
Included in receivable from brokers and clearing organizations are deposits paid for securities borrowed of $452,877,000 (at December 31, 2004 - $415,288,000). Included in payable to brokers and clearing organizations are deposits received for securities loaned of $ 762,013,000(at December 31, 2004 - $641,393,000).
9. Financial instruments with off-balance sheet risk and concentration of credit risk
In the normal course of business, the Company's securities activities involve execution, settlement and financing of various securities transactions. These activities may expose the Company to risk in the event customers, other brokers and dealers, banks, depositories or clearing organizations are unable to fulfill their contractual obligations.
The Company is exposed to off-balance sheet risk of loss on unsettled transactions in the event customers and other counterparties are unable to fulfill their contractual obligations. It is the Company's policy to periodically review, as necessary, the credit standing of each counterparty with which it conducts business.
Securities sold, but not yet purchased represent obligations of the Company to deliver the specified security at the contracted price and thereby create a liability to purchase the security in the market at prevailing prices. Accordingly, these transactions result in off-balance sheet risk, as the Company's ultimate obligation to satisfy the sale of securities sold, but not yet purchased may exceed the amount recognized on the balance sheet. Securities positions are monitored on a daily basis.
The Company's customer financing and securities lending activities require the Company to pledge customer securities as collateral for various financing sources such as bank loans and securities lending. At June 30, 2005, the Company had approximately $1.7 billion of customer securities under customer margin loans that are available to be pledged, of which the Company has repledged approximately $454,896,000 under securities loan agreements. In addition, the Company has received collateral of approximately $436,371,000 under securities borrow agreements, of which the Company has repledged approximately $305,155,000 as collateral under securities loan agreements. Included in receivable from brokers and clearing organizations are receivables from five major U.S. broker-dealers totaling $269,328,000.
The Company monitors the market value of collateral held and the market value of securities receivable from others. It is the Company's policy to request and obtain additional collateral when exposure to loss exists. In the event the counterparty is unable to meet its contractual obligation to return the securities, the Company may be exposed to off-balance sheet risk of acquiring securities at prevailing market prices.
At June 30, 2005, the Company had outstanding commitments to buy and sell of $983,000 and $606,000, respectively, of mortgage-backed securities on a when issued basis. These commitments have off-balance sheet risks similar to those described above.
The Company has a clearing arrangement with Pershing LLC to clear certain transactions in foreign securities. Accordingly, the Company has credit exposures with this clearing broker. The clearing broker can rehypothecate the securities held on behalf of the Company. The clearing
12
broker has the right to charge the Company for losses that result from a client's failure to fulfill its contractual obligations. As the right to charge the Company has no maximum amount and applies to all trades executed through the clearing broker, the Company believes there is no maximum amount assignable to this right. At June 30, 2005, the Company had recorded no liabilities with regard to this right. The Company's policy is to monitor the credit standing of this clearing broker, all counterparties and all clients with which it conducts business.
10. Related Party Transactions
The Company does not make loans to its officers and directors except under normal commercial terms pursuant to client margin account agreements. These loans are fully collateralized by such employee-owned securities.
11. Segment Information
The table below presents information about the reported operating income of the Company for the periods noted. The Companys segments are described in the Companys Annual Report on Form 10-K/A for the year ended December 31, 2004. The Companys business is conducted primarily in the United States. Asset information by reportable segment is not reported, since the Company does not produce such information for internal use.
Three months ended June 30, |
Six months ended June 30, |
|||
In thousands of dollars |
2005 |
2004 |
2005 |
2004 |
Revenue: |
||||
Private Client |
$121,358 |
$116,209 |
$245,812 |
$266,956 |
Capital Markets |
29,314 |
24,224 |
46,819 |
45,429 |
Asset Management |
14,316 |
12,898 |
28,690 |
25,210 |
Other |
941 |
1,412 |
1,854 |
2,916 |
Total |
$165,929 |
$154,743 |
$323,175 |
$340,511 |
Operating Income: |
||||
Private Client |
$2,554 |
$(4,578) |
$9,908 |
$11,921 |
Capital Markets |
4,909 |
5,701 |
5,468 |
9,994 |
Asset Management |
940 |
489 |
1,811 |
(226) |
Other |
140 |
864 |
(2,153) |
(2,751) |
Total |
$8,543 |
$2,476 |
$15,034 |
$18,938 |
13
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
The Companys financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. Reference is also made to the Companys consolidated financial statements and notes thereto found in its Annual Report on Form 10-K/A for the year ended December 31, 2004.
The Company engages in a broad range of activities in the securities industry, including retail securities brokerage, institutional sales and trading, investment banking (both corporate and public finance), research, market-making, and investment advisory and asset management services. The Company provides its services from 81 offices in 21 states located throughout the United States. The Company conducts business from 2 offices in South America through local broker-dealers. Client assets entrusted to the Company as at June 30, 2005 totaled approximately $49.7 billion. The Company provides investment advisory services through Oppenheimer Asset Management Inc. and Fahnestock Asset Management, operating as a division of Oppenheimer. The Company provides trust services and products through Oppenheimer Trust Company. The Company provides discount brokerage services through Freedom Investments Inc. and through BUYandHOLD, a division of Freedom. At June 30, 2005, client assets under management by the asset management groups totaled $10.9 billion. At June 30, 2005, the Company employed approximately 2,787 people, of whom [1,420] were financial consultants.
Critical Accounting Policies
The Companys accounting policies are essential to understanding and interpreting the financial results reported in the condensed consolidated financial statements. The significant accounting policies used in the preparation of the Companys condensed consolidated financial statements are summarized in note 1 to those statements. Certain of those policies are considered to be particularly important to the presentation of the Companys financial results because they require management to make difficult, complex or subjective judgments, often as a result of matters that are inherently uncertain.
During the three and six months ended June 30, 2005, there were no material changes to matters discussed under the heading Critical Accounting Policies in Part II, Item 7 of the Companys Annual Report on Form 10-K/A for the year ended December 31, 2004.
Business Environment
The securities industry is directly affected by general economic and market conditions, including fluctuations in volume and price levels of securities and changes in interest rates, inflation, political events, investor participation levels, legal and regulatory, accounting, tax and compliance requirements and competition, all of which have an impact on commissions, firm trading, fees from accounts under investment management, and investment income as well as on liquidity. Substantial fluctuations can occur in revenues and net income due to these and other factors.
14
The second quarter of 2005 remained challenging, although economic conditions continued to improve. U.S. consumer confidence strengthened, as although investors remained concerned about record high oil prices, higher inflation, rising interest rates, and the twin U.S. deficits (trade and budget). Iraq and unresolved global issues continue to put a damper on investor confidence. Revenue improved in the second quarter of 2005 compared to the same period of 2004 in the Companys principal trading activities, underwriting activities and asset management business. The Companys expense burden in 2005 increased compared to the same period of 2004 due primarily to higher interest costs, as well as the increased provision for legal and regulatory reserves.
The Company has experienced a material increase in expenses relating to regulatory matters as it responds to the requirements of its various industry regulators, the Sarbanes-Oxley Act, the Patriot Act, and the industry-wide mutual funds inquiry, all of which impose significant costs, as well as the expenditure of time and effort for the organization. These costs are anticipated to continue throughout the current year and into the future.
Interest rate changes also impact the Companys fixed income businesses as well as its cost of borrowed funds. Interest rates were higher in the three and six months ended June 30, 2005 compared to the same periods in 2004. Investor interest in fixed income securities is driven by attractiveness of published rates, the direction of rates and economic expectations. Volatility in bond prices also impacts opportunities for profits in fixed income proprietary trading. Management constantly monitors its exposure to interest rate fluctuations to mitigate risk of loss in volatile environments.
The Companys focus continues to be the expansion and building of its business, through investment in experienced professionals throughout the Company and continued improvement in its technology platform.
Regulatory Environment
The brokerage business is subject to regulation by the United States Securities and Exchange Commission (SEC), the New York Stock Exchange (NYSE), the National Association of Securities Dealers (NASD) and various state securities regulators. Events in recent years surrounding corporate accounting and other activities leading to investor losses resulted in the enactment of the Sarbanes-Oxley Act and have caused increased regulation of public companies. New regulations and new interpretations and enforcement of existing regulations are creating increased costs of compliance and increased investment in systems and procedures to comply with these more complex and onerous requirements. Increasingly, the various states are imposing their own regulations that make the uniformity of regulation a thing of the past, and make compliance more difficult and more expensive to monitor. This regulatory environment has resulted in increased costs of compliance with rules and regulations , in particular, the impact of the rules and requirements that were created by the passage of the Patriot Act, and the anti-money laundering regulations (AML) that are related thereto. The Companys increased exposure to regulatory actions could potentially lead to the elimination of, or material changes to, certain lines of business. The expectation is that the increased costs of compliance in todays regulatory environment are not temporary.
15
Mutual Fund Inquiry
Since the third quarter of 2003, Oppenheimer has been responding to the SEC, the NY State Attorney General, the NYSE and other regulators as part of an industry-wide review of market timing, late trading and other activities involving mutual funds. The Company has answered several document requests and subpoenas and there have been on-the-record interviews of Company personnel. The inquiries have centered on Oppenheimers activities as a broker/dealer and as a clearing firm. The Company has conducted its own investigation and is continuing to cooperate with the investigating entities.
The Company believes that a few of its former financial advisors, working from a single branch office, have engaged in activities that are the subject of the SEC's inquiry largely during the period before the Company acquired the U.S. Private Client Division of CIBC World Markets on January 3, 2003. The former employees and two persons, who had a supervisory role with respect to such financial advisors, who continue to be employed by the Company, are also being investigated by and have received Wells Notices from the SEC; the Company has received no such Notice. There is no evidence that either the Company or its employees were engaged in "late trading". The Company continues to closely monitor its mutual fund activities and the activities of its employees.
Other Regulatory Matters
The Company has pending various regulatory matters with respect to its operations up to and including 2004. Most of these matters revolve around the period when the Company was transferring the business and client accounts of various acquisitions it has made to a common systems platform between November 2001 and August 2003. During that period of time, the Company absorbed approximately 35 branch offices and 1,000 financial advisors, and transitioned more than 250,000 client accounts from four separate and distinct companies, each of which utilized a different technology platform. The Company's business doubled during this period. As previously reported, certain of the Companys operations were impacted beginning in June 2003 and the Company experienced client service issues, which were subsequently corrected. The new businesses undertaken by the Company and the effect on the Companys operations for the period described above has resulted in investigations by the SEC, the NYSE, and the NASD. The Company expects that one or more of these investigations will result in enforcement actions against the Company.
On May 3, 2005 the NASD filed a complaint against Oppenheimer for matters arising prior to 2004 with respect to the timeliness and accuracy of its municipal bond reporting, the adequacy of its email retention, the adequacy of its supervisory systems and procedures, as well as the timeliness of its response to certain NASD requests for information. The Company believes that it has made and continues to make every effort to cooperate with the NASD and all other regulators. The Company worked diligently to provide tens of thousands of documents and all requested information and will continue to work with the NASD toward a speedy resolution of this matter.
Oppenheimer has recently been advised by the Staff of the NASD that the NASD has made a preliminary determination to recommend that an action be brought against the Chairman of Oppenheimer for alleged violations with respect to the Companys filing of the NASD mutual fund breakpoint survey in 2003. Such action, if brought, could result in, among other things, monetary penalty, censure, suspension and/or other remedial sanctions. The Company believes that there is no
16
basis for such action and that substantial defenses exist. The Company has filed a Wells Submission (a formal response to a request from a regulator that describes why an action should not be brought) with the NASD on behalf of the Companys Chairman and CEO, Albert G. Lowenthal. The Wells Submission sets forth the reasons why there is no basis for the NASD to bring claims that Mr. Lowenthal failed to properly oversee a response to an industry-wide NASD mutual fund breakpoint survey conducted in 2003 or that he permitted the filing of incorrect data in that response.
As stated in the Companys Wells Submission, Oppenheimer had previously informed the NASD of certain limitations within its system relative to selecting out and generating data in the form requested by the NASD, and the NASD had stated that no extensions to file would be granted to any firm. As a result, at the deadline, Oppenheimer submitted the data it then had available. The NASD informed Oppenheimer within two days that its submission was deficient. As further stated in its Wells Submission, the assignment of overall responsibility for the response to the 2003 survey was properly delegated by Mr. Lowenthal to individuals who had the requisite experience and background to complete and file the survey with the NASD. This was an appropriate delegation of responsibilities as permitted under normal corporate organization, the securities laws and the NASDs own rules. The Company and Mr. Lowenthal believe that there is no basis for a disciplinary action to be brought against Mr. Lowenthal because of these issues.
It should also be noted that Oppenheimer subsequently undertook on a voluntary basis to review all of its mutual fund trades for all classes for the period from 2000 to the present time. This review included a search for all trades that may have been eligible for a break-point (reduced commission) but did not receive them. Oppenheimer has begun refunding these amounts to both former and existing clients.
The Company and Mr. Lowenthal are cooperating and intend to continue to cooperate with all regulators and to negotiate a fair resolution of all outstanding regulatory issues which Oppenheimer faces. However, if the NASD does file an action based on the submission of the data for the survey, the Company and Mr. Lowenthal intend to vigorously contest that action.
Oppenheimer is also subject to various investigations by the NYSE that are likely to result in an enforcement action or actions with respect to its handling of the conversion of the client accounts of CIBC World Markets during May 2003, various Patriot Act and anti-money laundering issues, and issues related to activities by a few of its former financial advisors with respect to market timing or late trading of mutual funds as discussed above. Such actions, if brought, could result in, among other things, disgorgement, civil monetary penalties and/or other remedial sanctions. The Company has been working with the NYSE toward a resolution of these matters.
While the Company believes that it has substantial defenses to the claims and has had recent discussions with the NASD and the NYSE regarding possible resolution of these matters, the Company expects that one or more of these matters will result in enforcement actions against it. As part of its ongoing business, the Company records reserves for legal expenses, judgments, fines and/or awards attributable to litigation and regulatory matters. In connection therewith, the Company has increased its legal reserves for the second quarter 2005.
17
Business Continuity
The Company is committed to an on-going investment in its technology and communications infrastructure including extensive business continuity planning and investment. These costs are on-going and the Company believes that current and future costs will exceed historic levels due to business and regulatory requirements. The Company believes that internally-generated funds from operations are sufficient to finance its expenditure program.
Results of Operations
Net profit for the three months ended June 30, 2005 was $4,795,000 or $0.36 per share, an increase of 234% when compared to $1,437,000 or $0.11 per share in the same period of 2004. Revenue for the three months ended June 30, 2005 was $165,929,000, an increase of 7% compared to revenue of $154,743,000 in the same period of 2004. Expenses increased by 3% in the three months ended June 30, 2005 compared to the same period of 2004, primarily reflecting increased interest expense and legal and regulatory expenses.
Net profit for the six months ended June 30, 2005 was $8,560,000 or $0.64 per share, a decrease of 24% in net profit when compared to $11,241,000 or $0.84 per share in the same period of 2004. Revenue for the six months ended June 30, 2005 was $323,175,000 compared to $340,511,000 for the same period in 2004, a decrease of 5%. Expenses decreased by 4% in the six months ended June 30, 2005 compared to the same period of 2004, primarily reflecting decreased volume-related compensation expense, which varies with the level of commission revenue.
18
The following table and discussion summarizes the changes in the major revenue and expense categories for the periods presented (in thousands of dollars):
Three months ended June 30, |
Six months ended June 30, |
|||
2005 versus 2004 |
2005 versus 2004 |
|||
Amount |
Percentage |
Amount |
Percentage |
|
Revenue - |
||||
Commissions |
$(3,109) |
-4.0 |
$(14,290) |
-8.4 |
Principal transactions, net |
2,510 |
10.6 |
(13,816) |
-23.0 |
Interest |
6,992 |
65.9 |
10,984 |
51.9 |
Underwriting fees |
4,649 |
47.1 |
2,206 |
9.0 |
Advisory fees |
1,596 |
5.9 |
3,269 |
6.2 |
Arbitration awards |
- |
- |
(2,700) |
-100 |
Other |
(1,452) |
-27.6 |
(2,988) |
-33.5 |
Total revenue |
11,186 |
7.2 |
(17,335) |
-5.1 |
Expenses - |
||||
Compensation and related expense |
(3,250) |
-3.1 |
(18,655) |
-8.3 |
Clearing and exchanges fees |
526 |
13.7 |
846 |
10.9 |
Communications and technology |
(690) |
-5.1 |
(3,787) |
-12.9 |
Occupancy and equipment costs |
(944) |
-7.5 |
(2,421) |
-9.3 |
Interest |
4,495 |
102.7 |
7,047 |
82.3 |
Other |
4,982 |
37.8 |
3,538 |
13.7 |
Total expenses |
5,119 |
3.4 |
(13,432) |
-4.2 |
Profit before taxes |
6,067 |
245.0 |
(3,903) |
-20.6 |
Income taxes |
2,709 |
260.7 |
(1,222) |
-15.9 |
Net profit |
$3,358 |
233.7 |
$(2,681) |
-23.9 |
19
Revenue, other than interest
Commission income and, to a large extent, income from principal transactions depend on investor participation in the markets. In the three and six months ended June 30, 2005, commission revenue decreased by 4% and 8%, respectively, compared to the same periods of 2004, primarily as a result of a decline in investor activity in the equity markets in the periods being compared. Net revenue from principal transactions increased by 11% in the three months ended June 30, 2005 and decreased by 23% in the six months ended June 30, 2005 compared to the comparable periods of 2004. The second quarter of 2005 included the impact of gains taken during the quarter from investments and favorable results in fixed income trading NASDAQ trading results declined from the same period last year. The six month period reflected the impact of greater pricing transparency and competitive factors, as well as lower market trading volumes generally in the first half of 2005 compared to the first half of 2004. Investment banking revenues increased 47% and 9%, respectively, in the three and six months ended June 30, 2005 compared with the same periods of 2004 due to growth in this effort and an increase in new issue and secondary issuance in 2005 compared to 2004. Advisory fees increased by 6% for both the three and six months ended June 30, 2005 compared to the same periods of 2004, reflecting a client base that is increasingly interested in fee-based services and products. Assets under management by the asset management group were $10.9 billion at June 30, 2005 compared to $9.6 billion at June 30, 2004. The Company received an arbitration award in the first three months of 2004 of $2.7 million (nil in 2005), affecting the six month comparison.
Interest
Net interest revenue (interest revenue less interest expense) increased by 40% and 31%, respectively, in the three and six months ended June 30, 2005 compared to the same periods of 2004. Interest revenue, which primarily relates to revenue from customer margin balances and securities lending activities, increased by 66% and 52%, respectively, in the three and six months ended June 30, 2005 compared to the same periods of 2004 primarily as a result of higher interest rates in 2005, higher customer debit balances and increased securities lending activities.
Expenses, other than interest
Compensation expense decreased by 3% and 8%, respectively, in the three and six months ended June 30, 2005 compared to the comparable periods of 2004. Compensation expense has volume-related components and, therefore, changes with the level of commission business conducted in the three and six months ended June 30, 2005 compared to the comparable periods of 2004. The amortization of forgivable loans to brokers is included in compensation expense. This expense is relatively fixed and is not influenced by increases or decreases in revenue levels. The level of this amortization expense has dropped substantially in 2005 compared to 2004 due to a 16% decrease in the number of brokers owing such amounts to the Company. Employees who leave with note balances outstanding are expected to repay these balances. The Companys collection experience with respect to these notes is favorable. The cost of clearing and exchange fees increased by 14% and 11%, respectively, in the three and six months ended June 30, 2005 compared to the comparable periods of 2004 partly due to increased floor brokerage costs arising from increased institutional revenues. The cost of communications and technology decreased 5% and 13%, respectively, in the three and six months ended June 30, 2005 compared to the comparable periods of 2004. While the Company continues to build out its technology platform for supporting its increasingly more complex business, it has been successful in reducing its costs through reviewing
20
vendor charges and renegotiating more favorable terms. Occupancy costs decreased by 8% and 9%, respectively, in the three and six months ended June 30, 2005 compared to the comparable periods of 2004 due to the integration of overlapping offices and utilization of previously underutilized space. In addition the expense for the six months ended June 30, 2004 includes the cumulative impact of the change in accounting for leases and landlord incentives of $1,880,000, which was recorded in the restated results for the year to date ended June 30, 2004, affecting the six month comparison. Other expenses increased by 38% and 14%, respectively, in the first three and six months ended June 30, 2005 compared to the comparable periods in 2004. In the three months ended June 30, 2005 the change was due to approximately a $1 million decrease in bad debt expense and approximately a $5.5 million increase in litigation and legal reserves compared to the same period of 2004. Other expenses are expected to continue to be impacted by litigation settlement costs. The Company may face additional unfavorable judgments in future quarters. The Company has used its best estimate to provide adequate reserves to cover potential litigation losses. The increased burden of compliance with regulatory authorities, as well as Sarbanes-Oxley Act compliance, is reflected in higher audit and accounting fees as well as higher compensation and consulting fee expenses.
Liquidity and Capital Resources
Total assets at June 30, 2005 increased by 18% compared to total assets at December 31, 2004, primarily due to an increase in receivable from customers. The increase in customer margin debits reflects the Companys increased business relationship with financial institutions using the facilities of the Company for the purchase of various fixed income, highly marketable securities. The Company satisfies its need for funds from its own cash resources, internally generated funds, collateralized and uncollateralized borrowings, consisting primarily of bank loans, and uncommitted lines of credit. The amount of Oppenheimer's bank borrowings fluctuates in response to changes in the level of the Company's securities inventories and customer margin debt, changes in stock loan balances and changes in notes receivable from employees. Oppenheimer has arrangements with banks for borrowings on an unsecured and on a fully collateralized basis. At June 30, 2005, $262,900,000 of such borrowings were outstanding, an increase of over 100 times compared to outstanding borrowings at December 31, 2004, due to higher levels of customer margin balances. At June 30, 2005, the Company had available collateralized and uncollateralized letters of credit of $141 million.
In connection with the acquisition of the Oppenheimer divisions, the Company issued debentures in the amount of approximately $161 million and a zero coupon promissory note in the amount of approximately $66 million. The notes to the financial statements contain a description of these instruments. The debentures, if exchanged, would represent the addition of approximately 35% of the then-issued Class A Shares of the Company. The interest due on the debentures is payable semi-annually and is being financed from internally generated funds. The principal payments on the zero coupon promissory note are also being financed from internally generated funds. The Company believes that the necessary funds will be available to service these obligations from funds generated by normal operations, including funds generated by the acquired businesses.
In connection with the acquisition of the Oppenheimer divisions, the Company arranged a credit facility in the amount of $50 million with CIBC. In January 2003, the Company borrowed $25 million under this facility and borrowed the balance in July 2003. The borrowings were used to
21
finance broker retention notes and are repayable, together with interest, at the CIBC U.S. base rate plus 2% over five years or earlier if any broker notes become due earlier. The interest and principal repayments are being made out of internally generated funds and the Company believes that the cash flow from funds generated by normal operations, including funds generated by the acquired business, will be adequate to enable the Company to meet its obligations. In accordance with the credit arrangement, the Company has provided certain covenants to CIBC with respect to the maintenance of minimum debt/equity ratios and net capital of Oppenheimer. In the Companys view, the most restrictive of the covenants requires that Oppenheimer maintain minimum excess net capital of $100 million. As at June 30, 2005, the Company was in compliance with the covenants. The Company does not foresee any difficulties in complying with the covenants.
Funding Risk
Three months ended June 30, |
Six months ended June 30, |
|||
2005 |
2004 |
2005 |
2004 |
|
Cash (used in) provided by operations |
(227,544) |
15,343 |
(229,320) |
34,360 |
Cash used in investing activities |
(1,221) |
(1,426) |
(1,739) |
(4,368) |
Cash provided by (used in) financing activities |
224,119 |
(22,087) |
238,320 |
(33,848) |
Net increase (decrease) in cash and cash equivalents |
$(4,646) |
$(8,170) |
$7,261 |
$(3,856) |
Increased client borrowings to carry securities has resulted in a comparable increase in bank loans to fund such client borrowings. In addition the Companys investment in an institutional money management platform has resulted in a funding of Seed Accounts to track performance during the early stages of its operation.
Management believes that funds from operations, combined with the Company's capital base and available credit facilities, are sufficient for the Company's liquidity needs in the foreseeable future. (See Factors Affecting Forward-Looking Statements).
Other Matters
In the second quarter of 2005, the Company purchased 254,400 Class A Shares pursuant to a Normal Course Issuer Bid (which commenced on July 22, 2004, and terminated on July 21, 2005) at an average cost per share of $21.68.
On May 20, 2005, the Company paid cash dividends of U.S.$0.09 per Class A and Class B Share totaling $1,182,000 from available cash on hand.
On July 22, 2005, the Board of Directors declared a regular quarterly cash dividend of U.S. $0.09 per Class A and Class B Share payable on August 19, 2005, to shareholders of record on August 5, 2005.
The book value of the Companys Class A and Class B Shares was $23.40 at June 30, 2005 compared to $22.38 at June 30, 2004, an increase of approximately 5%, based on total outstanding
22
shares of 13,043,221 and 13,355,943, respectively.
Off-Balance Sheet Arrangements
Information concerning the Companys off-balance sheet arrangements is included in note 10 of the notes to the condensed consolidated financial statements. Such information is hereby incorporated by reference.
Contractual and Contingent Obligations
The Company has contractual obligations to make future payments in connection with non-cancelable lease obligations, certain retirement plans and debt assumed upon the 2003 acquisition from CIBC World Markets.
The following table sets forth these contractual and contingent commitments as at June 30, 2005:
Contractual Obligations (In millions of dollars)
Total |
Less than 1 Year |
1-3 Years |
3-5 Years |
More than 5 Years |
|
Minimum rentals |
$157 |
$13 |
$47 |
$39 |
$58 |
Supplemental Executive Retirement Plan |
1 |
- |
- |
1 |
- |
Bank loans |
17 |
5 |
12 |
- |
- |
Debentures |
161 |
- |
- |
- |
161 |
Zero coupon notes |
28 |
8 |
12 |
7 |
1 |
Total |
364 |
43 |
71 |
47 |
220 |
Newly Issued Accounting Standards
In December 2004, the FASB issued a revision to SFAS No. 123, Accounting for Stock-Based Compensation, SFAS No. 123-R, Share-Based Payment. SFAS No. 123-R focuses primarily on transactions in which an entity exchanges its equity instruments for employee services and generally establishes standards for accounting for transactions in which an entity obtains goods or services in share-based transactions. The implementation date for SFAS No. 123-R has recently been extended. Consequently, the Company will commence expensing stock-based compensation awards on January 1, 2006 using the modified prospective method. The Company anticipates that the impact of the adoption of SFAS No. 123-R may be material to its statement of operations.
Factors Affecting Forward-Looking Statements
This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Act), and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act). These forward-looking statements relate to anticipated financial performance, future revenues or earnings, the results of litigation, business prospects and
anticipated market performance of the Company. The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements. In order to comply with the terms of the safe harbor, the Company cautions readers that a variety of factors could cause the Companys actual results to differ materially from the anticipated results or other expectations expressed in the Companys forward-looking statements. These risks and uncertainties, many of which are beyond the Companys control, include, but are not limited to: (i) transaction volume in the securities markets, (ii) the volatility of the securities markets, (iii) fluctuations in interest rates, (iv) changes in regulatory requirements which could affect the cost and manner of doing business, (v) fluctuations in currency rates, (vi) general economic conditions, both domestic and international, (vii) changes in the rate of inflation and the related impact on the securities markets, (viii) competition from existing financial institutions and other new participants in the securities markets, (ix) legal or economic developments affecting the litigation experience of the securities industry or the Company, (x) the results of regulatory enforcement actions affecting the Company, (xi) changes in federal and state tax laws which could affect the popularity of products and services sold by the Company, (xii) the effectiveness of efforts to reduce costs and eliminate overlap, (xiii) war and nuclear confrontation, (xiv) the Companys ability to achieve its business plan and (xv) corporate governance issues. There can be no assurance that the Company has correctly or completely identified and assessed all of the factors affecting the Companys business. The Company does not undertake any obligation to publicly update or revise any forward-looking statements.
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk
During the three and six months ended June 30, 2005, there were no material changes to the information contained in Part II, Item 7A of the Companys Annual Report on Form 10-K/A for the year ended December 31, 2004.
ITEM 4. Controls and Procedures
The Company carried out an evaluation, under the supervision and with the participation of management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of its disclosure controls and procedures pursuant to Rule 13a15e of the Exchange Act. That evaluation included a review, in April 2005, of the Companys real estate lease accounting procedures and resulted in the discovery of accounting errors by the Company which required the restatement of its 2004 financial statements. As a result of the discovery of these errors, the Company, after consultation with the Audit Committee, decided that the audited financial statements included in the Companys Form 10-K for the year ended December 31, 2004 and its unaudited financial statements included in the Form 10-Qs for the quarters ended March 31, June 30 and September 30, 2004 should be restated to correct the errors. As of the date of filing, the Company believes its disclosure controls and procedures are effective.
The Company has addressed the material weakness in internal control over financial reporting and the ineffectiveness of its disclosure controls and procedures by conducting a review of accounting related to real estate leases and establishing new procedures (none of which the Company considers material) to ensure that new leases and landlord incentives are properly handled by the accounting department. Existing leases and landlord incentives have been identified and scheduled to ensure that the correct amounts are expensed each month. As of June 30, 2005, management has concluded that the Companys controls over its accounting policies are effective to ensure that transactions are recorded in accordance with accounting principles generally accepted in the United States of America.
23
Management, including the Chief Executive Officer and Chief Financial Officer, does not expect that the Companys disclosure controls and procedures or its internal controls will prevent all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include, but are not limited to, the realities that judgments in decisionmaking can be faulty and that break-downs can occur because of a simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based, in part, upon certain assumptions about the likelihood of future events and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a costeffective control system, misstatements due to error or fraud may occur and not be detected.
Changes in Internal Control over Financial Reporting
The following changes in the Companys internal control over financial reporting which occurred during the quarter ended June 30, 2005 have materially affected, or are reasonably likely to materially affect, the Companys internal control over financial reporting.
In the quarter ended June 30, 2005, the Company remediated the material weakness in its internal control over financial reporting as described above that existed at December 31, 2004. Specifically, the Company:
(i) |
|
restructured the group responsible for the accounting of property, plant and equipment and lease expense to add additional oversight and accounting knowledge to this group to ensure that the valuation of lease amortization expense and landlord incentives are calculated and recorded accurately, and in the correct period; |
(ii) |
|
formalized its accounting policies and procedures regarding classification of landlord incentives; |
(iii) |
|
formalized its accounting policies and procedures with respect to estimated useful lives of leasehold improvements; and |
(iv) |
|
enhanced its monitoring of developments surrounding the accounting for leases. |
No other changes in the Companys internal controls over financial reporting that have materially affected, or are reasonably likely to materially affect, the Companys internal controls over financial reporting, occurred during the quarter ended June 30, 2005.
24
PART II
OTHER INFORMATION
ITEM 1. Legal Proceedings
Many aspects of the Companys business involve substantial risks of liability. In the normal course of business, the Company has been named as defendant or co-defendant in lawsuits creating substantial exposure. The Company is also involved from time to time in governmental and self-regulatory agency investigations and proceedings. See Managements Discussion and Analysis of Financial Condition and Results of Operations -- Regulatory Environment. There has been an increased incidence of litigation and regulatory investigations in the financial services industry in recent years, including customer claims seeking, in total, substantial damages.
The Company is the subject of customer complaints, has been named as defendant or codefendant in various lawsuits seeking, in total, substantial damages and is involved in certain governmental and self-regulatory agency investigations and proceedings. These proceedings arise primarily from securities brokerage, asset management and investment banking activities. While the ultimate resolution of pending litigation, regulatory and other matters cannot be currently determined, in the opinion of management, after consultation with legal counsel, the Company has no reason to believe that the resolution of these matters will have a material adverse effect on its financial condition. However, the Companys results of operations could be materially affected during any period if liabilities in that period differ from prior estimates. The materiality of legal matters to the Companys future operating results depends on the level of future results of operations as well as the timing and ultimate outcome of such legal matters.
ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds
Not applicable
ITEM 3. Defaults Upon Senior Securities
Not applicable
ITEM 4. Submission of Matters to a Vote of Security Holders
The following discloses the voting results of the annual and special meeting of the shareholders of Oppenheimer Holdings Inc. (the "OPY") held on May 9, 2005.
Election of Directors By a vote by way of show of hands of the holders of the Class B voting shares, each of the following nominees was elected as a director of OPY to serve until the next annual meeting of the shareholders or until his successor is elected or appointed:
J. L. Bitove K. W. McArthur R. Crystal A. W. Oughtred A. G. Lowenthal E. K. Roberts B. Winberg
The Company held proxies as follows: FOR 96,663 AGAINST/WITHHELD 0 |
25
Appointment of Auditors By a vote by way of show of hands of the holders of the Class B voting shares, PricewaterhouseCoopers LLP were re-appointed to serve as the auditors of OPY until the next annual meeting of the shareholders or until a successor is appointed, at a rate of remuneration to be fixed by the directors. The board of directors has delegated to the Audit Committee the sole authority and responsibility for approval of all audit engagement fees and terms as well as the approval of all non-audit engagements and engagement fees.
The Company held proxies as follows: FOR 96,663 AGAINST/WITHHELD 0 |
Equity Incentive Plan Amendment By a vote by ballot of the holders of the Class A non-voting shares and Class B voting shares, voting together, the resolution attached as Schedule A-1 to the OPY's Management Information Circular dated March 25, 2005 (the "Circular") confirming an increase of 400,000 in the number of Class A non-voting shares issuable under OPYs 1996 Equity Incentive Plan was passed with 64.67% of the votes cast voting in favor of the resolution and 35.33% voting against.
The Company held proxies as follows: FOR 6,411,604 AGAINST 3,502,524 |
Oppenheimer Employee Share Plan By a vote by ballot of the holders of the Class A non-voting shares and Class B voting shares, voting together, the resolution attached as Schedule A-2 to the Circular approving OPYs Employee Share Plan was passed with 66.13% of the votes cast voting in favor of the resolution and 33.87% voting against.
The Company held proxies as follows: FOR 6,557,551 AGAINST 3,358,077 |
Issue of Class A Shares to the Oppenheimer & Co. Inc. 401(k) Plan By a vote by ballot of the holders of the Class A non-voting shares and Class B voting shares, voting together, the resolution attached as Schedule A-3 to the Circular authorizing the issue of 180,000 Class A non-voting shares to the Oppenheimer & Co. Inc. 401(k) Plan was passed with 67.8% of the votes cast voting in favor of the resolution and 32.19% voting against.
The Company held proxies as follows: FOR 6,721,048 AGAINST 3,190,980 |
26
Continuance from Provincial to Federal Jurisdiction By a vote by way of show of hands of the holders of the Class B voting shares, the special resolution attached as Schedule A-4 to the Circular authorizing the continuance of OPY under the Canada Business Corporations Act was passed.
The Company held proxies as follows: FOR 96,346 AGAINST/WITHHELD 0 |
Confirmation of By-law No. 1 By a vote by way of show of hands of the holders of the Class B voting shares, the resolution attached as Schedule A-5 to the Circular confirming new By-law No. 1 of OPY was passed.
The Company held proxies as follows: FOR 96,346 AGAINST/WITHHELD 0
|
Amended and Restated Performance-Based Compensation Agreement By a vote by way of show of hands of the holders of the Class B voting shares, the resolution attached as Schedule A-6 to the Circular confirming the approval by the Board of Directors of the Amended and Restated Performance-Based Compensation Agreement dated as of March 15, 2005 between OPY and Mr. A. G. Lowenthal was passed.
The Company held proxies as follows: FOR 96,342 AGAINST/WITHHELD 0 |
ITEM 5. Other Information
Not applicable
ITEM 6. Exhibits
Exhibits
3(i) |
Articles of Amendment of Oppenheimer Holdings Inc. |
3(ii) |
By Laws of Oppenheimer Holdings Inc. |
10.1 |
Oppenheimer Holdings Inc. Equity Incentive Plan Amendment No. 5 dated March 10, 2005 |
10.2 |
Performance-Based Compensation Agreement between Oppenheimer Holdings Inc. and Albert G. Lowenthal dated March 15, 2005. |
10.3 |
Oppenheimer & Co. Inc. Employee Share Plan dated January 1, 2005. |
31.1 |
Certification of Albert G. Lowenthal |
31.2 |
Certification of Elaine K. Roberts |
32.1 |
Certification of Albert G. Lowenthal and Elaine K. Roberts |
27
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized, in the City of Toronto, Ontario, Canada on this 8th day of August, 2005.
OPPENHEIMER HOLDINGS INC.
By:
A.G. Lowenthal
A.G. Lowenthal, Chairman and Chief Executive Officer
(Principal Executive Officer)
By:
E.K. Roberts
E.K. Roberts, President, Treasurer and Chief Financial Officer
(Principal Financial Officer)
28
OPPENHEIMER & CO. INC.
EMPLOYEE SHARE PLAN
The purpose of this Oppenheimer & Co. Inc. Employee Share Plan (the Plan) is to benefit the shareholders of Oppenheimer & Co. Inc., (the Company), by assisting the Company and its affiliates to attract, retain and provide incentives to key management employees of the Company, and to align the interests of such employees with those of the shareholders of the Company and the shareholders of the Companys parent corporation, Oppenheimer Holdings Inc. (the Parent).
The following definitions shall be applicable throughout the Plan unless the context otherwise requires:
Board shall mean the Board of Directors of the Parent.
Bonus Shares shall mean those Class A Shares awarded to an Employee pursuant to the provisions of Section 8.3 of the Plan.
Code shall mean the Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to any section and any regulation under such section.
Committee shall mean the Compensation and Stock Option Committee of the Board.
Class A Shares shall mean the Class A non-voting shares, of the Parent.
Company shall mean Oppenheimer & Co. Inc., a Delaware corporation, and any successor thereto.
Effective Date shall mean January 1, 2005.
Employee shall mean any person employed by the Company.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Fair Market Value shall mean, as of any specified date, the mean of the reported high and low sales prices of the Class A Shares on the New York Stock Exchange composite tape on that date, or if no prices are reported on that date, on the last preceding date on which such prices of the Class A Shares are so reported.
Family Member shall mean any child, stepchild, grandchild, parent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person sharing the Holders household (other than a tenant of the Holder), a trust in which such persons have more than fifty percent (50%) of the beneficial interest, a foundation in which such persons (or the Holder) control the management of assets, and any other entity in which such persons (or the Holder) own more than fifty percent (50%) of the voting interests.
Holder shall mean an Employee who has been granted a Restricted Stock Award or any such individuals beneficiary, estate or representative, to the extent applicable.
"Insider" shall have the meaning ascribed thereto in the Securities Act of Ontario, Canada and also includes associates and affiliates of insiders as those terms are defined in such legislation.
Parent shall mean Oppenheimer Holdings Inc.
Plan shall mean this Oppenheimer & Co. Inc. Employee Share Plan, as amended from time to time, together with each of the Restricted Stock Award Agreements utilized hereunder.
Restricted Stock Award shall mean an award granted under the Plan of Class A Shares, the transferability of which by the Holder shall be subject to Transfer Restrictions.
Restricted Stock Award Agreement shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
Restriction Period shall mean the period of time for which Class A Shares issued under the Plan shall be subject to Transfer Restrictions.
Rule 16b-3 shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, as such may be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a substantially similar function.
Total and Permanent Disability shall mean the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months, all as described in Section 22(e)(3) of the Code.
Transfer Restrictions shall mean restrictions on the transferability of shares of Class A Shares awarded to an Employee under the Plan.
ARTICLE III
EFFECTIVE DATE OF PLAN
The Plan shall be effective as of the Effective Date.
Section 4.1
Composition of Committee . The Plan shall be administered by the Committee, which shall be appointed by the Board. Notwithstanding the foregoing, however, at any time that the Class A Shares is listed on a national securities exchange or quoted on NASDAQ, the Committee shall consist solely of two (2) or more Directors who are each (i) outside directors within the meaning of Section 162(m) of the Code (Outside Directors), and (ii) non-employee directors within the meaning of Rule 16b-3 (Non-Employee Directors); provided , however , that the Board or the Committee may delegate to a committee of one or more members of the Board who are not (x) Outside Directors, the authority to grant Restricted Stock Awards to eligible persons who are not (A) then covered employees within the meaning of Section 162(m) of the Code and are not expected to be covered employees at the time of recognition of income resulting from such Restricted Stock Award, or (B) persons with respect to whom the Company wishes to comply with the requirements of Section 162(m) of the Code, and/or (y) Non-Employee Directors, the authority to grant Restricted Stock Awards to eligible persons who are not then subject to the requirements of Section 16 of the Exchange Act.
Section 4.2
Powers . Subject to the provisions of the Plan, the Committee shall have the sole authority, in its discretion, to determine which individuals shall receive a Restricted Stock Award, the time or times when such Restricted Stock Award shall be made and the number of Class A Shares which may be issued under such Restricted Stock Award, as applicable. In making such determinations the Committee may take into account the nature of the services rendered by the respective individuals, their present and potential contribution to the Companys success and such other factors as the Committee in its discretion shall deem relevant.
Section 4.3
Additional Powers . The Committee shall have such additional powers as are delegated to it under the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective Restricted Stock Award Agreements executed hereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan, and to determine the terms, restrictions and provisions of each Restricted Stock Award, and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any Restricted Stock Award Agreement in the manner and to the extent it shall deem expedient to carry it into effect. The determinations of the Committee on the matters referred to in this Article IV shall be conclusive.
Section 4.4
Committee Action . In the absence of specific rules to the contrary, action by the Committee shall require the consent of a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting.
ARTICLE V
STOCK SUBJECT TO PLAN AND LIMITATIONS THEREON
Section 5.1
Stock Grant and Award Limits . The Committee may from time to time grant Restricted Stock Awards to one or more Employees determined by it to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to Article IX, the aggregate number of Class A Shares that may be issued under the Plan shall not exceed Seven Hundred Fifty Thousand (750,000) shares. Class A Shares shall be deemed to have been issued under the Plan solely to the extent actually issued and delivered pursuant to a Restricted Stock Award. To the extent that a Restricted Stock Award lapses or the rights of its Holder terminate, any Class A Shares subject to such Restricted Stock Award shall again be available for the grant of a new Restricted Stock Award.
Section 5.2
Stock Offered . The stock to be offered pursuant to the grant of a Restricted Stock Award may be authorized but unissued Class A Shares or Class A Shares purchased on the open market. [Note to Draft: Under Canadian law, shares repurchased must be cancelled and may not re re-issued.]
ARTICLE VI
ELIGIBILITY FOR RESTRICTED STOCK AWARDS;
TERMINATION OF
EMPLOYMENT
Section 6.1
Eligibility . Restricted Stock Awards made under the Plan may be granted solely to persons who, at the time of grant, are Employees. A Restricted Stock Award may be granted on more than one occasion to the same Employee.
Section 6.2
Restriction on Insiders. No Employee who is an Insider of the Parent may receive a Restricted Stock Award which, with all other Restricted Stock Awards made to such Employee and all other rights such Employee has to receive Class A Shares under other share compensation arrangements of the Company or the Parent, would entitle such Employee to acquire more than 10% of the issued and outstanding Class A Shares on an undiluted basis.
Section 6.3
Termination of Employment . Except to the extent inconsistent with the terms of the applicable Restricted Stock Award Agreement, if a Holders employment with the Company terminates for any reason prior to the actual or deemed satisfaction and/or lapse of the Transfer Restrictions applicable to such Holders Restricted Stock Award, such Restricted Stock shall immediately be canceled, and the Holder (and such Holders estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in and with respect to any such Restricted Stock. The immediately preceding sentence to the contrary notwithstanding, the Committee, in its sole discretion, may determine, prior to or within thirty (30) days after the date of such termination of employment that all or a portion of any such Holders Restricted Stock shall not be so canceled and forfeited, for example, in the case of a Holders death or Total and Permanent Disability.
ARTICLE VII
RESTRICTED STOCK AWARDS
Section 7.1
Restriction Period to be Established by Committee . At the time a Restricted Stock Award is made, the Committee shall establish the Restriction Period applicable to the Transfer Restrictions imposed in connection with such Restricted Stock Award. Each Restricted Stock Award may have different Transfer Restrictions and/or a different Restriction Period, in the discretion of the Committee. The Transfer Restrictions and/or Restriction Period applicable to a particular Restricted Stock Award shall not be changed except as permitted by Section 7.2.
Section 7.2
Other Terms and Conditions . Class A Shares awarded pursuant to a Restricted Stock Award shall, when issued, be represented by a stock certificate registered in the name of the Holder of such Restricted Stock Award. If provided for under the Restricted Stock Award Agreement, the Holder shall enjoy all shareholder rights applicable to the Class A Shares, except that (i) the Holder shall not be entitled to delivery of the stock certificate until the Restriction Period shall have expired, (ii) the Company shall retain custody of the stock certificate during the Restriction Period, (iii) the Holder may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the Class A Shares during the Restriction Period, (iv) the Holder shall be entitled to receive dividends on the Class A Shares during the Restriction Period and (v) a breach of the terms and conditions established by the Committee pursuant to the Restricted Stock Award Agreement shall cause a forfeiture of the Restricted Stock Award. A Restricted Stock Award may be by way of the conditional issue of Class A shares where the Class A Shares will not actually be issued until conditions are met at a future date in which case the recipient of the Restricted Stock Award would have no rights as a shareholder unless and until the conditions are met and the Class A Shares actually issued. At the time of a Restricted Stock Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the effect of termination of employment prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall, to the extent inconsistent with the provisions of Section 6.2, be set forth in a Restricted Stock Award Agreement made in conjunction with the Restricted Stock Award. Such Restricted Stock Award Agreement may also include provisions relating to (i) subject to the provisions hereof, accelerated vesting of Restricted Stock Awards, including but not limited to accelerated vesting upon the occurrence of a change of control of the Company or the Parent, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements and requiring additional gross-up payments to Holders to meet any excise taxes or other additional income tax liability imposed as a result of a payment made in connection with a change of control of the Company resulting from the operation of the Plan or of such Restricted Stock Award Agreement) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Restricted Stock Award Agreements need not be identical.
Section 7.3
Payment for Restricted Stock . The Committee shall determine the amount and form of any payment for Class A Shares received pursuant to a Restricted Stock Award, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Class A Shares received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
Section 7.4
Restricted Stock Award Agreements . At the time any Restricted Stock Award is made under this Article VII, the Company and the Holder shall enter into a Restricted Stock Award Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate.
ARTICLE VIII
ADDITIONAL CLASS A SHARES PURCHASES AND
AWARDS OF BONUS SHARES
Section 8.1
In General . Prior to each calendar year occurring on or after the Effective Date, the Board, in its sole discretion, shall determine whether or not any Class A Shares may be purchased by one or more Employees under this Article VIII.
Section 8.2
Additional Class A Shares Purchases . For any applicable calendar year pursuant to the provisions of Section 8.1, any Employee so designated by the Committee may elect, by no later than January 7 Note to Draft: Can or should this date be later? , to forego the receipt of a portion of his or her annual bonus to be payable for services rendered in the immediately preceding calendar year, up to a maximum amount of twenty-five percent (25%) thereof, and to have the Company instead use such funds to purchase for the Employee, shares of fully vested and unencumbered Class A Shares, through open market purchases, such shares having a Fair Market Value in the aggregate which is equal to such foregone bonus amount.
Section 8.3
Awards of Bonus Shares . The Company shall award any Employee who makes an election under Section 8.1 (utilizing the Bonus Deferral Election form attached hereto as Exhibit A) for a particular calendar year, with that number of Bonus Shares having a Fair Market Value in the aggregate equal to fifteen percent (15%) of the total Fair Market Value of the shares purchased by the Employee pursuant to Section 8.2. The Bonus Shares shall be subject to Transfer Restrictions for a three (3) year period from their date of award. Should the Employees employment with the Company terminate for any reason prior to the end of the three (3) year Restriction Period, the Employee shall forfeit such Bonus Shares in their entirety. The immediately preceding sentence to the contrary notwithstanding, the Committee, in its sole discretion, may determine, prior to or within thirty (30) days after the date of an Employees termination of employment, that all or a portion of such Employees Bonus Shares shall not be so canceled and forfeited, for example, in the case of the Employees death or Total and Permanent Disability.
ARTICLE IX
RECAPITALIZATION OR REORGANIZATION
Section 9.1
Adjustments to Class A Shares . The shares with respect to which Restricted Stock Awards may be granted under the Plan are Class A Shares as presently constituted; provided , however , that if, and whenever, prior to the expiration or distribution to the Holder of a Restricted Stock Award theretofore granted, the Parent shall effect a subdivision or consolidation of Class A Shares or the payment of a stock dividend on Class A Shares without receipt of consideration by the Parent, the number of Class A Shares with respect to which such Restricted Stock Award may thereafter be exercised or satisfied, as applicable, (i) in the event of an increase in the number of outstanding shares, shall be proportionately increased, and the purchase price per share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding shares, shall be proportionately reduced, and the purchase price per share shall be proportionately increased.
Section 9.2
Recapitalization . If the Parent recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of a previously granted Restricted Stock Award, the Holder shall be entitled to receive (or entitled to purchase, if applicable) under such Restricted Stock Award, in lieu of the number of Class A Shares then covered by such Restricted Stock Award, the number and class of shares of stock and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of Class A Shares then covered by such Restricted Stock Award.
Section 9.3
Other Events . In the event of changes to the outstanding Class A Shares by reason of recapitalizations, reorganizations, amalgamations, mergers, consolidations, combinations, exchanges or other relevant changes in capitalization occurring after the date of the grant of any Restricted Stock Award and not otherwise provided for under this Article IX, any outstanding Restricted Stock Awards and any Restricted Stock Award Agreements evidencing such Restricted Stock Awards shall be subject to adjustment by the Committee in its discretion as to the number and price of Class A Shares or other consideration subject to such Restricted Stock Awards. In the event of any such change to the outstanding Class A Shares, the aggregate number of shares available under the Plan may be appropriately adjusted by the Committee, the determination of which shall be conclusive.
Section 9.4
Powers Not Affected . The existence of the Plan and the Restricted Stock Awards granted hereunder shall not affect in any way the right or power of the Board or of the shareholders of the Parent to make or authorize any adjustment, recapitalization, reorganization or other change of the Parents capital structure or business, any merger or consolidation of the Parent, any issue of debt or equity securities ahead of or affecting Class A Shares or the rights thereof, the dissolution or liquidation of the Parent or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding.
Section 9.5
No Adjustment for Certain Restricted Stock Awards . Except as hereinabove expressly provided, the issuance by the Parent of shares of stock of any class or securities convertible into shares of stock of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor or upon conversion of shares or obligations of the Parent convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect previously granted Restricted Stock Awards, and no adjustment by reason thereof shall be made with respect to the number of Class A Shares subject to Restricted Stock Awards theretofore granted or the purchase price per share, if applicable.
ARTICLE X
AMENDMENT AND TERMINATION OF PLAN
Section 10.1
Amendment and Termination . The Board in its discretion may terminate the Plan at any time with respect to any shares for which Restricted Stock Awards have not theretofore been granted. The Board shall have the right to alter or amend the Plan or any part hereof from time to time; provided , however , that no change in any Restricted Stock Award theretofore granted may be made which would materially and adversely impair the rights of a Holder without the consent of the Holder (unless such change is required in order to cause the benefits under the Plan to qualify as performance-based compensation within the meaning of Section 162(m) of the Code).
Section 10.2
Regulatory Approval of Amendments. No amendment of the Plan or of any Restricted Stock Awards requiring regulatory approval or the approval of any stock exchange or quotation system on which the Class A Shares are listed or quoted shall be effective until all necessary approvals required thereby shall have been obtained.
Section 11.1
No Right to Restricted Stock Award . Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an Employee any right to a Restricted Stock Award except as may be evidenced by a Restricted Stock Award Agreement duly executed on behalf of the Company, and then solely to the extent and on the terms and conditions expressly set forth therein.
Section 11.2
No Rights Conferred . Nothing contained in the Plan shall (i) confer upon any Employee any right with respect to continuation of employment with the Company, or (ii) interfere in any way with the right of the Company to terminate the employment of an Employee at any time .
Section 11.3
Other Laws; Withholding . The Parent shall not be obligated to issue any Class A Shares pursuant to any Restricted Stock Award granted under the Plan at any time when the shares covered by such Restricted Stock Award have not been registered under the Securities Act of 1933 and under such other state and federal laws, rules or regulations as the Parent or the Committee deems applicable and, in the opinion of legal counsel of the Parent, if there is no exemption from the registration requirements of such laws, rules or regulations available for the issuance and sale of such shares. No fractional Class A Shares shall be delivered, nor shall any cash in lieu of fractional shares be paid. The Parent shall have the right to deduct in cash (whether under this Plan or otherwise) in connection with all Restricted Stock Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations. In the case of any Restricted Stock Award satisfied in the form of Class A Shares, no shares shall be issued unless and until arrangements satisfactory to the Parent shall have been made to satisfy any tax withholding obligations applicable with respect to such Restricted Stock Award. Subject to such terms and conditions as the Committee may impose, the Parent shall have the right to retain, or the Committee may, subject to such terms and conditions as it may establish from time to time, permit Holders to elect to tender, Class A Shares (including Class A Shares issuable in respect of a Restricted Stock Award) to satisfy, in whole or in part, the amount required to be withheld.
Section 11.4
No Restriction on Corporate Action . Nothing contained in the Plan shall be construed to prevent the Company or the Parent from taking any corporate action which is deemed by the Company or the Parent to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Restricted Stock Award made under the Plan. No Employee, beneficiary or other person shall have any claim against the Company or the Parent as a result of any such action.
Section 11.5
Restrictions on Transfer . No Restricted Stock Award under the Plan or any Restricted Stock Award Agreement and no rights or interests herein or therein, shall or may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by a Holder except (i) by will or by the laws of descent and distribution, or (ii) by gift to any Family Member of the Holder. Notwithstanding any such transfer, the Holder shall continue to be subject to the withholding requirements provided for under Section 11.3 hereof.
Section 11.6
Beneficiary Designations . Each Holder may, from time to time, name a beneficiary or beneficiaries (who may be contingent or successive beneficiaries) for purposes of receiving any amount which is payable in connection with a Restricted Stock Award under the Plan upon or subsequent to the Holders death, by utilizing the Beneficiary Designation form attached hereto as Exhibit B. Each such beneficiary designation shall serve to revoke all prior beneficiary designations, be in a form prescribed by the Parent and be effective solely when filed by the Holder in writing with the Company during the Holders lifetime. In the absence of any such written beneficiary designation, for purposes of the Plan, a Holders beneficiary shall be the Holders estate.
Section 11.7
Rule 16b-3 . It is intended that, at any time when the Class A Shares are listed on a national securities exchange or quoted on NASDAQ, the Plan and any Restricted Stock Award made to a person subject to Section 16 of the Exchange Act shall meet all of the requirements of Rule 16b-3. If any provision of the Plan or of any such Restricted Stock Award would disqualify the Plan or such Restricted Stock Award under, or would otherwise not comply with the requirements of, Rule 16b-3, such provision or Restricted Stock Award shall be construed or deemed to have been amended as necessary to conform to the requirements of Rule 16b-3.
Section 11.8
Section 162(m) . It is intended that, at any time when the Class A Shares are listed on a national securities exchange or quoted on NASDAQ, the Plan shall comply fully with and meet all the requirements of Section 162(m) of the Code so that Restricted Stock Awards hereunder which are made to Holders who are covered employees (as defined in Section 162(m) of the Code) shall constitute performance-based compensation within the meaning of Section 162(m) of the Code. The performance criteria to be utilized under the Plan for such purposes shall consist of objective tests based on one or more of the following: earnings or earnings per share, cash flow, customer satisfaction, revenues, financial return ratios (such as return on equity and/or return on assets), market performance, shareholder return and/or value, operating profits, EBITDA, net profits, profit returns and margins, stock price, credit quality, sales growth, market share, comparisons to peer companies (on a company-wide or divisional basis), working capital and/or individual or aggregate employee performance. If any provision of the Plan would disqualify the Plan or would not otherwise permit the Plan to comply with Section 162(m) as so intended, such provision shall be construed or deemed amended to conform to the requirements or provisions of Section 162(m); provided , however , that no such construction or amendment shall have an adverse effect on the economic value to a Holder of any Restricted Stock Award previously granted hereunder.
Section 11.9
Other Plans . No Restricted Stock Award, payment or amount received hereunder shall be taken into account in computing an Employees salary or compensation for the purposes of determining any benefits under any pension, retirement, life insurance or other benefit plan of the Company or the Parent, unless such other plan specifically provides for the inclusion of such Restricted Stock Award, payment or amount received.
Section 11.10
Limits of Liability . Any liability of the Company or the Parent with respect to a Restricted Stock Award shall be based solely upon the contractual obligations created under the Plan and the Restricted Stock Award Agreement. Neither the Company, the Parent nor any member of the Committee shall have any liability to any party for any action taken or not taken, in good faith, in connection with or under the Plan.
Section 11.11
Governing Law . Except as otherwise provided herein, the Plan shall be construed in accordance with the laws of the State of New York.
Section 11.12
Severability of Provisions . If any provision of the Plan is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision had not been included in the Plan.
Section 11.13
Headings . Headings used throughout the Plan are for convenience only and shall not be given legal significance.
EXHIBIT A
OPPENHEIMER & CO. INC.
EMPLOYEE SHARE PLAN
BONUS DEFERRAL ELECTION
TO:
Oppenheimer & Co. Inc. (the Corporation)
Attention: Secretary
FROM:
__________________________
[Print Name]
I hereby elect to have ______% of my Bonus, if any, otherwise payable to me for my services rendered during 200_, to be utilized under the Oppenheimer & Co. Inc. Employee Share Plan (the Plan) to purchase Class A Shares of the Parent, all pursuant to the provisions of Article VIII of the Plan.
I understand that, once made, this Election shall be irrevocable.
The Effective Date of this Election is: (to be completed by the Secretary; this will be the first January 7 following the date of this Election).
I understand that all capitalized terms and phrases used herein shall have the same meanings as ascribed to them under the Plan.
Signed:
Dated:
Accepted by:
Dated:
Secretary,
on behalf of the Corporation,
certifying that this Election of
Bonus Deferral is complete
EXHIBIT B
OPPENHEIMER & CO. INC.
EMPLOYEE SHARE PLAN
BENEFICIARY DESIGNATION
TO:
Oppenheimer & Co. Inc. (the Corporation)
Attention: Secretary
FROM:
__________________________
[Print Name]
I hereby designate the following as my beneficiary or beneficiaries under the Oppenheimer & Co. Inc. Employee Share Plan (the "Plan") to receive, in the event of my death, my Plan benefit, as follows:
Your Primary Designated Beneficiary is the follow person who would receive your benefit if you should die.
Your Surviving Designated Beneficiary is the person who will receive your benefit if your Primary Designated Beneficiary dies before you. If you wish to name more than one Primary Designated Beneficiary, you must note whether the surviving Primary Designated Beneficiaries will be entitled to your benefit if one of your Primary Designated Beneficiaries die. If not, that Designated Beneficiary's percentage will be paid to your Surviving Designated Beneficiary. If you wish to have your benefit distributed to your other Primary Designated Beneficiaries, note "or to the survivor" after each person's name.
Primary Designated Beneficiary (include address if not same as yours) |
Percent |
Relationship |
Social Security # |
|||
% |
||||||
% |
Surviving Designated Beneficiary (include address if not same as yours) |
Percent |
Relationship |
Social Security # |
|||
% |
||||||
% |
I understand that all capitalized terms and phrases used herein shall have the same meanings as ascribed to them under the Plan.
Signed:
Dated:
Accepted by:
Dated:
Secretary,
on behalf of the Corporation,
certifying that this Designation
of Beneficiary Election is complete
BY-LAW NO. 1
A by-law relating generally to the transaction
of the business and affairs of
OPPENHEIMER HOLDINGS INC.
CONTENTS
Part
Description
I
-
Interpretation
II
-
Business of the Corporation
III
-
Borrowing and Securities
IV
-
Directors
V
-
Committees
VI
-
Officers
VII
-
Protection of Directors, Officers and Others
VIII
-
Shares
IX
-
Dividends and Rights
X
-
Meetings of Shareholders
XI
-
Notices
XII
-
Documents in Electronic Form
XIII
-
Effective Date
BE IT ENACTED as a by-law of Oppenheimer Holdings Inc. (hereinafter referred to as the "Corporation") as follows:
PART I
INTERPRETATION
1.01
Definitions. In the by-laws of the Corporation, unless the context otherwise requires:
"Act" means the Canada Business Corporations Act, and any statute that may be substituted therefor, as from time to time amended;
"appoint" includes "elect" and vice versa;
"articles" means the articles of incorporation of the Corporation as from time to time amended or restated;
"board" means the board of directors of the Corporation;
"by-laws" means this by-law and all other by-laws of the Corporation from time to time in force and effect;
"meeting of shareholders" includes an annual meeting of shareholders and a special meeting of shareholders; "special meeting of shareholders" includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders;
"non-business day" means Saturday, Sunday and any other day that is a holiday as defined in the Interpretation Act (Canada);
"recorded address" means in the case of a shareholder, that persons address as recorded in the securities register; and in the case of joint shareholders the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one; and in the case of a director, officer, auditor or member of a committee of the board, that individuals latest address as recorded in the records of the Corporation;
regulations means the regulations enacted pursuant to the Act, as from time to time amended;
"signing officer" means, in relation to any instrument, any person authorized to sign the same on behalf of the Corporation by section 2.03 or by a resolution passed pursuant thereto;
"unanimous shareholder agreement" means a written agreement among all the shareholders of the Corporation, or among all such shareholders and one or more persons who are not shareholders, or a written declaration of the beneficial owner of all of the issued shares of the Corporation, that restricts, in whole or in part, the powers of the directors to manage the business and affairs of the Corporation, as from time to time amended;
save as aforesaid, words and expressions defined in the Act have the same meanings when used herein; and
words importing the singular number include the plural and vice versa; and words importing persons include individuals, bodies corporate, partnerships, trusts and unincorporated organizations.
PART II
BUSINESS OF THE CORPORATION
2.01
Corporate Seal. The Corporation may have one or more different corporate seals which may be adopted or changed from time to time by the board, on which the name of the Corporation appears in the language or one or more of the languages set out in the articles.
2.02
Financial Year. The financial year of the Corporation shall end on such day in each year as the board may from time to time by resolution determine.
2.03
Execution of Instruments. Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two of the directors or officers. In addition, the board may from time to time direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal (if any) to any instrument. Any signing officer may certify a copy of any instrument, resolution, by-law or other document of the Corporation to be a true copy thereof.
2.04
Execution in Counterpart. Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed in several documents of like form each of which is executed by all persons required or permitted, as the case may be, to do so, shall be deemed to constitute one document and to bear date as of the date of execution thereof by the last person.
2.05
Banking Arrangements. The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time prescribe or authorize.
2.06
Voting Rights in Other Bodies Corporate. The signing officers of the Corporation may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such proxies, certificates or other evidence shall be in favour of such person or persons as may be determined by the officers signing or arranging for them. In addition, the board may from time to time direct the manner in which and the person or persons by whom any particular voting rights or class of voting rights may or shall be exercised.
2.07
Withholding Information from Shareholders. No shareholder shall be entitled to discovery of any information respecting any details or conduct of the Corporation's business which, in the opinion of the board, it would be inexpedient in the interests of the shareholders or the Corporation to communicate to the public. The board may from time to time determine whether and to what extent and at what time and place and under what conditions or regulations the accounts, records and documents of the Corporation or any of them shall be open to the inspection of shareholders and no shareholder shall have any right of inspecting any account, record or document of the Corporation except as conferred by the Act or authorized by the board or by resolution passed at a meeting of shareholders.
2.08
Creation and Consolidation of Divisions. The board may cause the business and operations of the Corporation or any part thereof to be divided or to be segregated into one or more divisions upon such basis, including without limitation, character or type of operation, geographical territory, product manufactured or service rendered, as the board may consider appropriate in each case. The board may also cause the business and operations of any such division to be further divided into sub-units and the business and operations of any such divisions or sub-units to be consolidated upon such basis as the board may consider appropriate in each case.
2.09
Name of Division. Subject to compliance with law, any division or its sub-units may be designated by such name as the board may from time to time determine and may transact business under such name, provided that the Corporation shall set out its corporate name in legible characters in all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of the Corporation.
2.10
Officers of Division. From time to time the board or, if authorized by the board, the chief executive officer, may appoint one or more officers for any division, prescribe their powers and duties and settle their terms of employment and remuneration. The board or, if authorized by the board, the chief executive officer, may remove at its or that individuals pleasure any officer so appointed, without prejudice to such officer's rights under any employment contract. Officers of divisions or their sub-units shall not, as such, be officers of the Corporation.
PART III
BORROWING AND SECURITIES
3.01
Borrowing Power. Without limiting the borrowing powers of the Corporation as set forth in the Act, but subject to the articles and any unanimous shareholder agreement, the board may from time to time on behalf of the Corporation, without authorization of the shareholders:
(a)
borrow money on the credit of the Corporation;
(b)
issue, reissue, sell, pledge or hypothecate bonds, debentures, notes or other evidences of indebtedness or guarantee of the Corporation, whether secured or unsecured;
(c)
give a guarantee on behalf of the Corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and
(d)
mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation.
Nothing in this section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
3.02
Delegation. The board may from time to time delegate to a committee of the board, a director or an officer of the Corporation or any other person as may be designated by the board all or any of the powers conferred on the board by section 3.01 or by the Act to such extent and in such manner as the board may determine at the time of each such delegation.
PART IV
DIRECTORS
4.01
Number of Directors and Quorum. Until changed in accordance with the Act, the board shall consist of not less than the minimum and not more than the maximum number of directors provided for in the articles. The directors or the shareholders may by resolution from time to time determine the number of directors to be elected at an annual meeting, within such minimum and maximum. Subject to section 4.08, the quorum for the transaction of business at any meeting of the board shall consist of a majority of the minimum number of directors provided for in the articles or such greater number of directors as the board may from time to time determine.
4.02
Qualification. Unless otherwise provided by the Act, at least twenty-five per cent of the directors shall be resident Canadians. However, if at any time there are less than four directors, at least one director must be a resident Canadian. No person shall be qualified for election as a director if such person: (a) is less than 18 years of age; (b) is of unsound mind and has been so found by a court in Canada or elsewhere; (c) is not an individual; or (d) has the status of a bankrupt. A director need not be a shareholder.
4.03
Election and Term. The election of directors shall take place at the first meeting of shareholders and at each annual meeting of shareholders and all the directors then in office shall retire but, if qualified, shall be eligible for re-election. The number of directors to be elected at any such meeting shall be the number of directors then in office unless the directors or the shareholders otherwise determine. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected. Where the shareholders adopt an amendment to the articles to increase the number or minimum number of directors, the shareholders may, at the meeting at which they adopt the amendment, elect the additional number of directors thereby authorized.
4.04
Removal of Directors. Subject to the provisions of the Act, the shareholders may by resolution passed at a meeting specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting failing which it may be filled by the board.
4.05
Vacation of Office. A director ceases to hold office when such director dies, is removed from office by the shareholders acting pursuant to the Act, or ceases to be qualified for election as a director, or earlier if such director shall have submitted a written resignation to the Corporation; in which last-mentioned event such director shall cease to hold office at the later of (i) the time when such written resignation is sent or delivered to the Corporation and (ii) the time, if any, specified in such written resignation as the effective time of such resignation.
4.06
Vacancies. Subject to the Act, a quorum of the board may fill a vacancy in the board, except a vacancy resulting from an increase in the minimum or maximum number of directors or from a failure of the shareholders to elect the minimum number of directors. In the absence of a quorum of the board, or if the vacancy has arisen from a failure of the shareholders to elect the minimum number of directors, the board shall forthwith call a special meeting of shareholders to fill the vacancy. If the board fails to call such meeting or if there are no directors then in office, any shareholder may call the meeting.
4.07
Action by the Board. Subject to any unanimous shareholder agreement, the board shall manage, or supervise the management of, the business and affairs of the Corporation. Subject to sections 4.08 and 4.09, the powers of the board may be exercised by a meeting at which the quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the board. Where there is a vacancy in the board, the remaining directors may exercise all the powers of the board so long as a quorum remains in office. Where the Corporation has only one director, that director may constitute a meeting.
4.08
Canadian Directors Present at Meeting. Unless otherwise provided by the Act, the board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least twenty-five percent of the directors present at the meeting are resident Canadians or, if there are less than four directors, at least one of the directors present is a resident Canadian, except where:
(e)
a resident Canadian director who is unable to be present approves in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting; and
(f)
the required number of resident Canadians would have been present had that director been present at the meeting.
4.09
Meeting by Communications Facility. If all the directors of the Corporation consent, a director may, in accordance with the regulations, participate in a meeting of the board, or of a committee of the board, by means of a telephonic, electronic or other communications facility that permits all participants to communicate adequately with each other during the meeting. A director participating in such a meeting by such means is deemed to be present at the meeting. Any such consent shall be effective whether given before or after the meeting to which it relates and may be given with respect to all meetings of the board and of committees of the board.
4.10
Place of Meetings. Meetings of the board may be held at any place in or outside Canada.
4.11
Calling of Meetings. Meetings of the board shall be held from time to time at such time and at such place as the board, the chairman of the board, the managing director, the president, the vice-president or any two directors may determine.
4.12
Notice of Meeting. Notice of the time and place of each meeting of the board shall be given in the manner provided in section 11.01 to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified, including, if required by the Act, any proposal to:
(g)
submit to the shareholders any question or matter requiring approval of the shareholders;
(h)
fill a vacancy among the directors or in the office of auditor, or appoint additional directors;
(i)
issue securities;
(j)
issue shares of a series;
(k)
declare dividends;
(l)
purchase, redeem or otherwise acquire shares issued by the Corporation;
(m)
pay a commission for the sale of shares;
(n)
approve a management proxy circular;
(o)
approve a take-over bid circular or directors' circular;
(p)
approve any annual financial statements; or
(q)
adopt, amend or repeal by-laws.
4.13
First Meeting of New Board. Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting immediately following the meeting of shareholders at which such board is elected.
4.14
Adjourned Meeting. Notice of an adjourned meeting of the board is not required if the time and place of the adjourned meeting is announced at the original meeting.
4.15
Regular Meetings. The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except where the Act requires the purpose thereof or the business to be transacted thereat to be specified.
4.16
Chairman. The chairman of any meeting of the board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chairman of the board, managing director, president, or a vice-president. If no such officer is present, the directors present shall choose one of their number to be chairman.
4.17
Votes to Govern. At all meetings of the board every question shall be decided by a majority of the votes cast on the question. In case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
4.18
Declaration of Interest. A director or officer who is a party to, or who is a director or officer of, or has a material interest in, any person who is a party to a material contract or material transaction, whether made or proposed, with the Corporation, shall disclose the nature and extent of his or her interest at the time and in the manner provided by the Act. Any such contract or proposed contract shall be referred to the board or shareholders for approval even if such contract is one that in the ordinary course of the Corporation's business would not require approval by the board or shareholders, and a director interested in a contract so referred to the board shall not vote on any resolution to approve the same except as provided by the Act.
4.19
Remuneration and Expenses. Subject to any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
PART V
COMMITTEES
5.01
Committee of Board. The board may appoint one or more committees of the board, however designated, and delegate to any such committee any of the powers of the board except those which, under the Act, a committee of the board has no authority to exercise.
5.02
Transaction of Business. The powers of a committee of the board may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place in or outside of Canada.
5.03
Advisory Bodies. The board may from time to time appoint advisory bodies.
5.04
Procedure. Unless otherwise determined by the board, each committee and advisory body shall have power to fix its quorum at not less than a majority of its members, to elect its chairman and to regulate its procedure.
PART VI
OFFICERS
6.01
Appointment. Subject to any unanimous shareholder agreement, the board may from time to time appoint a president, one or more vice-presidents (to which title may be added words indicating seniority or function), a secretary, a treasurer and such other officers as the board may determine, including one or more assistants to any of the officers so appointed. The board may specify the duties of and, in accordance with this by-law and subject to the provisions of the Act, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not be a director and one person may hold more than one office.
6.02
Chairman of the Board. The board may from time to time also appoint a chairman of the board. If appointed, the board may assign to the chairman any of the powers and duties that are by any provisions of this by-law assigned to the managing director or to the president, and the chairman shall, subject to the provisions of the Act, have such other powers and duties as the board may specify. During the absence or disability of the chairman of the board, the chairmans duties shall be performed and the chairmans powers exercised by the managing director, if any, or by the president.
6.03
Managing Director. The board may from time to time also appoint a managing director who shall be a resident Canadian and a director. If appointed, the managing director shall be the chief executive officer and, subject to the authority of the board, shall have general supervision of the business and affairs of the Corporation; and the managing director shall, subject to the provisions of the Act, have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the managing director shall also have the powers and duties of that office.
6.04
President. If appointed, the president shall be the chief operating officer and, subject to the authority of the board, shall have general supervision of the business of the Corporation; and the president shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.
6.05
Vice-President. A vice-president shall have such powers and duties as the board or the chief executive officer may specify.
6.06
Secretary. The secretary, as and when requested to do so, shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; the secretary shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the board; the secretary shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation (if any) and of all books, papers, records, documents and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and the secretary shall have such other powers and duties as the board or the chief executive officer may specify.
6.07
Treasurer. The treasurer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; the treasurer shall render to the board whenever required an account of all transactions undertaken and of the financial position of the Corporation; and the treasurer shall have such other powers and duties as the board or the chief executive officer may specify.
6.08
Powers and Duties of Other Officers. The powers and duties of all other officers shall be such as the terms of their engagement call for or as the board or the chief executive officer may specify. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the board or the chief executive officer otherwise directs.
6.09
Variation of Powers and Duties. The board may from time to time and subject to the provisions of the Act, vary, add to or limit the powers and duties of any officer.
6.10
Term of Office. The board, in its discretion, may remove any officer of the Corporation, without prejudice to such officer's rights under any employment contract. Otherwise each officer appointed by the board shall hold office until such officers successor is appointed, or until such officers earlier resignation.
6.11
Terms of Employment and Remuneration. The terms of employment and the remuneration of an officer appointed by the board shall be settled by it from time to time.
6.12
Declaration of Interest. An officer shall disclose his or her interest in any material contract or proposed material contract with the Corporation in accordance with section 4.18.
6.13
Agents and Attorneys. The board shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers of management or otherwise (including the powers to subdelegate) as may be thought fit.
6.14
Fidelity bonds. The board may require such officers, employees and agents of the Corporation as the board deems advisable to furnish bonds for the faithful discharge of their powers and duties, in such form and with such surety as the board may from time to time determine.
PART VII
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01
Limitation of Liability. No director or officer shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on such individuals part, or for any other loss, damage or misfortune whatever which shall happen in the execution of the duties of such individuals office or in relation thereto; provided that nothing herein shall relieve any director or officer from the duty to act in accordance with the Act and the regulations thereunder or from liability for any breach thereof.
7.02
Indemnity. Subject to the limitations contained in the Act, the Corporation shall indemnify a director or officer, a former director or officer, or another individual who acts or acted at the Corporation's request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other action or proceeding in which the individual is involved because of such individuals association with the Corporation or other entity, if the individual:
(r)
acted honestly and in good faith with a view to the best interests of the Corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the request of the Corporation; and
(s)
in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individuals conduct was lawful.
The Corporation may advance moneys to an individual entitled to indemnification pursuant to this section for the costs, charges and expenses of such proceedings. The Corporation shall also indemnify such person in such other circumstances as the Act requires. Nothing in this by-law shall limit the right of any person entitled to indemnity apart from the provisions of this by-law.
7.03
Insurance. The Corporation may purchase and maintain insurance for the benefit of any individual referred to in section 7.02 against any liability incurred by the individual:
(t)
in the individuals capacity as a director or officer of the Corporation; or
(u)
in the individuals capacity as a director or officer, or similar capacity, of another entity, if the individual acts or acted in that capacity at the request of the Corporation.
PART VIII
SHARES
8.01
Allotment. Subject to the provisions of the Act, the articles and any unanimous shareholder agreement, the board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.
8.02
Commissions. The board may from time to time authorize the Corporation to pay a commission to any person in consideration of such person purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
8.03
Registration of Transfers. Subject to the provisions of the Act, no transfer of shares shall be registered in a securities register except upon presentation of the certificate representing such shares with an endorsement, which complies with the Act, made thereon or delivered therewith duly executed by an appropriate person as provided by the Act, together with such reasonable assurance that the endorsement is genuine and effective as the board may from time to time prescribe, upon payment of all applicable taxes and any fees prescribed by the board, upon compliance with such restrictions on transfer as are authorized by the articles and upon satisfaction of any lien referred to in section 8.05.
8.04
Transfer Agents and Registrars. The board may from time to time appoint one or more agents to maintain, in respect of each class of securities of the Corporation issued by it in registered form, a central securities register and one or more branch securities registers. Such a person may be designated as transfer agent or registrar according to such persons functions and one person may be designated both registrar and transfer agent. The board may at any time terminate such appointment.
8.05
Lien for Indebtedness. If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to any other provision of the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
8.06
Non-recognition of Trusts. Subject to the provisions of the Act, the Corporation may treat the person in whose name a share is registered in the securities register as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payments in respect of the share and otherwise to exercise all the rights and powers of an owner.
8.07
Share Certificates. Every holder of one or more shares of the Corporation shall be entitled, at the shareholders option, to a share certificate, or to a non-transferable written certificate of acknowledgment of such shareholders right to obtain a share certificate, stating the number and class or series of shares held by such shareholder as shown on the securities register. Such certificates shall be in such form as the board shall from time to time approve. Any such certificate shall be signed in accordance with section 2.03 and need not be under corporate seal; provided that, unless the board otherwise determines, certificates in respect of which a transfer agent and/or registrar has been appointed shall not be valid unless countersigned by or on behalf of such transfer agent and/or registrar. The signature of one of the signing officers or, in the case of certificates which are not valid unless countersigned by or on behalf of a transfer agent and/or registrar, the signatures of both signing officers, may be printed or mechanically reproduced in facsimile upon certificates and every such facsimile signature shall for all purposes be deemed to be the signature of the officer whose signature it reproduces and shall be binding upon the Corporation. A certificate executed as aforesaid shall be valid notwithstanding that one or both of the officers whose facsimile signature appears thereon no longer holds office at the date of issue of the certificate.
8.08
Replacement of Share Certificates. The board or any officer or agent designated by the board may in its or such persons discretion direct the issue of a new share certificate or certificate of acknowledgment in lieu of and upon cancellation of a certificate that has been mutilated or in substitution for a certificate claimed to have been lost, destroyed or wrongfully taken on payment of such fee, not exceeding the amount prescribed by regulation for the issuing of a share certificate in respect of a transfer, and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the board may from time to time prescribe, whether generally or in any particular case.
8.09
Joint Shareholders. If two or more persons are registered as joint holders of any share, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such share.
8.10
Deceased Shareholders. In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make payment of any dividends thereon except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents.
PART IX
DIVIDENDS AND RIGHTS
9.01
Dividends. Subject to the provisions of the Act and the articles, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interest in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation.
9.02
Dividend Cheques. A dividend payable in money shall be paid by cheque drawn on the Corporation's bankers or one of them to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at his or her recorded address, unless such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their recorded address. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.
9.03
Non-receipt of Cheques. In the event of non-receipt of any dividend cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the board may from time to time prescribe, whether generally or in any particular case.
9.04
Record Date for Dividends and Rights. The board may fix in advance a date, preceding by not more than 60 days, or such other period as may be prescribed by regulation, the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, and notice of any such record date shall be given not less than 7 days before such record date, or such other period as may be prescribed by regulation, in the manner provided by the Act. If no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the board.
9.05
Unclaimed Dividends. Any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
PART X
MEETINGS OF SHAREHOLDERS
10.01
Annual Meetings. The annual meeting of shareholders shall be held at such time in each year and, subject to section 10.03, at such place as the board may from time to time determine, for the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing an auditor and transacting such other business as may properly be brought before the meeting.
10.02
Special Meetings. The board, the chairman of the board, the managing director or the president shall have power to call a special meeting of shareholders at any time.
10.03
Place of Meetings. Meetings of shareholders shall be held at the registered office of the Corporation or elsewhere in the province in which the registered office is situate or, if the board shall so determine, at some other place in Canada or, at some place outside Canada if such place is specified in the articles or all the shareholders entitled to vote at the meeting so agree.
10.04
Participation by Electronic Means. If the Corporation chooses to make available a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during a meeting of shareholders, any person entitled to attend such meeting may participate in the meeting by means of such telephonic, electronic or other communication facility in the manner provided by the Act and the regulations. A person participating in a meeting by such means is deemed to be present at the meeting. Notwithstanding any other provision of this by-law, any person participating in a meeting of shareholders pursuant this section who is entitled to vote at that meeting may vote, in accordance with the Act and the regulations, by means of any telephonic, electronic or other communication facility that the Corporation has made available for that purpose.
10.05
Meeting Held by Electronic Means. Notwithstanding section 10.03, if the directors or shareholders of the Corporation call a meeting of shareholders pursuant to the Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held, in accordance with the Act and the regulations, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. Notwithstanding any other provision of this by-law, any person participating in a meeting of the shareholders pursuant this section who is entitled to vote at that meeting may vote, in accordance with the Act and the regulations, by means of any telephonic, electronic or other communication facility that the Corporation has made available for that purpose.
10.06
Notice of Meetings. Notice of the time and place of each meeting of shareholders shall be given in the manner provided in section 11.01 not more than 60 days nor less than 21 days before the date of the meeting, or within such other period as may be prescribed by regulation, to each director, to the auditor and to each shareholder who at the close of business on the record date for notice is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditor's report, election of directors and reappointment of the incumbent auditor shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.
10.07
List of Shareholders Entitled to Notice. For every meeting of shareholders, the Corporation shall prepare within the time specified by the Act a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder. If a record date for notice of the meeting is fixed pursuant to section 10.09, the shareholders listed shall be those registered at the close of business on such record date. If no record date for notice is so fixed, the shareholders listed shall be those registered (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given. The list shall be available for examination by any shareholder during usual business hours at the registered office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared.
10.08
List of Shareholders Entitled to Vote. For every meeting of shareholders, the Corporation shall prepare within the time specified by the Act a list of shareholders entitled to vote at the meeting, arranged in alphabetical order and showing the number of shares which each such shareholder is entitled to vote at the meeting. If a record date for voting is fixed pursuant to section 10.10, the shareholders listed shall be those registered at the close of business on such record date. If no record date for voting is so fixed, the shareholders listed shall be those registered at the close of business on the record date for notice fixed pursuant to section 10.09. If no record date for voting is fixed pursuant to section 10.10 and no record date for notice is fixed pursuant to section 10.09, the shareholders listed shall be those registered (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given. The list shall be available for examination by any shareholder during usual business hours at the registered office of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared.
10.09
Record Date for Notice. The board may fix in advance a date, preceding the date of any meeting of shareholders by not more than 60 days and not less than 21 days, or such other period as may be prescribed by regulation, as a record date for the determination of the shareholders entitled to notice of the meeting, and notice of any such record date shall be given not less than 7 days before such record date, or such other period as may be prescribed by regulation, by newspaper advertisement in the manner provided in the Act. If no record date for notice is so fixed, the record date for the determination of the shareholders entitled to notice of the meeting shall be (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given.
10.10
Record Date for Voting. The board may fix in advance a date, preceding the date of any meeting of shareholders by not more than 60 days and not less than 21 days, or such other period as may be prescribed by regulation, as a record date for the determination of the shareholders entitled to vote at the meeting, and notice of any such record date shall be given not less than 7 days before such record date, or such other period as may be prescribed by regulation, by newspaper advertisement in the manner provided in the Act. If no record date for voting is so fixed, the record date for the determination of the shareholders entitled to vote at the meeting shall be at the close of business on the record date for notice fixed pursuant to section 10.09. If no record date for voting is fixed pursuant to this section and no record date for notice is fixed pursuant to section 10.09, the record date for the determination of the shareholders entitled to vote at the meeting shall be (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given.
10.11
Meetings without Notice. A meeting of shareholders may be held at any time and place permitted by the Act or the articles or the by-laws without notice or on shorter notice than that provided for herein, and proceedings thereat shall not be invalidated (a) if all the shareholders entitled to vote thereat are present in person or represented or if those not so present or represented have received notice, or before or after the meeting or the time prescribed for the notice thereof, in writing waive notice of or accept short notice of such meeting, and (b) if the auditors and the directors are present or if those not present have received notice or, before or after the meeting or the time prescribed for notice thereof, in writing waive notice of or accept short notice of such meeting. If the meeting is held at a place outside Canada, shareholders not present or represented, but who have waived notice of or accepted short notice of such meeting, shall also be deemed to have consented to the meeting being held at such place.
10.12
Chairman, Secretary and Scrutineers. The chairman of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed who is present at the meeting: president, managing director, chairman of the board, or a vice-president who is a director. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers, who need not be shareholders, may be appointed by a resolution or by the chairman with the consent of the meeting.
10.13
Persons Entitled to Attend. The only persons entitled to attend a meeting of shareholders shall be those entitled to vote thereat, the chairman of the board (if any), the president, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to attend the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting.
10.14
Quorum. Subject to the provisions of the Act, a quorum for the transaction of business at any meeting of shareholders shall be two person present in person being a shareholder entitled to vote thereat or a duly appointed representative or proxyholder for an absent shareholder so entitled, and holding or representing in the aggregate not less than a majority of the outstanding shares of the Corporation entitled to vote at the meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.15
Right to Vote. Subject to the provisions of the Act as to authorized representatives of any other body corporate or association and restrictions on intermediary voting, for any meeting of shareholders every person who is named in the list of shareholders entitled to vote prepared for purposes of such meeting, shall be entitled to vote the shares shown opposite such persons name. For any meeting of shareholders where a list of shareholders entitled to vote has not been prepared for purposes of such meeting, the names of the persons appearing in the securities register at the close of business on the record date for voting as the holders of one or more shares carrying the right to vote at such meeting, shall be deemed to be the list of shareholders entitled to vote for purposes of such meeting.
10.16
Proxyholders and Representatives. Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder, or one or more alternate proxyholders, who need not be shareholders, to attend and act at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or such shareholders attorney and shall conform with the requirements of the Act. Every such shareholder which is a body corporate or association may by resolution of its directors or governing body authorize an individual who need not be a shareholder to represent it at a meeting of shareholders and such individual may exercise on the shareholder's behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting.
10.17
Time for Deposit of Proxies. The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours exclusive of non-business days, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time is specified in such notice, if it has been received by the secretary of the Corporation or by the chairman of the meeting or any adjournment thereof prior to the time of voting.
10.18
Joint Shareholders. If two or more persons hold shares jointly, any one of them present in person or represented at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented and vote, they shall vote as one the shares jointly held by them.
10.19
Votes to Govern. At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by law, be determined by a majority of the votes cast on the question. In case of an equality of votes either upon a show of hands, upon a ballot or upon results of electronic voting, the chairman of the meeting shall be entitled to a casting vote.
10.20
Show of Hands. Subject to the provisions of the Act any question at a meeting of shareholders shall be decided by a show of hands unless a ballot thereon is required or demanded as hereinafter provided. Upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been taken upon a question, unless a ballot thereon is so required or demanded, a declaration by the chairman of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the shareholders upon the said question.
10.21
Ballots. On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairman may require a ballot or any person present and entitled to vote on such question at the meeting may demand a ballot. A ballot so required or demanded shall be taken in such manner as the chairman shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which he or she is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon the said question.
10.22
Electronic Voting. If the Corporation chooses to make available a telephonic, electronic or other communication facility, in accordance with the Act and the regulations, that permits shareholders to vote by means of such facility then, notwithstanding any other provision of this by-law, any vote may be held, in accordance with the Act and the regulations, entirely by means of such facility.
10.23
Adjournment. If a meeting of shareholders is adjourned for less than 30 days, it shall not be necessary to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned. If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.24
Resolution in Writing. A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders unless a written statement with respect to the subject matter of the resolution is submitted by a director or the auditors in accordance with the Act.
10.25
Only One Shareholder. Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.
PART XI
NOTICES
11.01
Method of Giving Notices. Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the regulations, the articles, the by-laws or otherwise to a shareholder, director, officer, auditor or member of a committee of the board shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to such persons recorded address or if mailed to such person at such persons recorded address by prepaid ordinary or air mail or if sent to such person at his or her recorded address by facsimile or if provided in the form of an electronic document in accordance with section 12.01. A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been given when deposited in a post office or public letter box; a notice so sent by facsimile shall be deemed to have been given when transmitted; and a notice provided in the form of an electronic document shall be deemed to have been given at the time determined in accordance with section 12.01. The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the board in accordance with any information believed by the secretary to be reliable.
11.02
Notice to Joint Shareholders. If two or more persons are registered as joint holders of any share, any notice shall be addressed to all of such joint holders but notice to one of such persons shall be sufficient notice to all of them.
11.03
Computation of Time. In computing the date when notice must be given under any provision requiring a specified number of days' notice of any meeting or other event, the date of giving the notice shall be excluded and the date of the meeting or other event shall be included.
11.04
Undelivered Notices. If any notice given to a shareholder pursuant to section 11.01 is returned on two consecutive occasions because such shareholder cannot be found, the Corporation shall not be required to give any further notices to such shareholder until such shareholder informs the Corporation in writing of his or her new address.
11.05
Omissions and Errors. The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.
11.06
Persons Entitled by Death or Operation of Law. Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom such person derives title to such share prior to such persons name and address being entered on the securities register (whether such notice was given before or after the happening of the event upon which such person became so entitled) and prior to such person furnishing to the Corporation the proof of authority or evidence of entitlement prescribed by the Act.
11.07
Waiver of Notice. Any shareholder, proxyholder, other person entitled to attend a meeting of shareholders, director, officer, auditor or member of a committee of the board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to such person under any provision of the Act, the regulations thereunder, the articles, the by-laws or otherwise and such waiver or abridgement, whether given before or after the meeting or other event of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board or of a committee of the board which may be given in any manner.
PART XII
DOCUMENTS IN ELECTRONIC FORM
12.01 Documents in Electronic Form. Subject to any additional conditions set out in section 12.02 below, a requirement under the Act, the regulations or these by-laws to provide a person with a notice, document or other information may be satisfied by the provision of an electronic document, provided that:
(v)
the addressee has consented, in the manner prescribed by regulation, if any, and has designated an information system for the receipt of electronic documents;
(w)
the electronic document is provided to the designated information system, unless otherwise prescribed by regulation; and
(x)
any other requirements of the regulations have been complied with.
An addressee may revoke the consent referred to in subsection 12.01 (a) above. Nothing in this Part XII shall require a person to create or otherwise provide an electronic document. Except where a notice, document or other information must be sent to a specific place (such as a registered address), an electronic document need not be sent to the designated information system if (i) the document is posted on or made available through a generally accessible electronic source, such as a web site; and (ii) the addressee is provided with notice in writing of the availability and location of that electronic document. An electronic document shall be considered to have been received when it enters the information system designated by the addressee or if the document is posted on or made available through a generally accessible electronic source, when it is accessed by the addressee.
12.02 Where Documents to be Created in Writing. Where the Act or regulations expressly require that a notice, document or other information be created in writing, such requirement shall be satisfied by the creation of an electronic document provided that, in addition to the conditions set out in section 12.01 above:
(y)
the information in the electronic document is accessible so as to be usable for subsequent reference; and
(z)
any other requirements of the regulations have been complied with.
12.03 Where Documents to be Provided in Writing. Where the Act or regulations expressly require that a notice, document or other information be provided in writing, such requirement shall be satisfied by the provision of an electronic document provided that, in addition to the conditions set out in section 12.01 above:
(aa)
the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and
(bb)
any other requirements of the regulations have been complied with.
PART XIII
EFFECTIVE DATE
13.01
Effective Date. This by-law shall be effective when made by the board.
13.02
Repeal. By-laws (and any amendments thereto) of the Corporation are repealed as of the effective date of this by-law. Such repeal shall not affect the previous operation of any by-law so repealed or affect the validity of any act done or right, privilege, obligation or liability acquired or incurred under, or the validity of any contract or agreement made pursuant to, or the validity of any articles (as defined in the Act) or predecessor charter documents of the Corporation obtained pursuant to any such by-law prior to its repeal. All officers and persons acting under any by-law so repealed shall continue to act as if appointed under the provisions of this by-law and all resolutions of the shareholders or the board with continuing effect passed under any repealed by-law shall continue good and valid except to the extent inconsistent with this by-law and until amended or repealed.
PASSED by the board of Directors as of the 10 th day of March, 2005.
Secretary A. W. Oughtred |
|
CONFIRMED by the shareholders in accordance with the Act as of the 9 th day of May, 2005.
Secretary A. W. Oughtred |
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AMENDMENT NO. 5
TO
OPPENHEIMER HOLDINGS INC.
1996 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED
AS AT MAY 17, 1999 (THE "PLAN")
1.
Subject to the approval of the holders of the Class A non-voting shares (the "Class A Shares") and the Class B voting shares of the Corporation voting together at the annual and special meeting of shareholders of the Corporation to be held on May 9, 2005 (or at any adjournment thereof), effective February 25, 2005, the Plan be amended by increasing the number of Class A Shares which may be issued pursuant to Awards granted under the Plan by 400,000 Class A Shares from 4,615,000 Class A Shares to 5,015,000 Class A Shares.
2.
Effective April 27, 2005 the Plan be amended by deleting subsections (b) and (c) of Section 3 and substituting the following therefor:
"(b)
When used herein the term "insider" shall have the same meaning as contained in the Securities Act of Ontario and the term "security based compensation arrangements" shall have the meaning ascribed thereto in Section 613 of the Toronto Stock Exchange Company Manual.
(c)
(i) The number of Class A Shares issuable to insiders, at any time, under the Plan and under all other security based compensation arrangements of the Corporation, may not exceed 10% of the issued and outstanding Class A Shares at such time.
(ii) The number of Class A Shares issued to insiders, within any one twelve-month period, under the Plan and under all other security based compensation arrangements of the Corporation, may not exceed 10% of the issued and outstanding Class A Shares."
The amendment in section 1 above was approved unanimously by the Board of Directors of Oppenheimer Holdings Inc. on March 10, 2005 and confirmed by the holders of the Class A non-voting shares and the Class B voting shares of the Corporation voting together at the Annual and Special Meeting of Shareholders of Oppenheimer Holdings Inc. held on May 9, 2005.
The amendment in section 2 above was approved unanimously by the Board of Directors of Oppenheimer Holdings Inc. on April 27, 2005 in accordance with the provisions of the Plan.
" Á.W. Oughtred"
A. Winn Oughtred, Secretary
Oppenheimer Holdings Inc.
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AMENDED AND RESTATED
PERFORMANCE-BASED COMPENSATION AGREEMENT
THIS AGREEMENT, dated as of the 15th day of March, 2005, amends and restates the Agreement dated as of the 1st day of January, 2001 between OPPENHEIMER HOLDINGS INC. (then called FAHNESTOCK VINER HOLDINGS INC.) ( Holdings ) and ALBERT G. LOWENTHAL ( Lowenthal ).
W I T N E S S E T H :
WHEREAS, Lowenthal is employed by Oppenheimer & Co. Inc. (formerly Fahnestock & Co. Inc.), a wholly-owned subsidiary of Holdings (the Company ), and Holdings as their respective Chief Executive Officer and serves as Chairman of their respective Boards of Directors; and
WHEREAS, the Compensation and Stock Option Committee (the Committee ) of the Board of Directors of Holdings (the Board ) has determined that it is in the best interests of the Company and Holdings to provide a portion of the compensation for Lowenthals services during the Term hereof in a manner that aligns the compensation of Lowenthal with the performance of the Company and Holdings, the long-term interests of the shareholders of Holdings and the compensation paid to other chief executive officers of comparable financial service companies;
NOW, THEREFORE, in consideration of the premises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Holdings and Lowenthal agree as follows:
1.
Definitions.
(a)
Class A Stock means the Class A non-voting shares of Holdings.
(b)
Market Value of a share of Class A Stock as of a determination date means its closing price on the New York Stock Exchange on such date or, if such date is not a trading day, on the trading day next preceding such determination date.
(c)
Performance Award means the written performance goal established with respect to a Performance Year pursuant to Section 2.
(d)
Performance Award Amount means the amount of performance-based compensation determined pursuant to the terms of a Performance Award.
(e)
Performance Year means a calendar year during the Term.
(f)
Term means the period commencing on January 1, 2001 and ending on December 31, 2010.
2.
Performance Awards.
On or before the 90th day of each Performance Year, the Committee shall establish a written performance goal (the Performance Award ) with respect to such Performance Year. Such Performance Award shall be in the form of a written formula pursuant to which the Performance Award Amount shall be determined based upon the degree of attainment in such Performance Year of targets expressed in terms of one or more of the following factors: Holdings return on equity, Holdings consolidated net profit, and, the increase in the Market Value of a share of Class A Stock from the date the Committee establishes the performance goal (or, if later, January 1 of the Performance Year) to December 31 of the Performance Year. Except to the extent otherwise provided in this Agreement, the Company shall pay Lowenthal in cash the Performance Award Amount within five (5) days after the Committees certification for each award in accordance with Section 3 following the end of each Performance Year.
3.
Administration.
The procedures with respect to Performance Awards made under this Agreement shall be administered by the Committee. The Committee shall at all times consist of two or more members and shall be constituted in such a manner as to satisfy the requirements of applicable law, the provisions of Rule 16B-3 under the Securities Exchange Act of 1934 or any successor rule, and the provisions of Section 162(m)(4)(C)(i) of the Internal Revenue Code of 1986, as amended (the Code ). The Committee shall have full power and authority to grant awards hereunder and to administer and interpret this Agreement and to adopt such rules, regulations and guidelines as it deems necessary or advisable to give effect to the purpose and intent of this Agreement. Prior to payment of any Performance Award payable hereunder with respect to any Performance Year the Committee shall certify as to the degree to which the performance goals underlying the Performance Award have been attained for such Performance Year. Certification by the Committee shall be made by March 15 of each Performance Year.
4.
Performance Award Amount Limitation
In no event may the Performance Award Amount with respect to any Performance Year during the Term exceed $5,000,000.
5.
Termination of Employment.
(a)
If prior to the end of a Performance Year Lowenthals employment with the Company or Holdings terminates for any reason (including death or permanent disability) other than the termination of his employment for Cause (as defined in subsection (b)), in lieu of any payments otherwise payable under this Agreement with respect to such Performance Year Lowenthal or his estate, on the later of five (5) days after the Committees certification in accordance with Section 3 following the end of the Performance Year in which termination occurs or six (6) months and one (1) day after the date of termination, shall be paid the sum of the following: (i) the amount that would be owed to Lowenthal with respect to the Performance Award (other than the portion thereof described in clause (ii)) for such Performance Year multiplied by a fraction, the numerator of which is the number of actual days of the year to the date of such termination and the denominator of which is 365 and (ii) with respect to the portion (if any) of the Performance Award attributable to appreciation in the Market Value of Class A Stock, the amount that would be owed to Lowenthal with respect to the stock appreciation amount using the Market Value of the Class A Stock on such termination date rather than December 31 of the Performance Year; provided , however , that any such payment of a Performance Award Amount shall be subject to the limit set forth in Section 4 and the prior certification of the Committee as set forth in Section 3.
(b)
If prior to the end of a Performance Year, Lowenthals employment is terminated for Cause, his right to receive any payment under this Agreement with respect to such Performance Year shall be forfeited. For purposes of this Agreement, Cause means (i) conviction of a felony involving theft or moral turpitude, or (ii) a determination by the Board that Lowenthal has engaged in conduct that constitutes wilful gross neglect or wilful gross misconduct with respect to his duties which results in material economic harm to Holdings or the Company; provided , however , that for purposes of determining whether conduct constitutes wilful gross misconduct, no act on Lowenthals part shall be considered wilful unless it is done by him in bad faith and without reasonable belief that his action was in the best interests of Holdings and the Company.
6.
Deferral Election.
Notwithstanding anything to the contrary herein, to the extent that Lowenthal makes an election in accordance with the terms of the Oppenheimer & Co. Inc. Executive Deferred Compensation Plan (the Plan ) to defer payment of all or a portion of a Performance Award Amount, such deferred portion (together with interest and earnings thereon as determined pursuant to the terms of the Plan) will be paid at the time and in the manner provided under the Plan.
7.
Effectiveness of Agreement.
This Agreement shall be effective as of the date of its adoption by the Committee, subject to approval thereof at a meeting of shareholders by the holders of a majority of the Class B voting shares of the Holdings (the Class B Shares ) present and entitled to vote at the meeting. This Agreement amends and restates the Performance-Based Compensation Agreement between Holdings and Lowenthal dated as of January 1, 2001, which shall be of no further force and effect after January 1, 2005 except as it applies to performance years ending on or before such date.
8.
Interpretation.
No provision of this Agreement may be altered or waived except in a writing executed by the parties hereto. This Agreement constitutes the entire agreement between the parties hereto and no party shall be bound by any warranties, representations or guarantees, except as specifically set forth in this Agreement. This Agreement shall be interpreted under the law of the State of New York without giving effect to the conflict of law provisions thereof.
9.
Arbitration.
Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement which cannot be resolved by Lowenthal and Holdings shall, at the instance of either Lowenthal or Holdings, be submitted to arbitration in accordance with New York law and the procedures of the New York Stock Exchange. The determination of the arbitrator shall be conclusive and binding on Holdings and Lowenthal and judgment may be entered on the arbitrators award in any court having jurisdiction.
10.
Assignability.
The respective rights and obligations of Lowenthal and Holdings under this Agreement shall inure to the benefit of and be binding upon the heirs and legal representatives of Lowenthal and the successors and assigns of Holdings.
IN WITNESS WHEREOF, Holdings and Lowenthal have executed this Agreement as of the day and year first above written.
OPPENHEIMER HOLDINGS INC.
By:
Name:
Title:
Albert G. Lowenthal, individually
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
The undersigned, Albert G. Lowenthal, Chairman and Chief Executive Officer, and Elaine K. Roberts, President and Chief Financial Officer, of Oppenheimer Holdings Inc. (the "Company"), each hereby certifies that to his/her knowledge the Quarterly Report on Form 10-Q for the period ended June 30, 2005 of the Company filed with the Securities and Exchange Commission on the date hereof (the Report) fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the period specified.
Signed at the New York, New York, this 9th day of August, 2005
A.G. Lowenthal
Albert G. Lowenthal
Chairman and Chief Executive Officer
E.K. Roberts
Elaine K. Roberts
President and Chief Financial Officer
1
CERTIFICATION EXHIBIT 31.1
I, Albert G. Lowenthal, certify that:
1. |
I have reviewed this quarterly report on Form 10-Q of Oppenheimer Holdings Inc.; |
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2. |
Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; |
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4. |
The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have: |
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a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; |
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b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this quarterly l report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by the quarterly report based on such evaluation; |
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d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
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5. |
The registrants other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent function): |
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a) all significant deficiencies in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial data; and |
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b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
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A.G. Lowenthal |
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Name: Albert G. Lowenthal |
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Title: Chief Executive Officer |
August 9, 2005
1
CERTIFICATION EXHIBIT 31.2
I, Elaine K. Roberts, certify that:
1. |
I have reviewed this quarterly report on Form 10-Q of Oppenheimer Holdings Inc.; |
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2. |
Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; |
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4. |
The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have: |
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a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; |
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b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this quarterly l report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by the quarterly report based on such evaluation; |
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d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
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5. |
The registrants other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent function): |
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a) all significant deficiencies in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial data; and |
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b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
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E.K. Roberts |
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Name: Elaine K. Roberts |
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Title: Chief Financial Officer |
August 9, 2005
1
SCHEDULE / ANNEXE A
An unlimited number of First Preference Shares, issuable in series;
An unlimited number of Class A non-voting shares; and
99,680 Class B voting shares.
The rights, privileges, restrictions and conditions attaching to each class of shares are as follows:
1.
First Preference Shares
The First Preference Shares shall, as a class, have attached thereto the following rights, privileges, restrictions and conditions:
(a)
Directors' Right to Issue in One or More Series
The First Preference Shares may at any time and from time to time be issued in one or more series, each series to consist of such number of shares as may, before the issue thereof, be fixed by resolution of the board of directors of the Corporation. The board of directors of the Corporation shall (subject as hereinafter provided) by resolution duly passed before the issue of any First Preference Shares of any series, determine the designation of and the rights, privileges, restrictions and conditions to be attached to the First Preference Shares of any such series, including, but without in any way limiting or restricting the generality of the foregoing, the rate or amount of dividends or the method of calculating dividends whether cumulative, non cumulative or partially cumulative, the date or dates and place or places of payment thereof, conversion rights (if any), the consideration and the terms and conditions of any redemption, including any sinking fund provisions, or purchase by the Corporation thereof, and the restrictions (if any) respecting payment of dividends on or the return of capital in respect of any shares ranking junior to the First Preference Shares.
(b)
Ranking of First Preference Shares
The First Preference Shares of each series shall rank on a parity with the First Preference Shares of every other series, and shall be entitled to a preference over the Class A non voting shares and the Class B voting shares of the Corporation and over any other shares ranking junior to the First Preference Shares with respect to priority in payment of dividends and the distribution of assets or return of capital in the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, or any other distribution of the assets or return of capital of the Corporation among its shareholders for the purpose of winding up its affairs, and the First Preference Shares of each series may also be given such other preferences not inconsistent with the provisions of these articles over the Class A non voting shares and the Class B voting shares of the Corporation and any other shares ranking junior to the First Preference Shares as may be determined in the case of each series authorized to be issued. When any cumulative dividends or amounts payable on a return of capital in respect of a series of First Preference Shares are not paid in full, the First Preference Shares of all series shall participate rateably in respect of such dividends, including accumulations, if any, in accordance with the sums that would be payable on such shares if all such dividends were declared and paid in full, and on any return of capital in accordance with the sums that would be payable on such return of capital if all sums so payable were paid in full; provided, however, that in the event of there being insufficient assets to satisfy in full all such claims as aforesaid, the claims of the holders of such shares with respect to return of capital shall first be paid and satisfied and any assets remaining thereafter shall be applied towards the payment and satisfaction of claims in respect of dividends.
(c)
Voting Rights
(i)
Unless the directors otherwise determine by resolution, the holders of shares of a series of First Preference Shares, as such, shall not be entitled to receive notice of or to attend or vote at meetings of shareholders of the Corporation except that holders of shares of any series of First Preference Shares shall be entitled to notice of meetings of shareholders called for the purpose of authorizing the dissolution of the Corporation or the sale of its undertaking or a substantial part thereof and, where entitled by law, holders of First Preference Shares of all series shall be entitled to notice of and to vote at meetings of shareholders with each First Preference Share entitling the holder thereof to one vote per share.
(ii)
The holders of the First Preference Shares as a class, or, of a series of First Preference Shares, as such, shall not be entitled to vote separately as a class or series or to dissent under the Canada Business Corporations Act and any statute that may be substituted therefor, as from time to time amended (hereinafter the Act) upon a proposal to amend the Articles to:
(A)
increase or decrease any maximum number of authorized First Preference Shares, or increase any maximum number of authorized shares of a class or series having rights or privileges equal or superior to the First Preference Shares or any series thereof; or
(B)
create a new class or series of shares equal or superior to the First Preference Shares;
or to dissent under the Act upon a proposal to amend the Articles to effect an exchange, reclassification or cancellation of all or part of the First Preference Shares or any series thereof
2.
Class A non voting shares and Class B voting shares
(a)
Ranking of Class A non voting shares and Class b voting shares
Subject as herein provided and to the rights, privileges, restrictions and conditions attaching to any other class of shares of the Corporation, the Class A non voting shares and the Class B voting shares shall rank equally with each other in all respects including the right to receive dividends and to receive the remaining property of the Corporation 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 purposes of winding up its affairs.
(b)
Voting - Class B voting shares
(i)
The holders of the Class B voting shares, as such, shall be entitled to vote at all meetings of shareholders, except meetings at which only holders of a specified class, other than Class B voting shares, or a specified series of shares are entitled to vote and shall be entitled to one vote for each Class B voting share held.
(ii)
Holders of Class B voting shares, as such, shall not be entitled to vote separately as a class or to dissent under the Act upon a proposal to amend the Articles to:
(A)
increase or decrease any maximum number of authorized Class B voting shares or increase any maximum number of authorized shares of a class of shares having rights or privileges equal or superior to the Class B voting shares; or
(B)
create a new class or series of shares equal or superior to the Class B voting shares;
or to dissent under the Act upon a proposal to amend the Articles to effect an exchange, reclassification, or cancellation of all or a part of the Class B voting shares.
(c)
Voting - Class A non voting shares
(i)
Except where entitled by law holders of Class A non voting shares, as such, shall not be entitled to vote at meetings of shareholders of the Corporation.
(ii)
Where entitled by law to vote at meetings of shareholders of the Corporation holders of Class A non voting shares shall be entitled to one vote for each Class A non voting share held.
SCHEDULE / ANNEXE B
none
SCHEDULE / ANNEXE C
none
SCHEDULE / ANNEXE D
Incorporated on November 16, 1933 under the laws of British Columbia; and Continued on October 12, 1977 under the laws of Ontario.
SCHEDULE / ANNEXE E
3.
The board of directors may from time to time on behalf of the corporation, without authorization of the shareholders:
(a)
borrow money on the credit of the corporation;
(b)
issue, reissue, sell, pledge or hypothecate bonds, debentures, notes or other evidences of indebtedness or guarantee of the corporation, whether secured or unsecured;
(c)
give a guarantee on behalf of the corporation to secure performance of any present or future indebtedness, liability or obligation of any person; and
(d)
mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or any guarantees or any other present or future indebtedness, liability or obligation of the corporation.
4.
The board of directors may from time to time delegate to such one or more of the directors and officers of the corporation as may be designated by the board all or any of the powers conferred on the board above to such extent and in such manner as the board shall determine at the time of such delegation.
5.
All meetings of the Directors and Shareholders may be held in Canada or outside Canada.
6.
The directors or the shareholders may by resolution from time to time determine the number of directors to be elected at an annual meeting, within such minimum and maximum number of directors. The directors or shareholders may by resolution passed at a meeting specially called for such purpose remove any director from office and the vacancy created by such removal may be filled at the same meeting.
7.
The directors may appoint one or more additional directors, in addition to the maximum number of directors provided for in the articles, 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.