MEMORANDUM OF ASSOCIATION
OF
YOGEN FRUZ WORLD-WIDE INCORPORATED
1. The name of the Company is Yogen Fruz World-Wide Incorporated.
2. There are no restrictions on the objects and powers of the Company and the
Company shall expressly have the following powers:
(1) to sell or dispose of its undertaking, or a substantial part thereof;
(2) to distribute any of its property in specie among its members; and
(3) to amalgamate with any company or other body of persons.
3. The liability of the members is limited.
4. The capital of the company shall consist of 200,000,000 Subordinate Voting
Shares and 200,000,000 Multiple Voting Shares, each having the rights,
conditions, restrictions and limitations described in Annex I hereto and
all without nominal or par value, with the power to divide the shares in
the capital for the time being into classes or series and to attach thereto
respectively any preferred, deferred or qualified rights, privileges or
conditions, including restrictions on voting rights and including
redemption, purchase and other acquisition of such shares, subject,
however, to the provisions of the Companies Act (Nova Scotia).
ANNEX 1
A. The Multiple Voting Shares and the Subordinate Voting Shares shall have
attached thereto the following rights, privileges, restrictions and
conditions:
(a) Dividends
The Subordinate Voting Shares shall rank in priority to the Multiple
Voting Shares as to the payment of cash dividends. No dividends shall be
declared or paid on the Multiple Voting Shares in any fiscal year of the
Company unless in such fiscal year dividends shall have been declared or
paid on the Subordinate Voting Shares in an amount per share at least
equal to or equivalent to the amount of the dividend per share proposed
to be declared or paid on the Multiple Voting Shares.
(b) Subdivisions, Consolidations and Other Changes
In no event shall:
(i) any subdivision, consolidation, reclassification or other
change in the Multiple Voting Shares or the Subordinate
Voting Shares; or
(ii) any reorganization of the share capital of the Company
affecting in any manner the Multiple Voting Shares or the
Subordinate Voting Shares; or
(iii) an amalgamation or merger of the Company with any other
company or companies;
be effected unless appropriate adjustments shall be made to the dividend
rights provided for in section (a), the voting rights provided for in
section (c), the dissolution rights provided for in section (e) and the
conversion rights provided for in sections (f) and (g) so as to preserve
the rights of the Multiple Voting Shares and the Subordinate Voting
Shares, inter se, in all respects.
(c) Voting Rights
(i) The holders of the Multiple Voting Shares shall be entitled
to receive notice of, attend (in person or by proxy) and
speak at all meetings of the shareholders of the Company
(other than separate meetings of the holders of shares of
any other class of shares of the Company or of any series
of shares of any such other class of shares) and at all
such meetings the holders of the Multiple Voting Shares
shall be entitled to ten (10) votes in respect of each
Multiple Voting Share held by them.
(ii) The holders of the Subordinate Voting Shares shall be
entitled to receive notice of, attend (in person or by
proxy) and speak at all meetings of the shareholders of the
Company (other than separate meetings of the holders of
shares of any
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other class of shares of the Company or of any series of
shares of any such other class of shares) and at all such
meetings the holders of the Subordinate Voting Shares shall
be entitled to one (1) vote in respect of each Subordinate
Voting Share held by them.
(d) Restrictions
The holders of the Multiple Voting Shares and the holders of the
Subordinate Voting Shares shall not as such be entitled to dissent in
respect of any amendment referred to in clauses 2(2)(a), (b) or (e) of
the Third Schedule to the Companies Act (Nova Scotia).
(e) Dissolutions
Subject to the prior rights of the shares of any other class ranking in
priority to the Multiple Voting Shares and the Subordinate Voting Shares,
and subject to the payment of all dividends which have been declared on
the Multiple Voting Shares or the Subordinate Voting Shares but remain
unpaid, in the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or any other distribution of
assets of the Company among its shareholders for the purpose of
winding-up its affairs, the holders of the Multiple Voting Shares and the
holders of Subordinate Voting Shares shall be entitled to receive the
remaining assets of the Company in equal amounts per share, without
preference or distinction.
(f) Conversion of Subordinate Voting Shares into Multiple Voting
Shares
(1) In this section (f), the following terms shall have the
following respective meanings:
"affiliate" has the meaning ascribed thereto in the
Securities Act (Ontario) as amended from time to time;
"associate" has the meaning ascribed thereto in the
Securities Act (Ontario) as amended from time to time;
"Conversion Period" means the period of time commencing on
the eighth day after the Offer Date and terminating on the
Expiry Date;
"Converted Shares" means the Multiple Voting Shares
resulting from the conversion of Subordinate Voting Shares
into Multiple Voting Shares pursuant to subsection (f)(2)
hereof;
"Exclusionary Offer" means a General Offer unless,
concurrently with such General Offer, an offer is made to
purchase Subordinate Voting Shares that is identical to the
General Offer in terms of price per share and percentage of
outstanding shares to be taken up exclusive of shares owned
immediately prior to the General Offer by the Offeror, and
in all other material respects except with respect to the
conditions that may be attached to the General Offer, with
no condition attached thereto other than the right not to
take up and pay for shares tendered if no shares are
purchased pursuant to the General Offer (for the purposes
hereof, the varying of any term of a General Offer shall be
deemed to constitute the making of a new General Offer
unless an identical variation is made to the corresponding
offer to purchase
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Subordinate Voting Shares);
"Expiry Date" means the last date upon which holders of
Multiple Voting Shares may accept an Exclusionary Offer;
"General Offer" means an offer to purchase Multiple Voting
Shares that must, by reason of applicable securities
legislation or the requirements of a stock exchange on
which the Multiple Voting Shares are listed, be made to all
or substantially all holders of Multiple Voting Shares who
are in a province of Canada to which the requirements
apply;
"Offer Date" means the date on which an Exclusionary Offer
is made;
"Offeror" means the person, company or other entity making
an Exclusionary Offer (the "bidder") and shall include all
associates and affiliates of the bidder and any person or
company that is disclosed in the offering document to be
acting jointly or in concert with the bidder, and
"transfer agent" means the transfer agent for the time
being for the Multiple Voting Shares.
(2) Subject to subsection (f)(5), if an Exclusionary Offer is
made, each outstanding Subordinate Voting Share shall be
convertible into one (1) fully paid and non-assessable
Multiple Voting Share at the option of the holder thereof
exercisable during the Conversion Period. The conversion
right provided for in this subsection (f)(2) shall be
exercised by notice in writing given to the transfer agent
accompanied by the certificate or certificates representing
the Subordinate Voting Shares which the holder desires to
convert, and such notice shall be executed by the person
registered on the books of the Company as the holder of the
Subordinate Voting Shares, or by his or her attorney duly
authorized in writing, and shall specify the number of
Subordinate Voting Shares which the holder desires to have
converted. The holder shall pay any governmental or other
tax imposed on or in respect of such conversion. Upon
receipt by the transfer agent of such notice and share
certificate or certificates, the Company shall issue or
cause to be issued a share certificate representing fully
paid Multiple Voting Shares and the transfer agent shall
deposit such share certificates in accordance with
subsection (f)(4). If less than all of the Subordinate
Voting Shares represented by any share certificate are to
be converted, the holder shall be entitled to receive a new
share certificate representing in the aggregate the number
of Subordinate Voting Shares represented by the original
share certificate which are not to be converted.
(3) An election by a holder of Subordinate Voting Shares to
exercise the conversion right provided for in subsection
(f)(2) shall be deemed to also constitute irrevocable
elections by such holder to:
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(a) deposit the Converted Shares pursuant to the
Exclusionary Offer (subject to such holder's right
to subsequently withdraw the shares from the offer
in accordance with the terms thereof and applicable
law); and
(b) exercise pursuant to section (g) hereof the right to
convert into Subordinate Voting Shares all Converted
Shares in respect of which such holder exercises his
or her right of withdrawal from the Exclusionary
Offer or which are not otherwise ultimately taken up
and paid for under the Exclusionary Offer.
Any conversion of Converted Shares into Subordinate Voting
Shares pursuant to such deemed election in respect of which
the holder exercises his or her right of withdrawal from
the Exclusionary Offer shall be effective at the time such
right of withdrawal is exercised. If the right of
withdrawal is not exercised, any conversion into
Subordinate Voting Shares pursuant to such deemed election
shall be effective (i) in respect of an Exclusionary Offer
which is completed, immediately following the time by which
the Offeror is required under applicable securities
legislation or otherwise to take up and pay for all shares
to be acquired by the Offeror under the Exclusionary Offer;
and (ii) in respect of an Exclusionary Offer which is
abandoned or withdrawn or is not completed in accordance
with its terms, at the time at which the Exclusionary Offer
is abandoned or withdrawn or expires without being
completed.
(4) No share certificates representing Converted Shares shall
be delivered to or to the order of the holders thereof
before such shares have been deposited pursuant to the
Exclusionary Offer and the transfer agent, on behalf of the
holders of the Converted Shares, shall deposit, and the
holders of such shares shall be deemed to have irrevocably
directed the transfer agent to deposit, pursuant to the
Exclusionary Offer, the certificate or certificates
representing the Converted Shares. Upon completion of the
offer, the transfer agent shall deliver or cause to be
delivered to the holders entitled thereto all consideration
paid by the Offeror pursuant to the offer in respect of
Converted Shares. If Converted Shares are converted into
Subordinate Voting Shares pursuant to the deemed election
under subsection (f)(3), the transfer agent shall deliver
to the holders entitled thereto a share certificate
representing the Subordinate Voting Shares resulting from
the conversion. The Company shall make all arrangements
with the transfer agent necessary or desirable to give
effect to this subsection (f)(4).
(5) Subject to subsection (f)(6), the conversion right provided
for in subsection (f)(2) shall not come into effect if,
within seven days after the Offer Date, there has been
delivered to the transfer agent and to the Secretary of the
Company a certificate or certificates signed by or on
behalf of one or more
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shareholders of the Company owning in the aggregate more
than 50% of the then outstanding Multiple Voting Shares,
exclusive of shares owned immediately prior to the Offer
Date by the Offeror, which certificate or certificates
shall, in the case of each such shareholder, confirm:
(a) the number of Multiple Voting Shares owned by the
shareholder;
(b) that such shareholder is not making the offer and is
not an associate or affiliate of, or acting jointly
or in concert with, the person or company making the
offer;
(c) that such shareholder will not tender any shares in
acceptance of the offer, including any varied form
of the offer, without giving the transfer agent and
the Secretary of the Company written notice of such
acceptance or intended acceptance at least seven
days prior to the Expiry Date; and
(d) that such shareholder shall not transfer any
Multiple Voting Shares, directly or indirectly,
prior to the Expiry Date without giving the transfer
agent and the Secretary of the Company written
notice of such transfer or intended transfer at
least seven days prior to the Expiry Date, which
notice shall state, if known to the transferor, the
names of the transferees and the number of Multiple
Voting Shares transferred or to be transferred to
each transferee.
(6) If a notice referred to in clause (f)(5) is given and the
conversion right provided for in subsection (f)(2) has not
come into effect, the transfer agent shall either forthwith
upon receipt of the notice or forthwith after the seventh
day following the Offer Date, whichever is later, determine
the number of Multiple Voting Shares in respect of which
there are subsisting certificates that comply with section
(f)(5). For the purpose of this determination, certificates
in respect of which such a notice has been filed shall not
be regarded as outstanding insofar as the Multiple Voting
Shares to which the notice relates are concerned; the
transfer that is the subject of any notice referred to in
clause (f)(5)(d) shall be deemed to have already taken
place at the time of the determination, and the transferee
in the case of any notice referred to in clause (f)(5)(d)
shall be deemed to be a person or company from whom the
transfer agent does not have a subsisting certificate
unless the transfer agent is advised of the identity of the
transferee, either by such notice or by the transferee in
writing and such transferee is a person or company from
whom the transfer agent has a subsisting certificate. If
the number of Multiple Voting Shares so determined does not
exceed 50% of the number of then outstanding Multiple
Voting Shares, exclusive of shares owned immediately prior
to the
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offer by the Offeror, subsection (f)(5) shall cease to
apply and the conversion right provided for in subsection
(f)(2) shall be in effect for the remainder of the
Conversion Period.
(7) In the event of:
(a) any subdivision, consolidation, conversion (other
than in accordance with sections (f) and (g)),
exchange or reclassification of the Multiple Voting
Shares or Subordinate Voting Shares; or
(b) any reorganization of the share capital of the
Company affecting the Multiple Voting Shares or
Subordinate Voting Shares; or
(c) the amalgamation of the Company with any other
company or companies,
the appropriate adjustment shall be made to the conversion
right provided in this section (f) so as to preserve the
right in all respects.
(8) As soon as is reasonably practicable after the seventh day
after the Offer Date, the Company shall send to each holder
of Subordinate Voting Shares a notice advising such holders
as to whether they are entitled to convert their
Subordinate Voting Shares into Multiple Voting Shares
pursuant to subsection (f)(2) and the reasons therefor. If
such notice discloses that the holders of Subordinate
Voting Shares are not so entitled but it is subsequently
determined that they are so entitled by virtue of
subsection (f)(5), or otherwise, the Company shall
forthwith send another notice to such holders advising them
of that fact and the reasons therefor.
(9) If a notice referred to in subsection (f)(8) discloses that
the conversion right provided for in subsection (f)(2) has
come into effect, the notice shall:
(i) include a description of the procedure to be
followed to effect the conversion and to have the
Converted Shares tendered under the offer;
(ii) include the information set out in subsection (f)(3)
hereof; and
(iii) be accompanied by a copy of the offer and all other
material sent to holders of Multiple Voting Shares
in respect of the offer, and as soon as is
reasonably practicable after any additional
material, including a notice of variation, is sent
to the holders of Multiple Voting Shares in respect
of the offer, the Company shall send a copy of such
additional material to each holder of Subordinate
Voting
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Shares.
(10) Prior to or forthwith after sending any notice referred to
in subsection (f)(8), the Company shall cause a press
release to be issued to a Canadian national news wire
service, describing the contents of the notice.
(g) Conversion of Multiple Voting Shares into Subordinate Voting
Shares
Each holder of Multiple Voting Shares shall be entitled at any
time and from time to time to have all or any part of the
Multiple Voting Shares held converted into fully-paid and
non-assessable Subordinate Voting Shares upon the basis of
one (1) Subordinate Voting Share for each Multiple Voting Share
in respect of which the conversion right is exercised. The
conversion right provided for in this section (g) shall be
exercised by notice in writing given to the transfer agent at
its principal office in Toronto accompanied by the certificate or
certificates representing the Multiple Voting Shares in respect
of which the holder desires to exercise such right of conversion.
Such notice shall be executed by the person registered on the
books of the Company as the holder of the Multiple Voting Shares
or by his or her duly authorized attorney and shall specify the
number of Multiple Voting Shares which the holder desires to have
converted into Subordinate Voting Shares. After the giving of a
notice in writing, the notice of the holder of Multiple Voting
Shares shall be irrevocable. The holder shall pay any governmental
or other tax imposed on or in respect of any such conversion. Upon
receipt by the transfer agent of such notice and a certificate or
certificates in respect thereof, the Company shall issue, or cause
to be issued to the holder so exercising the conversion right in
respect of Multiple Voting Shares, a certificate representing the
number of Subordinate Voting Shares to which such holder is
entitled upon the basis prescribed in accordance with the
provisions hereof. If less than all of the Multiple Voting Shares
represented by any certificate are to be converted, the holder
shall be entitled to receive a new certificate representing the
number of Multiple Voting Shares represented by the original
certificate which are not to be converted.
The right of a holder of Multiple Voting Shares to convert the
same into Subordinate Voting Shares shall be deemed to have been
exercised, and the registered holder of Multiple Voting Shares
shall be deemed to have become a holder of Subordinate Voting
Shares of record of the Company for all purposes on the date of
surrender of certificates representing the Multiple Voting Shares
to be converted accompanied by the notice in writing as provided
in this section (g), notwithstanding any delay in the delivery of
certificates representing the Subordinate Voting Shares into which
such Multiple Voting Shares have been converted.
(h) Equality
Save as aforesaid, each Multiple Voting Share and each Subordinate
Voting Share shall have the same rights, privileges, restrictions,
conditions and attributes and be the same in all respects.
ARTICLES OF ASSOCIATION
OF
YOGEN FRUZ WORLD-WIDE INCORPORATED
INTERPRETATION
1. In these Articles, unless there be something in the subject or context
inconsistent therewith:
(1) "Act" means the Companies Act (Nova Scotia);
(2) "Articles" means these Articles of Association of the Company and all
amendments hereto;
(3) "Company" means the company named above;
(4) "director" means a director of the Company;
(5) "Memorandum" means the Memorandum of Association of the Company and
all amendments thereto;
(6) "month" means calendar month;
(7) "Office" means the registered office of the Company;
(8) "person" includes a body corporate;
(9) "proxyholder" includes an alternate proxyholder;
(10) "Register" means the register of members kept pursuant to the Act, and
where the context permits includes a branch register of members;
(11) "Registrar" means the Registrar as defined in the Act;
(12) "Secretary" includes any person appointed to perform the duties of the
Secretary temporarily;
(13) "shareholder" means member as that term is used in the Act in
connection with a company limited by shares;
(14) "special resolution" has the meaning assigned by the Act;
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(15) "in writing" and "written" includes printing, lithography and other
modes of representing or reproducing words in visible form;
(16) words importing number or gender include all numbers and genders
unless the context otherwise requires;
2. The regulations in Table A in the First Schedule to the Act shall not apply
to the Company.
3. The directors may, out of the funds of the Company, pay all expenses
incurred for the continuance and reorganization of the Company.
SHARES
4. The directors shall control the shares and, subject to the provisions of
these Articles, may allot or otherwise dispose of them to such person at
such times, on such terms and conditions and, if the shares have a par
value, either at a premium or at par, as they think fit.
5. The directors may pay on behalf of the Company a reasonable commission to
any person in consideration of subscribing or agreeing to subscribe
(whether absolutely or conditionally) for any shares in the Company, or
procuring or agreeing to procure subscriptions (whether absolute or
conditional) for any shares in the Company. Subject to the Act, the
commission may be paid or satisfied in shares of the Company.
6. If the whole or part of the allotment price of any shares is, by the
conditions of their allotment, payable in instalments, every such
instalment shall, when due, be payable to the Company by the person who is
at such time the registered holder of the shares.
7. Shares may be registered in the names of joint holders not exceeding three
in number. On the death of one or more joint holders of shares the survivor
or survivors of them shall alone be recognized by the Company as the
registered holder or holders of the shares.
8. Save as herein otherwise provided, the Company may treat the registered
holder of any share as the absolute owner thereof and accordingly shall
not, except as ordered by a court of competent jurisdiction or required by
statute, be bound to recognize any equitable or other claim to or interest
in such share on the part of any other person.
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CERTIFICATES
9. Certificates of title to shares shall comply with the Act and may otherwise
be in such form as the directors may from time to time determine. Unless
the directors otherwise determine, every certificate of title to shares
shall be signed manually by at least one of the Co-Chairmen, the President,
the Secretary, the Treasurer, a vice-president, an assistant secretary, any
other officer of the Company or any director of the Company or by or on
behalf of a share registrar transfer agent or branch transfer agent
appointed by the Company or by any other person whom the directors may
designate. When signatures of more than one person appear on a certificate
all but one may be printed or otherwise mechanically reproduced. All such
certificates when signed as provided in this Article shall be valid and
binding upon the Company. If a certificate contains a printed or
mechanically reproduced signature of a person, the Company may issue the
certificate, notwithstanding that the person has ceased to be a director or
an officer of the Company and the certificate is as valid as if such person
were a director or an officer at the date of its issue. Any certificate
representing shares of a class publicly traded on any stock exchange shall
be valid and binding on the Company if it complies with the rules of such
exchange whether or not it otherwise complies with this Article.
10. Except as the directors may determine, each shareholder's shares may be
evidenced by any number of certificates so long as the aggregate of the
shares stipulated in such certificates equals the aggregate registered in
the name of the shareholder.
11. Where shares are registered in the names of two or more persons, the
Company shall not be bound to issue more than one certificate or set of
certificates, and such certificate or set of certificates shall be
delivered to the person first named on the Register.
12. Any certificate that has become worn, damaged or defaced may, upon its
surrender to the directors, be cancelled and replaced by a new certificate.
Any certificate that has become lost or destroyed may be replaced by a new
certificate upon proof of such loss or destruction to the satisfaction of
the directors and the furnishing to the Company of such undertakings of
indemnity as the directors deem adequate.
13. Such sum as the directors may from time to time determine shall be paid to
the Company for every certificate other than the first certificate issued
to any holder in respect of any share or shares.
14. The directors may cause one or more branch Registers of shareholders to be
kept in any place or places, whether inside or outside of Nova Scotia.
TRANSFER OF SHARES
15. The instrument of transfer of any share in the Company shall be signed by
the transferor.
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The transferor shall be deemed to remain the holder of such share until the
name of the transferee is entered in the Register in respect thereof and
shall be entitled to receive any dividend declared thereon before the
registration of the transfer.
16. The instrument of transfer of any share shall be in writing in
substantially the following form or to substantially the following effect:
For value received, ____ hereby sell, assign, and transfer unto
_______, shares in the capital of the Company represented by the
within certificate, and do hereby irrevocably constitute and appoint
_______ attorney to transfer such shares on the books of the Company
with full power of substitution in the premises.
Dated the __ day of
Witness:
17. Every instrument of transfer shall be left for registration at the Office
of the Company, or at any office of its transfer agent where a Register is
maintained, together with the certificate of the shares to be transferred
and such other evidence as the Company may require to prove title to or the
right to transfer the shares.
18. The directors may require that a fee determined by them be paid before or
after registration of any transfer.
19. Every instrument of transfer shall, after its registration, remain in the
custody of the Company. Any instrument of transfer that the directors
decline to register shall, except in case of fraud, be returned to the
person who deposited it.
TRANSMISSION OF SHARES
20. The executors or administrators of a deceased shareholder (not being one of
several joint holders) shall be the only persons recognized by the Company
as having any title to the shares registered in the name of such
shareholder. When a share is registered in the names of two or more joint
holders, the survivor or survivors or the executors or administrators of
the deceased survivor, shall be the only persons recognized by the Company
as having any title to, or interest in, such share.
21. Notwithstanding anything in these Articles, if the Company has only one
shareholder (not being one of several joint holders) and that shareholder
dies, the executors or administrators of the deceased shareholder shall be
entitled to register themselves in the Register as the holders of the
shares registered in the name of the deceased shareholder whereupon they
shall have all the rights given by these Articles and by law to
shareholders.
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22. Any person entitled to shares upon the death or bankruptcy of any
shareholder or in any way other than by allotment or transfer, upon
producing such evidence of entitlement as the directors require, may be
registered as a shareholder in respect of such shares, or may, without
being registered, transfer such shares subject to the provisions of these
Articles respecting the transfer of shares.
SURRENDER OF SHARES
23. The directors may accept the surrender of any share by way of compromise of
any question as to the holder being properly registered in respect thereof.
INCREASE AND REDUCTION OF CAPITAL
24. Subject to the Act, the Company may by resolution of its shareholders
increase its share capital by the creation of new shares of such amount as
it thinks expedient.
25. Subject to the Act, the new shares may be issued upon such terms and
conditions and with such rights, privileges, limitations, restrictions and
conditions attached thereto as the Company by resolution of its
shareholders determines or, if no direction is given, as the directors
determine.
26. Except as otherwise provided by the conditions of issue, or by these
Articles, any capital raised by the creation of new shares shall be
considered part of the original capital and shall be subject to the
provisions herein contained with reference to transfer, transmission and
otherwise.
27. The Company may, by special resolution where required, reduce its share
capital in any way and with and subject to any incident authorized and
consent required by law.
ALTERATION OF CAPITAL
28. Subject to the Act, the Company may by special resolution of its
shareholders:
(1) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares;
(2) convert all or any of its paid-up shares into stock and reconvert that
stock into paid-up shares of any denomination;
(3) exchange shares of one denomination for another;
(4) cancel shares which, at the date of the passing of the resolution in
that behalf, have not been taken or agreed to be taken by any person,
and diminish the amount of its
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share capital by the amount of the shares so cancelled;
(5) subdivide its shares, or any of them, into shares of smaller amount
than is fixed by the Memorandum, so, however, that in the subdivision
the proportion between the amount paid and the amount, if any, unpaid
on each reduced share shall be the same as it was in the case of the
share from which the reduced share is derived and the special
resolution whereby any share is subdivided may determine that as
between the holders of the shares resulting from such subdivision, one
or more of such shares shall have some preference or special advantage
as regards dividend, capital, voting or otherwise, over, or as
compared with, the others or other;
(6) convert any part of its issued or unissued share capital into
preference shares redeemable or purchasable by the Company;
(7) provide for the issue of shares without any nominal or par value
provided that, upon any such issue, a declaration executed by the
Secretary must be filed with the Registrar stating the number of
shares issued and the amount received therefor;
(8) convert all or any of its previously authorized, unissued or issued,
fully paid-up shares, other than preferred shares, with nominal or par
value into the same number of shares without any nominal or par value,
and reduce, maintain or increase accordingly its liability on any of
its shares so converted; provided that the power to reduce its
liability on any of its shares so converted may, where it results in a
reduction of capital, only be exercised subject to confirmation by the
court as provided by the Act; or
(9) convert all or any of its previously authorized, unissued or issued,
fully paid-up shares without nominal or par value into the same or a
different number of shares with nominal or par value, and for such
purpose the shares issued without nominal or par value and replaced by
shares with a nominal or par value shall be considered as fully paid,
but their aggregate par value shall not exceed the value of the net
assets of the Company as represented by the shares without par value
issued before the conversion.
29. Subject to the Act and any provisions attached to such shares, the Company
may redeem, purchase or acquire any of its shares and the directors may
determine the manner and the terms for redeeming, purchasing or acquiring
such shares and may provide a sinking fund on such terms as they think fit
for the redemption, purchase or acquisition of shares of any class or
series.
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CLASSES AND SERIES OF SHARES
30. Subject to the Act and the Memorandum, and without prejudice to any special
rights previously conferred on the holders of existing shares, any share
may be issued with such preferred, deferred or other special rights, or
with such restrictions, whether in regard to dividends, voting, return of
share capital or otherwise, as the Company may from time to time determine
by special resolution.
MEETINGS AND VOTING BY CLASS OR SERIES
31. Where the holders of shares of a class or series have, under the Act, the
Memorandum, the terms or conditions attaching to such shares or otherwise,
the right to vote separately as a class in respect of any matter then,
except as provided in the Act, the Memorandum, these Articles or such terms
or conditions, all the provisions in these Articles concerning general
meetings (including, without limitation, provisions respecting notice,
quorum and procedure) shall, mutatis mutandis, apply to every meeting of
holders of such class or series of shares convened for the purpose of such
vote.
BORROWING POWERS
32. The directors on behalf of the Company may:
(1) raise or borrow money for the purposes of the Company or any of them;
(2) secure, subject to the sanction of a special resolution where required
by the Act, the repayment of funds so raised or borrowed in such
manner and upon such terms and conditions in all respects as they
think fit, and in particular by the execution and delivery of
mortgages of the Company's real or personal property, or by the issue
of bonds, debentures or other securities of the Company secured by
mortgage or other charge upon all or any part of the property of the
Company, both present and future;
(3) sign or endorse bills, notes, acceptances, cheques, contracts, and
other evidence of or securities for funds borrowed or to be borrowed
for the purposes aforesaid;
(4) pledge debentures as security for loans;
(5) guarantee obligations of any person.
33. Bonds, debentures and other securities may be made assignable, free from
any equities between the Company and the person to whom such securities
were issued.
34. Any bonds, debentures and other securities may be issued at a discount,
premium or
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otherwise and with special privileges as to redemption, surrender,
drawings, allotment of shares, attending and voting at general meetings of
the Company, appointment of directors and other matters.
GENERAL MEETINGS
35. Ordinary general meetings of the Company shall be held at least once in
every calendar year at such time and place as may be determined by the
directors and not later than 15 months after the preceding ordinary general
meeting. All other meetings of the Company shall be called special general
meetings. Ordinary or special general meetings may be held either within or
outside the Province of Nova Scotia.
36. Either of the Co-Chairmen or any two of the directors may at any time
convene a special general meeting, and the directors, upon the requisition
of shareholders in accordance with the Act shall forthwith proceed to
convene such meeting or meetings to be held at such time and place or times
and places as the directors determine.
37. The requisition shall state the objects of the meeting requested, be signed
by the requisitionists and deposited at the Office of the Company. It may
consist of several documents in like form each signed by one or more of the
requisitionists.
38. At least seven clear days' notice, or such longer period of notice as may
be required by the Act, of every general meeting, specifying the place, day
and hour of the meeting and, when special business is to be considered, the
general nature of such business, shall be given to the shareholders
entitled to be present at such meeting by notice given as permitted by
these Articles. With the consent in writing of all the shareholders
entitled to vote at such meeting, a meeting may be convened by a shorter
notice and in any manner they think fit, or notice of the time, place and
purpose of the meeting may be waived by all of the shareholders.
39. When it is proposed to pass a special resolution, the two meetings may be
convened by the same notice, and it shall be no objection to such notice
that it only convenes the second meeting contingently upon the resolution
being passed by the requisite majority at the first meeting.
40. The accidental omission to give notice to a shareholder, or non-receipt of
notice by a shareholder, shall not invalidate any resolution passed at any
general meeting.
RECORD DATES
41. (1) The directors may fix in advance a date as the record date for the
determination of shareholders
(a) entitled to receive payment of a dividend or entitled to receive
any
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distribution;
(b) entitled to receive notice of a meeting; or
(c) for any other purpose.
(2) If no record date is fixed, the record date for the determination of
shareholders
(a) entitled to receive notice of a meeting shall be the day
immediately preceding the day on which the notice is given, or,
if no notice is given, the day on which the meeting is held; and
(b) for any other purpose shall be the day on which the directors
pass the resolution relating to the particular purpose.
PROCEEDINGS AT GENERAL MEETINGS
42. The business of an ordinary general meeting shall be to receive and
consider the financial statements of the Company and the report of the
directors and the report, if any, of the auditors, to elect directors in
the place of those retiring and to transact any other business which under
these Articles ought to be transacted at an ordinary general meeting.
43. No business shall be transacted at any general meeting unless the requisite
quorum is present at the commencement of the business. A corporate
shareholder of the Company that has a duly authorized agent or
representative present at any such meeting shall for the purpose of this
Article be deemed to be personally present at such meeting.
44. Holders of shares representing 10% of the votes which could be cast at the
meeting, present in person or by proxyholder or authorized representative
and entitled to vote shall constitute a quorum for a general meeting, and
may hold a meeting.
45. Either of the Co-Chairmen shall be entitled to take the chair at every
general meeting or if neither Co-Chairman is present within fifteen 15
minutes after the time appointed for holding the meeting, the President or,
failing the President, a vice-president shall be entitled to take the
chair. If no Co-Chairman, President or vice-president is present within 15
minutes after the time appointed for holding the meeting or if all such
persons present decline to take the chair, the shareholders present
entitled to vote at the meeting shall choose another director as chairman
and if no director is present or if all the directors present decline to
take the chair, then such shareholders shall choose one of their number to
be chairman.
46. If within half an hour from the time appointed for a general meeting a
quorum is not present, the meeting, if it was convened pursuant to a
requisition of shareholders, shall be dissolved;
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if it was convened in any other way, it shall stand adjourned to the same
day, in the next week, at the same time and place. If at the adjourned
meeting a quorum is not present within half an hour from the time appointed
for the meeting, the shareholders present shall be a quorum and may hold
the meeting.
47. Subject to the Act, at any general meeting a resolution put to the meeting
shall be decided by a show of hands unless, either before or on the
declaration of the result of the show of hands, a poll is demanded by the
chairman, a shareholder or a proxyholder; and unless a poll is so demanded,
a declaration by the chairman that the resolution has been carried, carried
by a particular majority, lost or not carried by a particular majority and
an entry to that effect in the Company's book of proceedings shall be
conclusive evidence of the fact without proof of the number or proportion
of the votes recorded in favour or against such resolution.
48. When a poll is demanded, it shall be taken in such manner and at such time
and place as the chairman directs, and either at once or after an interval
or adjournment or otherwise. The result of the poll shall be the resolution
of the meeting at which the poll was demanded. The demand of a poll may be
withdrawn. When any dispute occurs over the admission or rejection of a
vote, it shall be resolved by the chairman and such determination made in
good faith shall be final and conclusive.
49. The chairman shall not have a casting vote in addition to any vote or votes
that the chairman has as a shareholder.
50. The chairman of a general meeting may with the consent of the meeting
adjourn the meeting from time to time and from place to place, but no
business shall be transacted at any adjourned meeting other than the
business left unfinished at the meeting that was adjourned.
51. Any poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith without adjournment.
52. The demand of a poll shall not prevent the continuance of a meeting for the
transaction of any business other than the question on which a poll has
been demanded.
VOTES OF SHAREHOLDERS
53. Subject to the Act and to any provisions attached to any class or series of
shares concerning voting rights
(1) on a show of hands every shareholder present in person, every duly
authorized representative of a corporate shareholder, and, if not
prevented from voting by the Act, every proxyholder, shall have one
vote; and
(2) on a poll every shareholder present in person, every duly authorized
representative of
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a corporate shareholder, and every proxyholder, shall have one vote
for every share held;
whether or not such representative or proxyholder is a shareholder.
54. Any person entitled to transfer shares upon the death or bankruptcy of any
shareholder or in any way other than by allotment or transfer may vote at
any general meeting in respect thereof in the same manner as if such person
were the registered holder of such shares so long as the directors are
satisfied at least 48 hours before the time of holding the meeting of such
person's right to transfer such shares.
55. Where there are joint registered holders of any share, any of such holders
may vote such share at any meeting, either personally or by proxy, as if
solely entitled to it. If more than one joint holder is present at any
meeting, personally or by proxy, the one whose name stands first on the
Register in respect of such share shall alone be entitled to vote it.
Several executors or administrators of a deceased shareholder in whose name
any share stands shall for the purpose of this Article be deemed joint
holders thereof.
56. Votes may be cast either personally or by proxy or, in the case of a
corporate shareholder by a representative duly authorized under the Act.
57. A proxy shall be in writing and executed in the manner provided in the Act.
A proxy or other authority of a corporate shareholder does not require its
seal. Holders of Share Warrants shall not be entitled to vote by proxy in
respect of the shares included in such warrants unless otherwise expressed
in such warrants.
58. A shareholder of unsound mind in respect of whom an order has been made by
any court of competent jurisdiction may vote by guardian or other person in
the nature of a guardian appointed by that court, and any such guardian or
other person may vote by proxy.
59. A proxy and the power of attorney or other authority, if any, under which
it is signed or a notarially certified copy of that power or authority
shall be deposited at the Office of the Company or at such other place as
the directors may direct. The directors may, by resolution, fix a time not
exceeding 48 hours excluding Saturdays and holidays preceding any meeting
or adjourned meeting before which time proxies to be used at that meeting
must be deposited with the Company at its Office or with an agent of the
Company. Notice of the requirement for depositing proxies shall be given in
the notice calling the meeting. The chairman of the meeting shall determine
all questions as to validity of proxies and other instruments of authority.
60. A vote given in accordance with the terms of a proxy shall be valid
notwithstanding the previous death of the principal, the revocation of the
proxy, or the transfer of the share in respect of which the vote is given,
provided no intimation in writing of the death, revocation
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or transfer is received at the Office of the Company before the meeting or
by the chairman of the meeting before the vote is given.
61. Every form of proxy shall comply with the Act and its regulations and
subject thereto may be in the following form:
I, ____________ Of _________ being a shareholder of hereby appoint
__________ of ________ (or failing him/her ____________ of _________)
as my proxyholder to attend and to vote for me and on my behalf at the
ordinary/special general meeting of the company, to be held on the
day of and at any adjournment thereof, or at any meeting of
the company which may be held prior to [insert specified date
or event].
[If The Proxy Is Solicited By Or Behalf Of The Management Of The
Company, Insert A Statement To That Effect.]
Dated this __ day of _____ __.
Shareholder
62. A resolution, including a special resolution, in writing and signed by
every shareholder who would be entitled to vote on the resolution at a
meeting is as valid as if it were passed by such shareholders at a meeting
and satisfies all of the requirements of the Act respecting meetings of
shareholders.
DIRECTORS
63. The number of directors shall be six. Notwithstanding anything herein
contained, Michael Serruya, Richard E. Smith, Aaron Serruya, David Prussky,
David Smith and David J. Stein shall be the directors of the Company from
the date of continuance of the Company under the Act until their successors
are appointed or they otherwise cease to be directors in accordance with
these Articles.
64. The directors may be paid out of the funds of the Company as remuneration
for their service such sums, if any, as the Company may by resolution of
its shareholders determine, and such remuneration shall be divided among
them in such proportions and manner as the directors determine. The
directors may also be paid their reasonable travelling, hotel and other
expenses incurred in attending meetings of directors and otherwise in the
execution of their duties as directors.
65. The continuing directors may act notwithstanding any vacancy in their body,
but if their number falls below six, the directors shall not act other than
by unanimous resolution.
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66. A director may, in conjunction with the office of director, and on such
terms as to remuneration and otherwise as the directors arrange or
determine, hold any other office or place of profit under the Company or
under any company in which the Company is a shareholder or is otherwise
interested.
67. The office of a director shall ipso facto be vacated, if the director:
(1) becomes bankrupt or makes an assignment for the benefit of creditors;
(2) is, or is found by a court of competent jurisdiction to be, of unsound
mind;
(3) by notice in writing to the Company, resigns the office of director;
or
(4) is removed in the manner provided by these Articles.
68. No director shall be disqualified by holding the office of director from
contracting with the Company, either as vendor, purchaser, or otherwise,
nor shall any such contract, or any contract or arrangement entered into or
proposed to be entered into by or on behalf of the Company in which any
director is in any way interested, either directly or indirectly, be
avoided, nor shall any director so contracting or being so interested be
liable to account to the Company for any profit realized by any such
contract or arrangement by reason only of such director holding that office
or of the fiduciary relations thereby established, provided the director
makes a declaration or gives a general notice in accordance with the Act.
No director shall, as a director, vote in respect of any contract or
arrangement in which the director is so interested, and if the director
does so vote, such vote shall not be counted. This prohibition may at any
time or times be suspended or relaxed to any extent by a resolution of the
shareholders and shall not apply to any contract by or on behalf of the
Company to give to the directors or any of them any security for advances
or by way of indemnity.
ELECTION OF DIRECTORS
69. Directors shall be elected by motion carried by at least 662/3% of the
votes entitled to be cast on such motion. Any motion to elect a director
which is not carried by such majority shall be considered not to have been
carried.
70. At the dissolution of every ordinary general meeting at which their
successors are elected, all the directors shall retire from office and be
succeeded by the directors elected at such meeting. Retiring directors
shall be eligible for re-election.
71. If at any ordinary general meeting at which an election of directors ought
to take place no such election takes place, or if no ordinary general
meeting is held in any year or period of
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years, the retiring directors shall continue in office until their
successors are elected.
72. The Company may by special resolution of its shareholders determine or
alter the requirements for qualification of directors.
73. The Company may, by special resolution ,remove any director before the
expiration of such director's period of office and may, if desired, appoint
a replacement to hold office during such time only as the director so
removed would have held office.
74. The directors may appoint any other person as a director so long as the
total number of directors does not at any time exceed the number permitted.
No such appointment, except to fill a casual vacancy, shall be effective
unless all of the directors concur in it. Any casual vacancy occurring
among the directors may be filled by the directors, but any person so
chosen shall retain office only so long as the vacating director would have
retained it if the vacating director had continued as director.
CO-CHAIRMEN OF THE BOARD
75. The directors may elect two of their number to be Co-Chairmen and may
determine the period during which the Co-Chairmen hold office. The
Co-Chairmen shall perform such duties and receive such special remuneration
as the directors may provide and shall perform such duties as are provided
for herein.
PRESIDENT AND VICE-PRESIDENTS
76. The directors shall elect the President of the Company, who need not be a
director, and may determine the period for which the President is to hold
office. The President shall have general supervision of the business of the
Company and shall perform such duties as may be assigned from time to time
by the directors.
77. The directors may also elect vice-presidents, who need not be directors,
and may determine the periods for which they are to hold office. A
vice-president shall, at the request of the President or the directors and
subject to the directions of the directors, perform the duties of the
President during the absence, illness or incapacity of the President, and
shall also perform such duties as may be assigned by the President or the
directors.
SECRETARY AND TREASURER
78. The directors shall appoint a Secretary of the Company to keep minutes of
shareholders' and directors' meetings and perform such other duties as may
be assigned by the directors. The directors may also appoint a temporary
substitute for the Secretary who shall, for the purposes of these Articles,
be deemed to be the Secretary.
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79. The directors may appoint a treasurer of the Company to carry out such
duties as the directors may assign.
OFFICERS
80. The directors may elect or appoint such other officers of the Company,
having such powers and duties, as they think fit.
81. If the directors so decide the same person may hold more than one of the
offices provided for in these Articles.
82. Notwithstanding anything herein contained the officers of the Company on
the date of its continuance shall continue to hold office until their
successors are appointed or they otherwise cease to hold office in
accordance with these Articles.
PROCEEDINGS OF DIRECTORS
83. The directors may meet together for the dispatch of business, adjourn and
otherwise regulate their meetings and proceedings, as they think fit, and
may determine the quorum necessary for the transaction of business. Until
otherwise unanimously determined, four directors shall constitute a quorum
and may hold a meeting.
84. If all directors of the Company entitled to attend a meeting either
generally or specifically consent, a director may participate in a meeting
of directors or of a committee of directors by means of such telephone or
other communications facilities as permit all persons participating in the
meeting to hear each other, and a director participating in such a meeting
by such means is deemed to be present at that meeting for purposes of these
Articles.
85. Meetings of directors may be held either within or without the Province of
Nova Scotia and the directors may from time to time make arrangements
relating to the time and place of holding directors' meetings, the notices
to be given for such meetings and what meetings may be held without notice.
Unless otherwise provided by such arrangements:
(1) A meeting of directors may be held at the close of every ordinary
general meeting of the Company without notice.
(2) Notice of every other directors' meeting may be given as permitted by
these Articles to each director at least 48 hours before the time
fixed for the meeting.
(3) A meeting of directors may be held without formal notice if all the
directors are present or if those absent have signified their assent
to such meeting or their consent to the business transacted at such
meeting.
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86. The President or any director may at any time, and the Secretary, upon the
request of the President or any director, shall summon a meeting of the
directors to be held at Toronto, Ontario. Either Co-Chairman or any two
other directors may at any time, and the Secretary, upon the request of a
Co-Chairman or two other directors, shall summon a meeting to be held
elsewhere.
87. (1) Except for circumstances where questions are required by these
Articles to be determined unanimously, questions arising at any
meeting of directors shall be decided by a majority of votes.
The chairman of the meeting may vote as a director but shall
not have a second or casting vote.
(2) At any meeting of directors the chairman shall receive and count the
vote of any director not present in person at such meeting on any
question or matter arising at such meeting whenever such absent
director has indicated by telegram, letter or other writing lodged
with the chairman of such meeting the manner in which the absent
director desires to vote on such question or matter and such question
or matter has been specifically mentioned in the notice calling the
meeting as a question or matter to be discussed or decided thereat. In
respect of any such question or matter so mentioned in such notice any
director may give to any other director a proxy authorizing such other
director to vote for such first named director at such meeting, and
the chairman of such meeting, after such proxy has been so lodged,
shall receive and count any vote given in pursuance thereof
notwithstanding the absence of the director giving such proxy.
88. If no Co-Chairman is elected, or if at any meeting of directors no
Co-Chairman is present within five minutes after the time appointed for
holding the meeting, or is willing to take the chair, the President, if a
director, shall preside. If the President is not a director, is not present
at such time or declines to take the chair, a vice-president who is also a
director shall preside. If no person described above is present at such
time and willing to take the chair, the directors present shall choose some
one of their number to be chairman of the meeting.
89. A meeting of the directors at which a quorum is present shall be competent
to exercise all or any of the authorities, powers and discretions for the
time being vested in or exercisable by the directors generally.
90. The directors may delegate any of their powers to committees consisting of
such number of directors as they think fit. Any committee so formed shall
in the exercise of the powers so delegated conform to any regulations that
may be imposed on them by the directors.
91. The meetings and proceedings of any committee of directors shall be
governed by the provisions contained in these Articles for regulating the
meetings and proceedings of the directors insofar as they are applicable
and are not superseded by any regulations made by the directors.
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92. All acts done at any meeting of the directors or of a committee of
directors or by any person acting as a director shall, notwithstanding that
it is afterwards discovered that there was some defect in the appointment
of the director or person so acting, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed
and was qualified to be a director.
93. A resolution in writing and signed by every director who would be entitled
to vote on the resolution at a meeting is as valid as if it were passed by
such directors at a meeting.
94. If any one or more of the directors is called upon to perform extra
services or to make any special exertions in going or residing abroad or
otherwise for any of the purposes of the Company or the business thereof,
the Company may remunerate the director or directors so doing, either by a
fixed sum or by a percentage of profits or otherwise. Such remuneration
shall be determined by the directors and may be either in addition to or in
substitution for remuneration otherwise authorized by these Articles.
REGISTERS
95. The directors shall cause to be kept at the Company's Office in accordance
with the provisions of the Act a Register of the shareholders of the
Company, a register of the holders of bonds, debentures and other
securities of the Company and a register of its directors. Branch registers
of the shareholders and of the holders of bonds, debentures and other
securities may be kept elsewhere, either within or without the Province of
Nova Scotia, in accordance with the Act.
MINUTES
96. The directors shall cause minutes to be entered in books designated for the
purpose:
(1) of all appointments of officers;
(2) of the names of directors present at each meeting of directors and of
any committees of directors;
(3) of all orders made by the directors and committees of directors; and
(4) of all resolutions and proceedings of meetings of shareholders and of
directors.
Any such minutes of any meeting of directors or of any committee of
directors or of shareholders, if purporting to be signed by the chairman of
such meeting or by the chairman of the next succeeding meeting, shall be
receivable as prima facie evidence of the matters stated in such minutes.
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POWERS OF DIRECTORS
97. The management of the business of the Company is vested in the directors
who, in addition to the powers and authorities by these Articles or
otherwise expressly conferred upon them, may exercise all such powers and
do all such acts and things as may be exercised or done by the Company and
are not hereby or by statute expressly directed or required to be exercised
or done by the shareholders, but subject nevertheless to the provisions of
any statute, the Memorandum or these Articles. No modification of the
Memorandum or these Articles shall invalidate any prior act of the
directors that would have been valid if such modification had not been
made.
98. Without restricting the generality of the terms of any of these Articles
and without prejudice to the powers conferred thereby, the directors may:
(1) take such steps as they think fit to carry out any agreement or
contract made by or on behalf of the Company;
(2) pay costs, charges and expenses preliminary and incidental to the
promotion, formation, establishment, and registration of the Company;
(3) purchase or otherwise acquire for the Company any property, rights or
privileges that the Company is authorized to acquire, at such price
and generally on such terms and conditions as they think fit;
(4) pay for any property, rights or privileges acquired by, or services
rendered to the Company either wholly or partially in cash or in
shares (fully paid-up or otherwise), bonds, debentures or other
securities of the Company;
(5) subject to the Act, secure the fulfilment of any contracts or
engagements entered into by the Company by mortgaging or charging all
or any of the property of the Company and its unpaid capital for the
time being, or in such other manner as they think fit;
(6) appoint, remove or suspend at their discretion such experts, managers,
secretaries, treasurers, officers, clerks, agents and servants for
permanent, temporary or special services, as they from time to time
think fit, and determine their powers and duties and fix their
salaries or emoluments and require security in such instances and to
such amounts as they think fit;
(7) accept a surrender of shares from any shareholder insofar as the law
permits and on such terms and conditions as may be agreed;
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(8) appoint any person or persons to accept and hold in trust for the
Company any property belonging to the Company, or in which it is
interested, execute and do all such deeds and things as may be
required in relation to such trust, and provide for the remuneration
of such trustee or trustees;
(9) institute, conduct, defend, compound or abandon any legal proceedings
by and against the Company, its directors or its officers or otherwise
concerning the affairs of the Company, and also compound and allow
time for payment or satisfaction of any debts due and of any claims or
demands by or against the Company;
(10) refer any claims or demands by or against the Company to arbitration
and observe and perform the awards;
(11) make and give receipts, releases and other discharges for amounts
payable to the Company and for claims and demands of the Company;
(12) determine who may exercise the borrowing powers of the Company and
sign on the Company's behalf bonds, debentures or other securities,
bills, notes, receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, cheques, drafts, releases,
contracts, agreements and all other instruments and documents;
(13) provide for the management of the affairs of the Company abroad in
such manner as they think fit, and in particular appoint any person to
be the attorney or agent of the Company with such powers (including
power to sub-delegate) and upon such terms as may be thought fit;
(14) invest and deal with any funds of the Company in such securities and
in such manner as they think fit; and vary or realize such
investments;
(15) subject to the Act, execute in the name and on behalf of the Company
in favour of any director or other person who may incur or be about to
incur any personal liability for the benefit of the Company such
mortgages of the Company's property, present and future, as they think
fit;
(16) give any officer or employee of the Company a commission on the
profits of any particular business or transaction or a share in the
general profits of the Company;
(17) set aside out of the profits of the Company before declaring any
dividend such amounts as they think proper as a reserve fund to meet
contingencies or provide for dividends, depreciation, repairing,
improving and maintaining any of the property of the Company and such
other purposes as the directors may in their absolute discretion think
in the interests of the Company; and invest such amounts in such
investments as they think fit, and deal with and vary such
investments, and dispose of all or any part of them for the benefit of
the Company, and divide the reserve fund
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into such special funds as they think fit, with full power to employ
the assets constituting the reserve fund in the business of the
Company without being bound to keep them separate from the other
assets;
(18) make, vary and repeal rules respecting the business of the Company,
its officers and employees, the shareholders of the Company or any
section or class of them;
(19) enter into all such negotiations and contracts, rescind and vary all
such contracts, and execute and do all such acts, deeds and things in
the name and on behalf of the Company as they consider expedient for
or in relation to any of the matters aforesaid or otherwise for the
purposes of the Company;
(20) provide for the management of the affairs of the Company in such
manner as they think fit.
SOLICITORS
99. The Company may employ or retain solicitors any of whom may, at the request
or on the instruction of the directors or a Co-Chairman, attend meetings of
the directors or shareholders, whether or not the solicitor is a
shareholder or a director of the Company. A solicitor who is also a
director may nevertheless charge for services rendered to the Company as a
solicitor.
THE SEAL
100. The directors shall arrange for the safe custody of the common seal of the
Company (the "Seal"). The Seal may be affixed to any instrument in the
presence of and contemporaneously with the attesting signature of (i) any
director or officer acting within such person's authority or (ii) any
person under the authority of a resolution of the directors or a committee
thereof. For the purpose of certifying documents or proceedings the Seal
may be affixed by any director or the President, a vice-president, the
Secretary, an assistant secretary or any other officer of the Company
without the authorization of a resolution of the directors. The Company may
have facsimiles of the Seal which may be used interchangeably with the
Seal.
DIVIDENDS
101. The directors may from time to time declare such dividend as they deem
proper upon shares of the Company according to the rights and restrictions
attached to any class or series of shares, and may determine the date upon
which such dividend will be payable and that it will be payable to the
persons registered as the holders of the shares on which it is declared at
the close of business upon a record date. No transfer of such shares
registered after the record date shall pass any right to the dividend so
declared.
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102. No dividends shall be payable except out of the profits, retained earnings
or contributed surplus of the Company and no interest shall be payable on
any dividend except insofar as the rights attached to any class or series
of shares provide otherwise.
103. The declaration of the directors as to the amount of the profits, retained
earnings or contributed surplus of the Company shall be conclusive.
104. The directors may from time to time pay to the shareholders such interim
dividends as in their judgment the position of the Company justifies.
105. Subject to the Memorandum, these Articles and the rights and restrictions
attached to any class or series of shares, dividends may be declared and
paid to the shareholders in proportion to the amount of capital paid-up on
the shares (not including any capital paid-up bearing interest) held by
them respectively.
106. The directors may deduct from the dividends payable to any shareholder
amounts due and payable by the shareholder to the Company and may apply the
same in or towards satisfaction of such amounts so due and payable.
107. The directors may retain any dividends on which the Company has a lien, and
may apply the same in or towards satisfaction of the debts, liabilities or
engagements in respect of which the lien exists.
108. The directors may retain the dividends payable upon shares to which a
person is entitled or entitled to transfer upon the death or bankruptcy of
a shareholder or in any way other than by allotment or transfer, until such
person has become registered as the holder of such shares or has duly
transferred such shares.
109. The directors may declare that a dividend be paid by the distribution of
cash, paid-up shares (at par or at a premium), debentures, bonds or other
securities of the Company or of any other company or any other specific
assets held or to be acquired by the Company or in any one or more of such
ways.
110. The directors may settle any difficulty that may arise in regard to the
distribution of a dividend as they think expedient, and in particular
without restricting the generality of the foregoing may issue fractional
certificates, may fix the value for distribution of any specific assets,
may determine that cash payments will be made to any shareholders upon the
footing of the value so fixed or that fractions may be disregarded in order
to adjust the rights of all parties, and may vest cash or specific assets
in trustees upon such trusts for the persons entitled to the dividend as
may seem expedient to the directors.
111. Any person registered as a joint holder of any share may give effectual
receipts for all
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dividends and payments on account of dividends in respect of such share.
112. Unless otherwise determined by the directors, any dividend may be paid by a
cheque or warrant delivered to or sent through the post to the registered
address of the shareholder entitled, or, when there are joint holders, to
the registered address of that one whose name stands first on the register
for the shares jointly held. Every cheque or warrant so delivered or sent
shall be made payable to the order of the person to whom it is delivered or
sent. The mailing or other transmission to a shareholder at the
shareholder's registered address (or, in the case of joint shareholders at
the address of the holder whose name stands first on the register) of a
cheque payable to the order of the person to whom it is addressed for the
amount of any dividend payable in cash after the deduction of any tax which
the Company has properly withheld, shall discharge the Company's liability
for the dividend unless the cheque is not paid on due presentation. If any
cheque for a dividend payable in cash is not received, the Company shall
issue to the shareholder a replacement cheque for the same amount on such
terms as to indemnity and evidence of non-receipt as the directors may
impose. No shareholder may recover by action or other legal process against
the Company any dividend represented by a cheque that has not been duly
presented to a banker of the Company for payment or that otherwise remains
unclaimed for 6 years from the date on which it was payable.
ACCOUNTS
113. The directors shall cause proper books of account to be kept of the amounts
received and expended by the Company, the matters in respect of which such
receipts and expenditures take place, all sales and purchases of goods by
the Company, and the assets, credits and liabilities of the Company.
114. The books of account shall be kept at the head office of the Company or at
such other place or places as the directors may direct.
115. The directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions the accounts and
books of the Company or any of them shall be open to inspection of the
shareholders, and no shareholder shall have any right to inspect any
account or book or document of the Company except as conferred by statute
or authorized by the directors or a resolution of the shareholders.
116. At the ordinary general meeting in every year the directors shall lay
before the Company such financial statements and reports in connection
therewith as may be required by the Act or other applicable statute or
regulation thereunder and shall distribute copies thereof at such times and
to such persons as may be required by statute or regulation.
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AUDITORS AND AUDIT
117. Except in respect of a financial year for which the Company is exempt from
audit requirements in the Act, the Company shall at each ordinary general
meeting appoint an auditor or auditors to hold office until the next
ordinary general meeting. If at any general meeting at which the
appointment of an auditor or auditors is to take place and no such
appointment takes place, or if no ordinary general meeting is held in any
year or period of years, the directors shall appoint an auditor or auditors
to hold office until the next ordinary general meeting.
118. The first auditors of the Company may be appointed by the directors at any
time before the first ordinary general meeting and the auditors so
appointed shall hold office until such meeting unless previously removed by
a resolution of the shareholders, in which event the shareholders may
appoint auditors.
119. The directors may fill any casual vacancy in the office of the auditor but
while any such vacancy continues the surviving or continuing auditor or
auditors, if any, may act.
120. The Company may appoint as auditor any person, including a shareholder, not
disqualified by statute.
121. An auditor may be removed or replaced in the circumstances and in the
manner specified in the Act.
122. The remuneration of the auditors shall be fixed by the shareholders, or by
the directors pursuant to authorization given by the shareholders, except
that the remuneration of an auditor appointed to fill a casual vacancy may
be fixed by the directors.
123. The auditors shall conduct such audit as may be required by the Act and
their report, if any, shall be dealt with by the Company as required by the
Act.
NOTICES
124. A notice (including any communication or document) shall be sufficiently
given, delivered or served by the Company upon a shareholder, director,
officer or auditor by personal delivery at such person's registered address
(or, in the case of a director, officer or auditor, last known address) or
by prepaid mail, telegraph, telex, facsimile machine or other electronic
means of communication addressed to such person at such address.
125. Shareholders having no registered address shall not be entitled to receive
notice.
126. The holder of a share warrant shall not, unless otherwise expressed
therein, be entitled in respect thereof to notice of any general meeting of
the Company.
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127. All notices with respect to registered shares to which persons are jointly
entitled may be sufficiently given to all joint holders thereof by notice
given to whichever of such persons is named first in the Register for such
shares.
128. Any notice sent by mail shall be deemed to be given, delivered or served on
the earlier of actual receipt and the third business day following that
upon which it is mailed, and in proving such service it shall be sufficient
to prove that the notice was properly addressed and mailed with the postage
prepaid thereon. Any notice given by electronic means of communication
shall be deemed to be given when entered into the appropriate transmitting
device for transmission. A certificate in writing signed on behalf of the
Company that the notice was so addressed and mailed or transmitted shall be
conclusive evidence thereof.
129. Every person who by operation of law, transfer or other means whatsoever
becomes entitled to any share shall be bound by every notice in respect of
such share that prior to such person's name and address being entered on
the Register was duly served in the manner hereinbefore provided upon the
person from whom such person derived title to such share.
130. Any notice delivered, sent or transmitted to the registered address of any
shareholder pursuant to these Articles, shall, notwithstanding that such
shareholder is then deceased and that the Company has notice thereof, be
deemed to have been served in respect of any registered shares, whether
held by such deceased shareholder solely or jointly with other persons,
until some other person is registered as the holder or joint holder
thereof, and such service shall for all purposes of these Articles be
deemed a sufficient service of such notice on the heirs, executors or
administrators of the deceased shareholder and all joint holders of such
shares.
131. Any notice may bear the name or signature, manual or reproduced, of the
person giving the notice written or printed.
132. When a given number of days' notice or notice extending over any other
period is required to be given, the day of service and the day upon which
such notice expires shall not, unless it is otherwise provided, be counted
in such number of days or other period.
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INDEMNITY
133. Every director or officer, former director or officer, or person who acts
or acted at the Company's request, as a director or officer of the Company,
a body corporate, partnership or other association of which the Company is
or was a shareholder, partner, member or creditor, and the heirs and legal
representatives of such person, in the absence of any dishonesty on the
part of such person, shall be indemnified by the Company against, and it
shall be the duty of the directors out of the funds of the Company to pay
to the fullest extent permitted by law, all costs, losses and expenses,
including legal fees and disbursements and including an amount paid to
settle an action or claim or satisfy a judgment, that such director,
officer or person may incur or become liable to pay in respect of any claim
made against such person or civil, criminal or administrative action or
proceeding to which such person is made a party by reason of being or
having been a director or officer of the Company or such body corporate,
partnership or other association, whether the Company is a claimant or
party to such action or proceeding or otherwise; and the amount for which
such indemnity is proved shall immediately attach as a lien on the property
of the Company and have priority as against the shareholders over all other
claims.
134. No director or officer, former director or officer, or person who acts or
acted at the Company's request, as a director or officer of the Company, a
body corporate, partnership or other association of which the Company is or
was a shareholder, partner, member or creditor, in the absence of any
dishonesty on such person's part, shall be liable for the acts, receipts,
neglects or defaults of any other director, officer or such person, or for
joining in any receipt or other act for conformity, or for any loss, damage
or expense happening to the Company through the insufficiency or deficiency
of title to any property acquired for or on behalf of the Company, or
through the insufficiency or deficiency of any security in or upon which
any of the funds of the Company are invested, or for any loss or damage
arising from the bankruptcy, insolvency or tortious acts of any person with
whom any funds, securities or effects are deposited, or for any loss
occasioned by error of judgment or oversight on the part of such person, or
for any other loss, damage or misfortune whatsoever which happens in the
execution of the duties of such person or in relation thereto.
REMINDERS
135. The directors shall comply with the following provisions of the Act or the
Corporations Registration Act (Nova Scotia) where indicated:
(1) Keep a current register of shareholders (Section 42).
(2) Keep a current register of directors, officers and managers, send to
the Registrar a copy thereof and notice of all changes therein
(Section 98).
(3) Keep a current register of holders of bonds, debentures and other
securities (Section
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111 and Third Schedule).
(4) Send notice to the Registrar of any redemption or purchase of
preference shares (Section 50).
(5) Send notice to the Registrar of any consolidation, division,
conversion or reconversion of the share capital or stock of the
Company (Section 53).
(6) Send notice to the Registrar of any increase of capital (Section 55).
(7) Call a general meeting every year within the proper time (Section 83).
Meetings must be held not later than 15 months after the preceding
general meeting.
(8) Send to the Registrar copies of all special resolutions (Section 88).
(9) When shares are issued for a consideration other than cash, file a
copy of the contract with the Registrar on or before the date on which
the shares are issued (Section 109).
(10) Send to the Registrar notice of the address of the Company's
registered Office and of all changes in such address (Section 79).
(11) Keep proper minutes of all shareholders' meetings and directors'
meetings in the Company's minute book kept at the Company's registered
Office (Sections 89 and 90).
(12) Obtain a certificate under the Corporations Registration Act (Nova
Scotia) as soon as business is commenced.
(13) Send notice of recognized agent to the Registrar under the
Corporations Registration Act (Nova Scotia).