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Exhibit 3.4
ARTICLES OF ASSOCIATION
OF
SPARKLING SPRING WATER LIMITED
STEWART McKELVEY STIRLING SCALES
BARRISTERS & SOLICITORS
Halifax, Nova Scotia
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TABLE OF CONTENTS TO ARTICLES OF ASSOCIATION
Article Description Page
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1. Interpretation 1
2. Table A not to apply 1
3. Pre-Incorporation 1
4. Payment of expenses of Incorporation, etc. 1
5. May commence business at once
SHARES
6. Shares under control of directors 2
7. Commission on subscription 2
8. Amount and timing of calls, etc. 2
9. Instalments payable by registered holder 2
10. Joint registration 2
11. Liability of joint holders - survivor only recognized 2
12. Registered holder treated as absolute owner 2
13. Private company 2
CERTIFICATES
14. Share certificates 2
15. Entitlement to share certificate 3
16. Certificate issued to joint holders 3
17. Worn out, defaced or lost certificates 3
18. Fee for certificate 3
19. Branch registers 3
CALLS
20. Directors may make calls 3
21. When calls deemed made 3
22. Notice of call - timing and contents 3
23. Interest on unpaid call 3
24. Resolution making call conclusive evidence 3
25. Shareholder advances on unpaid shares 3
FORFEITURE OF SHARES
26. Notice before forfeiture 4
27. Contents of notice 4
28. Forfeiture when notice not complied with 4
29. Notice of forfeiture resolution, register entry 4
30. Forfeited share becomes property of Company 4
31. Annulment of forfeiture, etc. 4
32. Liability of shareholder to pay call after forfeiture 4
33. Certificate of forfeiture conclusive evidence 4
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LIEN ON SHARES
34. Lien on shares for debts of shareholder 4
35. Sale of shares not paid up to enforce lien 4
36. Application of proceeds of shares by Company 4
VALIDITY OF SALES
37. Validity of sale on forfeiture or to enforce lien 5
TRANSFER OF SHARES
38. How transfer effected 5
39. Form of transfer instrument 5
40. Directors may decline to register transfer 5
41. Delivery of transfer for registration 5
42. Fee on transfer 5
43. Transfer instrument to remain with Company 5
TRANSMISSION OF SHARES
44. Executors of deceased recognized as holder 5
45. Right of executor of sole shareholder 5
46. Transmission of shares on death, bankruptcy 6
SURRENDER OF SHARES
47. Surrender of shares in compromise 6
SHARE WARRANTS
48. Issue of Share Warrants 6
49. Conditions under which Share Warrants issued 6
INCREASE AND REDUCTION OF CAPITAL
50. Increase of capital 6
51. Terms of issue of new shares 6
52. New shares may be offered to existing shareholders 6
53. New capital within control of directors 6
54. Reduction of capital 6
ALTERATION OF CAPITAL
55. Altering capital by ordinary resolution 7
56. Altering capital by special resolution 7
57. Redemption and purchase of shares 7
INTEREST ON SHARE CAPITAL
58. When share capital may bear interest 7
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CLASSES AND SERIES OF SHARES
59. Shares with preferred, deferred or special rights 8
MEETINGS AND VOTING BY CLASS OR SERIES
60. Procedure, etc. for class vote 8
61. Restrictions on separate class and series votes 8
BORROWING POWERS
62. Directors' authority to borrow, give security, guarantee 8
63. Securities assignable free from equities 8
64. Securities at discount, premium, with preference 8
GENERAL MEETINGS
65. Ordinary general meetings 9
66. Special general meetings - how called 9
67. Contents of requisition 9
68. Notice of meeting - Waiver of notice 9
69. Notice of two meetings for special resolution 9
70. Accidental omission of notice 9
RECORD DATES
71. Setting record dates - when no record date set 9
PROCEEDINGS AT GENERAL MEETINGS
72. Business of ordinary general meeting 9
73. Quorum prerequisite to holding meeting 10
74. Requirements for quorum 10
75. Chairman of meeting 10
76. If quorum not present - dissolution or adjournment 10
77. Resolution by show of hands - demand of poll 10
78. Conduct of poll 10
79. Casting vote 10
80. Adjournment of meeting 10
81. Poll on question of adjournment, election of chairman 10
82. Effect of demand of poll on continuance of meeting 10
VOTES OF SHAREHOLDERS
83. Voting generally 10
84. Votes on transmission by death, bankruptcy, etc. 11
85. Votes of joint registered shareholders 11
86. Voting in person, by proxy, by corporate representative 11
87. Proxy requirements generally 11
88. Votes of shareholders of unsound mind 11
89. Depositing proxies before meeting 11
90. Votes by proxy after authority revoked 11
91. Form of proxy 11
92. Votes when call due on shares 12
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93. Resolution of directors ratified by shareholders 12
94. Resolution in writing without meeting 12
DIRECTORS
95. Number of directors - maximum and minimum 12
96. First directors 12
97. Remuneration of directors 12
98. Directors may act notwithstanding vacancy 12
99. Directors may also be officers 12
100. Vacation of office on bankruptcy, etc. 12
101. Directors' conflicts of interest 12
ELECTION OF DIRECTORS
102. Election of directors at general meeting 13
103. Retiring directors remain in office until succeeded 13
104. Number of directors elected, qualification 13
105. Removal of director 13
106. When directors may be appointed by other directors 13
MANAGING DIRECTOR
107. Authority to appoint managing director 13
108. Resignation and removal of managing director 13
109. Remuneration of managing director 13
110. Powers and duties of managing director 13
CHAIRMAN OF THE BOARD
111. Chairman of the Board 13
PRESIDENT AND VICE-PRESIDENTS
112. President 13
113. Vice-Presidents 14
SECRETARY AND TREASURER
114. Secretary 14
115. Treasurer 14
OFFICERS
116. Other officers 14
117. Same person may hold more than one office 14
PROCEEDINGS OF DIRECTORS
118. Meetings of directors - quorum requirement 14
119. Participation at meeting by telephone 14
120. Place of meetings - When notice required 14
121. Summoning of meetings 14
122. Questions decided by majority - casting vote - proxies 14
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123. Chairman of directors' meetings 15
124. Authority of meeting when quorum present 15
125. Committees of directors 15
126. Proceedings of committees of directors 15
127. Effect on meeting of defectively appointed director 15
128. Resolution of directors in writing without meeting 15
129. Remuneration of directors for extra services 15
REGISTERS
130. Registers and branch registers 15
MINUTES
131. Minutes and Minutes books - minutes prima facie evidence 15
POWERS OF DIRECTORS
132. General powers of directors 16
133. Specifically enumerated powers of directors 16
SOLICITORS
134. Solicitors 17
THE SEAL
135. Use of common seal 17
136. Facsimiles of common seal 17
137. Facsimile seal for use outside Nova Scotia 18
DIVIDENDS
138. Declaration of dividends 18
139. Dividends payable from profits, etc. 18
140. Declaration of amount of profits, etc., conclusive 18
141. Interim dividends 18
142. Dividends differentiated by paid-up capital 18
143. Right to set off debts against dividends 18
144. Where lien on dividends 18
145. Dividends on shares of deceased, etc. 18
146. Setting off calls and dividends 18
147. Cash dividend, dividend in kind, stock dividend, etc. 18
148. Power of directors to settle issues re dividends 18
149. Dividends on jointly registered shares 19
150. Satisfaction of dividend 19
ACCOUNTS
151. Directors' duty to keep accounts 19
152. Where books to be kept 19
153. Inspection of books by shareholders 19
154. Reports on accounts to general meeting 19
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AUDITORS AND AUDIT
155. Appointment of auditors at ordinary general meeting 19
156. First auditors 19
157. Directors may fill casual vacancy 19
158. Persons qualified for appointment as auditors 19
159. Removal of auditor 19
160. Remuneration 20
161. Duties of auditors 20
NOTICES
162. How notice given 20
163. Notice to shareholder without registered address 20
164. Holders of share warrants not entitled to notice 20
165. Notice to joint holders 20
166. When notice deemed given - proof of notice 20
167. Transferees bound by prior notice 20
168. Notice valid though shareholder deceased 20
169. How notice to be signed 20
170. How time to be counted 20
INDEMNITY
171. Indemnity of directors, officers, etc. 20
172. Individual liability of directors, officers, etc. 21
REMINDERS
173. Reminders to directors of obligations under Act 21
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ARTICLES OF ASSOCIATION
OF
SPARKLING SPRING WATER LIMITED
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;
(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 enter into and carry into effect or adopt and carry into
effect any agreement made by the promoters of the Company on behalf of the
Company and may agree to any modification in the terms of any such
agreement, either before or after its execution.
4. The directors may, out of the funds of the Company, pay all expenses
incurred for the incorporation and organization of the Company.
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5. The Company may commence business as soon after incorporation as the
directors think fit, notwithstanding that part only of the shares has been
allotted.
SHARES
6. 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.
7. 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.
8. On the issue of shares the Company may arrange among the holders thereof
differences in the calls to be paid and in the times for their payment.
9. 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.
10. Shares may be registered in the names of joint holders not exceeding three
in number.
11. Joint holders of a share shall be jointly and sever-ally liable for the
payment of all instalments and calls due in respect of such share. 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.
12. 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.
13. The Company is a private company, and:
(1) no transfer of any share or prescribed security of the Company shall
be effective unless or until approved by the directors;
(2) the number of holders of issued and outstanding prescribed
securities or shares of the Company, exclusive of persons who are in
the employment of the Company or in the employment of an affiliate
of the Company and exclusive of persons who, having been formerly in
the employment of the Company or the employment of an affiliate of
the Company, were, while in that employment, and have continued
after termination of that employment, to own at least one prescribed
security or share of the Company, shall not exceed 50 in number, two
or more persons or companies who are the joint registered owners of
one or more prescribed securities or shares being counted as one
holder; and
(3) the Company shall not invite the public to subscribe for any share
or prescribed security of the Company.
In this Article, "private company" and "securities" have the meanings
ascribed to those terms in the Securities Act (Nova Scotia), and
"prescribed security" means any of the securities prescribed by the Nova
Scotia Securities Commission from time to time for the purpose of the
definition of "private company" in the Securities Act (Nova Scotia).
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CERTIFICATES
14. 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 Chairman,
President, Secretary, 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.
15. 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.
16. 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.
17. 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.
18. The sum of one dollar or such other sum as the directors 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.
19. 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.
CALLS
20. The directors may make such calls upon the shareholders in respect of all
amounts unpaid on the shares held by them respectively and not made
payable at fixed times by the conditions on which such shares were
allotted, and each shareholder shall pay the amount of every call so made
to the person and at the times and places appointed by the directors. A
call may be made payable by instalments.
21. A call shall be deemed to have been made at the time when the resolution
of the directors authorizing such call was passed.
22. At least 14 days' notice of any call shall be given, and such notice shall
specify the time and place at which and the person to whom such call shall
be paid.
23. If the sum payable in respect of any call or instalment is not paid on or
before the day appointed for the payment thereof, the holder for the time
being of the share in respect of which the call has been made or the
instalment is due shall pay interest on such call or instalment at the
rate of 9% per year or such other
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rate of interest as the directors may determine from the day appointed for
the payment thereof up to the time of actual payment.
24. At the trial or hearing of any action for the recovery of any amount due
for any call, it shall be sufficient to prove that the name of the
shareholder sued is entered on the Register as the holder or one of the
holders of the share or shares in respect of which such debt accrued, that
the resolution making the call is duly recorded in the minute book and
that such notice of such call was duly given to the shareholder sued in
pursuance of these Articles. It shall not be necessary to prove the
appointment of the directors who made such call or any other matters
whatsoever and the proof of the matters stipulated shall be conclusive
evidence of the debt.
25. The directors may receive from any shareholder willing to advance it all
or any part of the amount due upon shares held by such shareholder beyond
the sums called for; and upon the amount so paid or satisfied in advance
or so much thereof as from time to time exceeds the amount of the calls
then made upon the shares in respect of which such advance has been made
the Company may pay interest at such rate or permit such participation in
profits upon the amount so paid or satisfied in advance as the shareholder
paying such sum in advance and the directors agree.
FORFEITURE OF SHARES
26. If any shareholder fails to pay any call or instalment on or before the
day appointed for payment, the directors may at any time thereafter while
the call or instalment remains unpaid serve a notice on such shareholder
requiring payment thereof together with any interest that may have accrued
and all expenses that may have been incurred by the Company by reason of
such non-payment.
27. The notice shall name a day (not being less than 14 days after the date of
the notice) and a place or places on and at which such call or instalment
and such interest and expenses are to be paid. The notice shall also state
that in the event of non-payment on or before the day and at the place or
one of the places so named, the shares in respect of which the call was
made or instalment is payable will be liable to be forfeited.
28. If the requirements of any such notice are not complied with, any shares
in respect of which such notice has been given may at any time thereafter,
before payment of all calls or instalments, interest and expenses due in
respect thereof, be forfeited by a resolution of the directors to that
effect. Such forfeiture shall include all dividends declared in respect of
the forfeited shares and not actually paid before the forfeiture.
29. When any share has been so forfeited, notice of the resolution shall be
given to the shareholder in whose name it stood immediately prior to the
forfeiture and an entry of the forfeiture shall be made in the Register.
30. Any share so forfeited shall be deemed the property of the Company and the
directors may sell, re-allot or otherwise dispose of it in such manner as
they think fit.
31. The directors may at any time before any share so forfeited has been sold,
re-allotted or otherwise disposed of, annul the forfeiture thereof upon
such conditions as they think fit.
32. Any shareholder whose shares have been forfeited shall nevertheless be
liable to pay and shall forthwith pay to the Company all calls,
instalments, interest and expenses owing upon or in respect of such shares
at the time of the forfeiture together with interest thereon at the rate
of 9% per year or such other rate of interest as the directors may
determine from the time of forfeiture until payment. The directors may
enforce such payment if they think fit, but are under no obligation to do
so.
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33. A certificate signed by the Secretary stating that a share has been duly.
forfeited on a specified date in pursuance of these Articles and the time
when it was forfeited shall be conclusive evidence of the facts therein
stated as against any person who would have been entitled to the share but
for such forfeiture.
LIEN ON SHARES
34. The Company shall have a first and paramount lien upon all shares (other
than fully paid-up shares) registered in the name of a shareholder
(whether solely or jointly with others) and upon the proceeds from the
sale thereof for debts, liabilities and other engagements of the
shareholder, solely or jointly with any other person, to or with the
Company, whether or not the period for the payment, fulfilment or
discharge thereof has actually arrived, and such lien shall extend to all
dividends declared in respect of such shares. Unless otherwise agreed, the
registration of a transfer of shares shall operate as a waiver of any lien
of the Company on such shares.
35. For the purpose of enforcing such lien the directors may sell the shares
subject to it in such mariner as they think fit, but no sale shall be made
until the period for the payment, fulfilment or discharge of such debts,
liabilities or other engagements has arrived, and until notice in writing
of the intention to sell has been given to such shareholder or the
shareholder's executors or administrators and default has been made by
them in such payment, fulfilment or discharge for seven days after such
notice.
36. The net proceeds of any such sale after the payment of all costs shall be
applied in or towards the satisfaction of such debts, liabilities or
engagements and the residue, if any, paid to such shareholder.
VALIDITY OF SALES
37. Upon any sale after forfeiture or to enforce a lien in purported exercise
of the powers given by these Articles the directors may cause the
purchaser's name to be entered in the Register in respect of the shares
sold, and the purchaser shall not be bound to see to the regularity of the
proceedings or to the application of the purchase money, and after the
purchaser's name has been entered in the Register in respect of such
shares the validity of the sale shall not be impeached by any person and
the remedy of any person aggrieved by the sale shall be in damages only
and against the Company exclusively.
TRANSFER OF SHARES
38. The instrument of transfer of any share in the Company shall be signed by
the transferor. 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.
39. The instrument of transfer of any share shall be in writing in the
following form or to 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 _________ 19__
Witness:
40. The directors may, without assigning any reason therefor, decline to
register any transfer of shares
(1) not fully paid-up or upon which the Company has a lien, or
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(2) the transfer of which is restricted by any agreement to which the
Company is a party.
41. 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.
42. The directors may require that a fee determined by them be paid before or
after registration of any transfer.
43. 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
44. 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.
45. 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
46. 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. The directors shall have the
same right to refuse registration as if the transferee were named in an
ordinary transfer presented for registration.
SURRENDER OF SHARES
47. 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. Any share so surrendered may be disposed of in the same manner as
a forfeited share.
SHARE WARRANT
48. The Company, with respect to any fully paid-up shares, may issue warrants
("Share Warrants") stating that the bearer is entitled to the shares
therein specified, and may provide, by coupons or otherwise, for the
payment of future dividends on the shares included in the Share Warrants.
49. The directors may determine and vary the conditions upon which Share
Warrants will be issued and, without limiting the generality of the
foregoing, may determine the conditions upon which
(1) a new Share Warrant or coupon will be issued in the place of one
worn out, defaced, lost or destroyed, or
(2) the bearer of a Share Wan-ant will be entitled to attend and vote at
general meetings, or
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(3) a Share Warrant may be surrendered and the name of the bearer
entered in the Register in respect of the shares therein specified.
Subject to such conditions and to these Articles the bearer of a Share
Warrant shall be a shareholder to the full extent. The bearer of a Share
Warrant shall be subject to the conditions for the time being in force,
whether made before or after the issue of the Sham Warrant.
INCREASE AND REDUCTION OF CAPITAL
50. 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.
51. 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.
52. The Company by resolution of its shareholders may, before the issue of any
new shares, determine that such shares or any of them shall be offered in
the first instance to all the then shareholders or to the holders of any
class or series of shares in proportion to the amount of the capital held
by them, or make any other provisions as to the issue and allotment of
such shares. In default of any such determination or to the extent that it
does not apply, the directors shall control the new shares.
53. 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 payment of calls and
instalments, transfer and transmission, forfeiture, lien and otherwise.
54. 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
55. Subject to the Act, the Company may by 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; or
(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 share capital by the amount
of the shares so cancelled.
56. Subject to the Act, the Company may by special resolution:
(1) 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
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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;
(2) convert any part of its issued or unissued share capital into
preference shares redeemable or purchasable by the Company;
(3) 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;
(4) 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
(5) 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.
57. 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.
INTEREST ON SHARE CAPITAL
58. The Company may pay interest at a rate not exceeding 6% per year on share
capital issued and paid-up for the purpose of raising funds to defray the
expenses of the construction of any works or buildings or the provision of
any plant which cannot be operated profitably for a lengthy period of
time. Such interest may be paid for such period and may-be charged to
capital as part of the cost of construction of the work or building or of
the provision of the plant. The payment of the interest shall not operate
to reduce the amount paid-up on the shares in respect of which it is paid.
The accounts of the Company shall show full particulars of the payment
during the period to which the accounts relate.
CLASSES AND SERIES OF SHARES
59. 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
60. 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.
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61. Unless the rights, privileges, terms or conditions attached to a class or
series of shares provide otherwise, such class or series of shares shall
not have the right to vote separately as a class or series upon an
amendment to the Memorandum or Articles to:
(1) increase or decrease any maximum number of authorized shares of such
class or series, or increase any maximum number of authorized shares
of a class or series having rights or privileges equal or superior
to the shares of such class or series;
(2) effect an exchange, reclassification or cancellation of all or part
of the shares of such class or series; or
(3) create a new class or series of shares equal or superior to the
shares of such class or series.
BORROWING POWERS
62. 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 including its
uncalled capital for the time being;
(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.
63. 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.
64. Any bonds, debentures and other securities may be issued at a discount,
premium or 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
65. 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 without the Province of Nova Scotia.
66. The President, a vice-president or 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.
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67. 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.
68. 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.
69. 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.
70. 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
71. (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 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
72. 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.
73. 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.
74. One person, being a shareholder, proxyholder or representative of a
corporate shareholder, present and entitled to vote shall constitute a
quorum for a general meeting, and may hold a meeting.
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75. The Chairman shall be entitled to take the chair at every general meeting
or, if there be no Chairman, or if the Chairman is not 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 the Chairman, the President or a vice-president is not
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.
76. 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; 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.
77. 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.
78. 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.
79. The chairman shall not have a casting vote in addition to any vote or
votes that the Chairman has as a shareholder.
80. 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.
81. Any poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith without adjournment.
82. 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
83. 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 a corporate shareholder, and every proxyholder,
shall have one vote for every share held;
whether or not such representative or proxyholder is a shareholder.
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84. 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.
85. 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.
86. 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.
87. 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.
88. 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.
89. 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.
90. 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 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.
91. 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 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
92. Subject to the Act, no shareholder shall be entitled to be present or to
vote on any question, either personally or by proxy, at any general
meeting or to be reckoned in a quorum while any call is due and payable to
the Company in respect of any shares of such shareholder.
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93. Any resolution passed by the directors, notice of which has been given to
the shareholders in the manner in which notices are hereinafter directed
to be given and which is, within one month after it has been passed,
ratified and confirmed in writing by shareholders entitled on a poll to
three-fifths of the votes, shall be as valid and effectual as a resolution
of a general meeting. This Article shall not apply to a resolution for
winding up the Company or to a resolution dealing with any matter that by
statute or these Articles ought to be dealt with by a special resolution
or other method prescribed by statute.
94. 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
95. Unless otherwise determined by resolution of shareholders, the number of
directors shall not be less than one.
96. Notwithstanding anything herein contained the subscribers to the
Memorandum shall be the first directors of the Company.
97. 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.
98. The continuing directors may act notwithstanding any vacancy in their
body, but if their number falls below the minimum permitted, the directors
shall not, except in emergencies or for the purpose of filling vacancies,
act so long as their number is below the minimum.
99. 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.
100. 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.
101. 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 did 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
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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
102. 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.
103. 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 years, the retiring directors
shall continue in office until their successors are elected.
104. The Company may by resolution of its shareholders elect any number of
directors permitted by these Articles and may determine or alter their
qualification.
105. The Company may, by special resolution or in any other manner permitted by
statute, 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.
106. 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 maximum number
permitted. No such appointment except to fill a casual vacancy, shall be
effective unless two-thirds 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.
MANAGING DIRECTOR
107. The directors may appoint one or more of their body to be managing
directors of the Company, either for a fixed term or otherwise, and may
remove or dismiss them from office and appoint replacements.
108. Subject to the provisions of any contract between a managing director and
the Company, a managing director shall be subject to the same provisions
as to resignation and removal as the other directors of the Company. A
managing director who for any reason ceases to hold the office of director
shall ipso facto immediately cease to be a managing director.
109. The remuneration of a managing director shall from time to time be fixed
by the directors and may be by way of any or all of salary, commission and
participation in profits.
110. The directors may from time to time entrust to and confer upon a managing
director such of the powers exercisable under these Articles by the
directors as they think fit and may confer such powers for such time, and
to be exercised for such objects and purposes and upon such terms and
conditions, and with such restrictions as they think expedient; and they
may confer such powers either collaterally with, or to the exclusion of,
and in substitution for, all or any of the powers of the directors in that
behalf; and may from time to time revoke, withdraw, alter or vary all or
any of such powers.
CHAIRMAN OF THE BOARD
111. The directors may elect one of their number to be Chairman and may
determine the period during which the Chairman is to hold office. The
Chairman shall perform such duties and receive such special remuneration
as the directors may provide.
PRESIDENT AND VICE-PRESIDENTS
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112. 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.
113. 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
114. 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.
115. The directors may appoint a treasurer of the Company to carry out such
duties as the directors may assign.
OFFICERS
116. The directors may elect or appoint such other officers of the Company,
having such powers and duties, as they think fit.
117. If the directors so decide the same person may hold more than one of the
offices provided for in these Articles.
PROCEEDINGS OF DIRECTORS
118. 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 determined, one director shall constitute a quorum and may hold
a meeting.
119. 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.
120. 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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121. 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 the Office of the Company. The President, the
Chairman or a majority of the directors may at any time, and the
Secretary, upon the request of the President, the Chairman or a majority
of the directors, shall summon a meeting to be held elsewhere.
122. (1) 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.
123. If no Chairman is elected, or if at any meeting of directors the Chairman
is not present within five minutes after the time appointed for holding
the meeting, or declines 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.
124. 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.
125. 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.
126. 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.
127. 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.
128. 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.
129. 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
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130. 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
131. 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.
POWERS OF DIRECTORS
132. 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.
133. 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 fulfillment 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;
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(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;
(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 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;
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(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
134. The Company may employ or retain solicitors any of whom may, at the
request or on the instruction of the directors, the Chairman, the
President or a managing director, 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
135. 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 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.
136. The Company may have facsimiles of the Seal which may be used
interchangeably with the Seal.
137. The Company may have for use at any place outside the Province of Nova
Scotia, as to all matters to which the corporate existence and capacity of
the Company extends, an official seal that is a facsimile of the Seal of
the Company with the addition on its face of the name of the place where
it is to be used; and the Company may by writing under its Seal authorize
any person to affix such official seal at such place to any document to
which the Company is a party.
DIVIDENDS
138. 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.
139. 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.
140. The declaration of the directors as to the amount of the profits, retained
earnings or contributed surplus of the Company shall be conclusive.
141. The directors may from time to time pay to the shareholders such interim
dividends as in their judgment the position of the Company justifies.
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142. 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.
143. The directors may deduct from the dividends payable to any shareholder
amounts due and payable by the shareholder to the Company on account of
calls, instalments or otherwise, and may apply the same in or towards
satisfaction of such amounts so due and payable.
144. 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.
145. 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.
146. When the directors declare a dividend on a class or series of shares and
also make a call on such shares payable on or before the date on which the
dividend is payable, the directors may retain all or part of the dividend
and set off the amount retained against the call.
147. 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.
148. 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.
149. Any person registered as a joint holder of any share may give effectual
receipts for all dividends and payments on account of dividends in respect
of such share.
150. 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 wan-ant 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
151. 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.
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152. 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.
153. 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.
154. 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.
AUDITORS AND AUDIT
155. 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.
156. 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.
157. 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.
158. The Company may appoint as auditor any person, including a shareholder,
not disqualified by statute.
159. An auditor may be removed or replaced in the circumstances and in the
manner specified in the Act.
160. 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.
161. 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
162. 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.
163. Shareholders having no registered address shall not be entitled to receive
notice.
164. The holder of a share wan-ant shall not, unless otherwise expressed
therein, be entitled in respect thereof to notice of any general meeting
of the Company.
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165. 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.
166. 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.
167. 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.
168. 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.
169. Any notice may bear the name or signature, manual or reproduced, of the
person giving the notice written or printed.
170. 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.
INDEMNITY
171. 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, all costs, losses and expenses, 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.
172. 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,
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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
173. The directors shall comply with the following provisions of the Act or the
Corporations Registration Act (Nova Scotia) where indicated:
(1) Keep a cur-rent 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 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).
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SPARKLING SPRING WATER LIMITED
SPECIAL RESOLUTION OF THE
SHAREHOLDERS
WHEREAS the authorized capital of the Company consists of 10,000,000
common shares without nominal or par value and 1,000,000 Class A preferred
shares without nominal or par value;
AND WHEREAS it is deemed desirable to increase the capital of the Company;
BE IT THEREFORE RESOLVED as a Special Resolution of the Company;
1. THAT the capital of the Company be and is hereby increased from 10,000,000
common shares without nominal or par value and 1,000,000 Class A preferred
shares without par value to:
10,000,000 common shares without nominal or par value;
1,000,000 Class A preferred Shares without nominal or par value;
10,000,000 Class B non-voting common shares without nominal or par value;
by the creation of 10,000,000 Class B non-voting common shares without nominal
or par value, having the rights and subject to the terms and conditions set
forth in Schedule "A" annexed hereto; and
2. THAT the Secretary of the Company give notice to the Registrar of Joint
Stock Companies of the said increase in capital.
************************************************************************
CERTIFICATE
I HEREBY CERTIFY that the above resolution is a true copy of a Special
Resolution passed by the Shareholders of the Company in the manner authorized by
law and that such Special Resolution is now in full force and effect.
WITNESS my hand the corporate seal of the said Corporation this ____ day
of ____________, 1994.
------------------------------------
Stephen Larson, Vice Chairman of
Sparkling Spring Water Limited
32
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SPRARKLING SPRING WATER LIMITED
SHARE CONDITIONS - CLASS B NON-VOTING COMMON SHARES
The terms and conditions of the 10,000,000 Class B non-voting common
shares without nominal or par value (the "Non-Voting Shares") shall be as
follows:
Non-Voting:
1. The holders of the Non-voting Shares shall not be entitled to receive
notice of, to attend or to vote at any meeting of the shareholders of the
shareholders of the Company;
Dividends:
2. The Non-Voting Shares shall confer upon the holders thereof the right to
receive dividends when and as declared by the directors of the Company out
of the monies of the Company properly available for dividends on a pro
rata share-for-share basis equal to that of the holders of common shares
of the Company;
Dissolution:
3. In the event of the winding-up or dissolution of the Company, whether
voluntary or involuntary, or for reorganization or otherwise, whereupon
any distribution of capital, the holders of Non-Voting Shares shall fully
participate in the assets of the Company on a pro rata basis,
share-for-share with the holders of the common shares of the Company;
Rank:
4. Except as otherwise provide for herein, the Non-Voting Shares shall rank
equally with the common shares of the Company.
33
SPARKLING SPRING WATER LIMITED
SPECIAL SHAREHOLDERS' RESOLUTION
BE IT RESOLVED AS A SPECIAL RESOLUTION OF THE SHAREHOLDERS OF THE COMPANY
THAT:
1. The Articles of Association of the Company be amended by the deleting of
Section 98 thereof and replacing it with the following:
"98. The number of the directors of the Company shall not be less than
one or greater than twelve persons";
2. The Secretary of the Company is authorized to file a copy of this
Resolution at the Registry of Joint Stock Companies in Halifax, Nova
Scotia.
DATED at Halifax, Nova Scotia, this 4th day of January, 1996.
- --------------------------------------------------------------------------------
CERTIFICATE
I HEREBY CERTIFY that the above resolution is a true copy of a Special
Resolution signed by all of the Shareholders of the Company in the manner
authorized by law and that such Special Resolution is now in full force and
effect.
WITNESS my hand and the corporate seal of the said Corporation this ____
day of January, 1996.
------------------------------------
STEPHEN L. LARSON, Vice-Chairman
SPARKLING SPRING WATER LIMITED