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Exhibit 3.8
SCHEDULE 2
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ARTICLES
OF
SUN MEDIA (TORONTO) CORPORATION
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TABLE OF CONTENTS
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PART 1 - INTERPRETATION .................................................. 1
PART 2 - ISSUE OF SHARES ................................................. 1
PART 3 - SHARE OF CERTIFICATES ........................................... 2
PART 4 - TRANSFER OF SHARES, GENERAL ..................................... 3
PART 5 - TRANSMISSION OF SHARES .......................................... 3
PART 6 - BORROWING AND CAPITAL ........................................... 4
PART 7 - MEETINGS ........................................................ 5
PART 8 - PROCEEDINGS AT GENERAL MEETINGS ................................. 6
PART 9 - VOTES OF MEMBERS ................................................ 8
PART 10 - DIRECTORS ...................................................... 9
PART 11 - INDEMNIFICATION ................................................ 12
PART 12 - PROCEEDINGS OF DIRECTORS ....................................... 14
PART 13 - OFFICERS ....................................................... 15
PART 14 - EXECUTION OF INSTRUMENTS ....................................... 17
PART 15 - DIVIDENDS ...................................................... 18
PART 16 - ACCOUNTS ....................................................... 19
PART 17 - NOTICES ........................................................ 19
PART 18 - FEES ........................................................... 20
PART 19 - TRANSFER OF SHARES, RESTRICTIONS ............................... 20
PART 20 - SPECIAL RIGHTS AND RESTRICTIONS ................................ 21
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PART 1 - INTERPRETATION
1.1 In these Articles, unless the context otherwise requres:
(a) "directors" means the director or directors of the Company for the
time being;
(b) "Company Act" means the Company Act of the Province of British
Columbia from time to time in force and all amendments thereto and
all Regulations and amendments thereto made pursuant to that Act;
(c) "register" means the register of members to be kept pursuant to
the Company Act;
(d) "registered address" of a member means his address as recorded in
the register;
(e) "registered address" of a director means his address as recorded
in the Company's register of directors to be kept at the records
office of the Company pursuant to the Company Act.
1.2 Words importing the singular include the plural and vice versa, and
words importing a male person include a female person and a corporation.
1.3 The definitions in the Company Act in force and as amended from time to
time shall, with necessary changes and so far as applicable,
apply to these Articles.
1.4 The regulations contained in Table A in the First Schedule to the
Company Act shall not apply to the Company.
PART 2 - ISSUE OF SHARES
2.1 Subject to the Company Act and to these Articles, the issue of shares
of the Company shall be under the control of the directors who may,
subject to the rights of holders of shares of the Company for the time
being outstanding, allot or otherwise dispose of, and/or grant options
on, shares authorized but not yet issued at such times and to such
persons, including directors, and in such manner and upon such terms
and conditions and at such price or for such consideration as the
directors in their absolute discretion may determine.
2.2 Whenever the Company is not a reporting company, the directors, before
allotting any shares, shall first offer those shares pro rata to the
members, but where there are classes of shares, the directors shall
first offer the shares to be allotted pro rata to the members holding
shares of the class proposed to be allotted, and, if any shares remain,
the directors shall then offer the remaining shares pro rata to the
other members. The offer shall be made by notice specifying the number
of shares offered and the time, which shall be not less than seven
days, for acceptance of the offer. After the expiration of the time for
acceptance or on receipt of written confirmation from the person to
whom such an offer is made that he declines to accept the offer, and
where there are no other members holding shares who should first
receive an offer, the directors may, for three months thereafter,
offer shares to
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such persons and in such manner as they think most beneficial to the
Company, but the offer to those persons shall not be at a price less
than, or on terms more favourable than, the offer to the members.
Whenever the Company is a reporting company, the directors may allot and
issue its shares at such times and in such manner and to such persons or
class of persons as the directors may determine and as the Company Act,
the Securities Act, and all other applicable laws permit.
2.3 When the Company is authorized to issue shares without par value, the
directors are authorized to determine the price or consideration for
which such shares shall be allotted or issued, and notwithstanding that
the price or consideration for a share may be other than cash, the
price or consideration for a share shall, at the time when the share is
allotted, be expressed in terms of money and so recorded in the
proceedings of the directors of the Company.
2.4 No share shall be issued until the Company has received the full
consideration therefore in cash, property, or services, provided that:
(a) a document or book account evidencing indebtedness of the
allottee does not constitute property;
(b) services shall be past services actually performed for the
Company; and
(c) the value of property or services shall be the value the
directors determine by resolution to be, in all the circumstances
of the transaction, the fair market value.
2.5 Subject to the provisions and restrictions contained in the Company Act
applicable to the shares without par value or otherwise, the Company
may pay a commission or allow a discount in an amount not exceeding 25%
of the amount of the subscription price to any person in consideration
of his subscribing or agreeing to subscribe, or procuring or agreeing
to procure subscriptions, whether absolutely or conditionally for
shares. The Company may pay such brokerage as may be lawful.
PART 3 - SHARE CERTIFICATES
3.1 Every share certificate issued by the Company shall be in such form as
the directors approve and shall comply with the requirements of the
Company Act.
3.2 If any share certificate is worn out or defaced, then upon production
of that certificate to the directors or the transfer agent of the
Company, the directors or that transfer agent may declare the same to
be cancelled and cause it to be so marked and may issue a new
certificate in place of the certificate cancelled. If any share
certificate is lost or destroyed, then, upon proof of the loss or
destruction to the satisfaction of the directors, and upon giving such
indemnity as the directors deem adequate, a new certificate shall be
issued to the party entitled to it. In any such case where a new share
certificate is issued, the fee prescribed in Part 18 of these Articles
must be paid if requested.
3.3 A share certicate registered in the names of two or more persons shall
be delivered to the person first named on the register.
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PART 4 - TRANSFER OF SHARES, GENERAL
4.1 Subject to the restrictions, if any, set forth in these Articles, any
member may transfer his shares by instrument in writing executed by or
on behalf of such member and delivered to the Company or its transfer
agent. The instrument of transfer of any share of the Company shall be
in the form, if any, on the back of the certificate of the share being
transferred, or in any other form which the directors may approve. If
the directors so require, each instrument of transfer shall be in
respect of only one class of shares.
4.2 Every instrument of transfer shall be executed by the transferor and left
at the registered office of the Company or at an authorized office of
its transfer agent for registration, together with the certificate for
the shares to be transferred and such other evidence, if any, as the
directors or the transfer agent may require to prove the title of the
transferor or his right to transfer the shares. All instruments of
transfer which are registered shall be retained by the Company or its
transfer agent, but any instrument of transfer where the transfer is
not registered shall be returned to the person depositing the same,
together with the share certificate which accompanied the same when
tendered for registration. The transferor shall remain the holder of
the share until the name of the transferee is entered on the register
in respect of that share.
4.3 The signature of the registered owner of any shares, or of his duly
authorized attorney, upon the form of transfer consitutes an authority
to the Company to register the shares specified in the form of
transfer in the name of the person named in that form as transferee or,
if no person is so named, then in any name designated in writing by the
person depositing the share certificate and the form of transfer with
the Company or its agents. The Company or its transfer agent may
require proof or guarantee of the signature of any transferor.
4.4 Neither the Company nor any director, officer or agent is bound to
enquire into the title of the transferee of shares to be transferred,
nor is any such person liable to the registered or any intermediate
owner of the shares for registering the transfer.
4.5 The Company may keep its register of members either at its records
office or at any office in the Province of British Columbia of a trust
company registered under the Trust Company Act, and may keep, or cause
to be kept within the Province by a trust company registered as
aforesaid, one or more branch registers of members.
4.6 Whenever the Company is a reporting company, but not otherwise, it may
cause one or more branch registers of members to be kept outside the
Province of British Columbia.
PART 5 - TRANSMISSION OF SHARES
5.1 In the case of the death or bankruptcy of a member, his personal
representative or trustee in bankruptcy shall be the only person
recognized by the Company as having any title to or interest in the
shares registered in the name of the deceased. Before recognizing any
personal representative or trustee in bankruptcy the directors may
require him to produce and deposit the documents required by the
Company Act.
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Notwithstanding anything otherwise provided in these Articles, if a
person becomes entitled to a share as a result of an order of a Court
of competent jurisdiction or pursuant to a statute, then, upon
producing such evidence as the directors think sufficient that he is so
entitled, such person may be registered as holder of the share.
PART 6 - BORROWING AND CAPITAL
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6.1 Subject to any restriction which may from time to time be included in
the memorandum of the Company or these Articles or contained in the
Company Act or the terms, rights or restrictions of any shares or
securities of the Company outstanding, the directors may at their
discretion authorize the Company to borrow any sum of money and may
raise or secure the repayment of such sum in such manner and upon such
terms and conditions, in all respects, as they think fit, and in
particular, and without limiting the generality of the foregoing, by
the issue of bonds or debentures, or any mortgage or charge, whether
specific or floating, or by granting any other security on the
undertaking, or the whole or any part of the property, of the Company,
both present and future.
6.2 The directors may make any debentures, bonds or other debt obligations
by the Company, by their terms assignable free from any equities
between the Company and the person to whom they may be issued or any
other person who lawfully acquires the same by assignment, purchase, or
otherwise, howsoever.
6.3 The directors may authorize the issue of any debentures, bonds or other
debt obligations of the Company at a discount, premium or otherwise,
and with special or other rights or privileges as to redemption,
surrender, entitlement to interest or share of income, allotment of, or
conversion into, or exchange for shares, attendance at general meetings
of the Company, and otherwise as the directors may determine at or
before the time of issue, but no debenture shall be issued which the
Company has not the power to reissue until the members by resolution
determine such debenture shall be cancelled unless such debenture
expressly provides by its terms that it shall not be reissued. The
Company may cause one or more branch registers of its debenture holders
to be kept.
6.4 The Company by ordinary resolution of the members and insofar as the
Company Act shall permit, may alter its memorandum to increase its
authorized capital by:
(a) creating shares with par value, or shares without par value, or
both;
(b) increasing the number of shares with par value, or shares without
par value, or both;
(c) increasing the par value of a class of shares with par value, if
no shares of that class are issued; or
(d) creating shares of different classes with special rights or
restrictions.
6.5 The Company may, by resolution of the directors and subject to the
provisions of the Company Act and the specific provisions of any
special rights or restrictions attached to any class or classes of its
shares, purchase or otherwise acquire any of its shares
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if, at the time of the proposed purchase or acquisition the Company is
not insolvent or likely to be rendered insolvent by such purchase or
acquisition and if, where a proposed purchase of shares is not to be
made through a stock exchange, the Company shall make its offer to
purchase pro rata to every member who holds shares of the class or kind
to be purchased unless the Company is purchasing shares from a
dissenting member pursuant to the Company Act.
6.6 The Company may, by resolution of the directors and subject to the
provisions of the Company Act and the specific provisions of any
special rights or restrictions attached to any class or classes of its
shares by the Memorandum or these Articles, redeem any of its issued
shares that have a right of redemption attached thereto provided that
at the time of such redemption the Company is not insolvent or likely
to be rendered insolvent by such redemption and where the Company
proposes to redeem some, but not all, of its shares of a particular
class or kind, the directors shall have absolute discretion to
determine in such manner as they deem proper which shares shall be
redeemed, and, without limiting the generality of the foregoing, may
redeem shares which have been purchased by the Company in priority to
shares which are held by members.
PART 7 - MEETINGS
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7.1 Meetings of the Company shall be held at such time and place, in
accordance with the Company Act, as the directors appoint, and, unless
otherwise specifically provided, the provisions of these Articles
relating to meetings shall apply with necessary changes to a meeting of
members holding a particular class of shares. Notwithstanding the
foregoing, a meeting of members may only be held outside Canada if all
members entitled to vote at that meeting so agree, and a shareholder
who attends a meeting of members held outside Canada is deemed to have
so agreed except when he attends the meeting for the express purpose of
objecting to the transaction of any business on the grounds that the
meeting is not lawfully held.
7.2 Every meeting, other than an annual general meeting or a class meeting,
shall be called an extraordinary general meeting.
7.3 The directors may, whenever they think fit, convene an extraordinary
general meeting.
7.4 Notice of a meeting shall specify the place, the day and the hour of
meeting, and, in case of special business, the general nature of that
business. Notice shall be given no less than 21 days or more than 50
days before the meeting. The accidental omission to give notice of any
meeting to, or the non-receipt of any notice by, any of the members
entitled to receive notice, shall not invalidate any proceedings at
that meeting.
7.5 If any special business includes presenting, considering, approving,
ratifying or authorizing the execution of any document, then the
portion of any notice relating to that document is sufficient if it
states that a copy of the document or proposed document is or will be
available for inspection by members at an office of the Company in the
Province of British Columbia or at one or more designated places in
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the Province during business hours on any specified or unspecified
business day or days prior to the date of the meeting, and at the
meeting.
PART 8 - PROCEEDINGS AT GENERAL MEETINGS
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8.1 The following business at a general meeting shall be deemed to be
special business:
(a) All business at an extraordinary general meeting;
(b) All business that is transacted at an annual general meeting,
with the exception of the consideration of the financial
statements and the report of the directors and auditors, the
election of directors, the appointment of the auditors and such
other business as, under these Articles or in accordance with the
Company Act, ought to be transacted at an annual general meeting
or is business which is brought under consideration by the report
of the directors issued with the notice convening the meeting;
and no special business shall be conducted at any meeting unless notice
of that business has been given to the members in accordance with these
Articles or members holding at least 75% of the shares entitled to be
voted at that meeting are present and consent to the conduct of such
business.
8.2 No business, other than the election of a chairman and the adjournment
or termination of the meeting, shall be conducted at any meeting at any
time when a quorum is not present. A quorum shall be one person holding
or representing by proxy not less than one-half of the outstanding
shares of the Company which are entitled to be voted at the meeting,
unless the Company has only one member, in which case the quorum shall
be that member who may conduct the business of the Company by
proceedings recorded in writing and signed by him. If at any time
during a meeting there ceases to be a quorum present, any business then
in progress shall be suspended until there is a quorum present or until
the meeting is adjourned or terminated, as the case may be.
8.3 If within 30 minutes from the time appointed for a meeting a quorum is
not present, the meeting, if convened upon the requisition of members,
shall be terminated. In any other case, it shall stand adjourned to the
same day in the next week, at the same time and place, and if, at the
adjourned meeting, a quorum is not present within half an hour from the
time appointed for the meeting, the member or members present shall be
a quorum.
8.4 Subject to Article 8.5, the chairman of the board of directors, if
there is one, failing whom the president of the Company, failing whom
one of the directors present chosen by the directors from among their
number, shall preside as chairman of every meeting.
8.5 If at any general meeting there is no chairman or president or director
present within 15 minutes after the time appointed for holding the
meeting, or if the chairman or president and all the directors present
are unwilling to act as chairman, the members present shall choose
someone of their number to be chairman.
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8.6 The chairman of a meeting may, with the consent of any meeting at which
a quorum is present, and shall, if so directed by 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 from which the adjournment took place.
When a meeting is adjourned for 30 days or more, notice of the adjourned
meeting shall be given as in the case of the original meeting. Except as
aforesaid, it is not necessary to give any notice of an adjournment or
of the business to be transacted at an adjourned meeting.
8.7 No resolution proposed at a meeting need be seconded, and the chairman
of any meeting is entitled to move or propose a resolution.
8.8 In case of an equality of votes the chairman shall not, either on a show
of hands or on a poll, have a casting or second vote in addition to the
vote or votes to which he may be entitled as a member, which vote or
votes he is entitled to cast without vacating the chair.
8.9 In the case of any dispute as to the admission or rejection of a proxy
or a vote, the chairman shall determine the same and his determination,
made in good faith, is final and conclusive.
8.10 A member entitled to more than one vote need not, if he votes, use all
his votes or cast all the votes he uses in the same way.
8.11 Subject to these Articles, if a poll is duly demanded it shall be taken
in such manner as the chairman directs within seven days of the demand
for the same. The result of the poll shall be deemed to be the
resolution of the meeting at which the poll is demanded. A demand for a
poll may be withdrawn at any time before it has been taken.
8.12 A poll demanded on a question of adjournment shall be taken at the
meeting without adjournment.
8.13 The demand for a poll shall not, unless the chairman so rules, prevent
the continuance of a meeting for the transaction of any business other
than the question on which a poll has been demanded or questions which
depend on bear upon that question.
8.14 Subject always to any contrary or specific provision of the Company Act,
a resolution that has been submitted to all of the members who would
have been entitled to vote thereon in person or by proxy at a meeting
and that has been consented to in writing by such members holding not
less than 75% of the shares of the Company shall be deemed to be an
ordinary resolution passed at a meeting.
8.15 Subject always to any contrary or specific provision of the Company Act,
a resolution consented to in writing by every member of the Company who
would have been entitled to vote thereon in person or by proxy at a
meeting shall be deemed to be a special resolution passed at a meeting.
8.16 Subject always to the provisions of the Company Act, whenever the
Company is not a reporting company, where all the members entitled to
attend and vote at the annual general meeting of the Company consent in
writing to all the business
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required to be transacted at the meeting, it is not necessary for the
Company to hold that annual general meeting.
PART 9 - VOTES OF MEMBERS
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9.1 Subject to any rights or restrictions for the time being attached to any
class or classes of shares, on a show of hands every member present in
person or by proxy has one vote, and on a poll every such member present
in person or by proxy has one vote for each share he holds on the record
date except that no member which is a corporation which is a subsidiary
of the Company shall be entitled to vote its shares of the Company, and
the Company itself shall not vote in respect of any share of the Company
that it has redeemed purchased, or otherwise acquired.
9.2 Any person who is not registered as a member but who is entitled to vote
at any meeting in respect of a share, may vote the share in the same
manner as if he were a member, but, unless the directors have previously
admitted his right to vote at that meeting in respect of the share, if
so required by any director he shall satisfy the directors of his right
to vote the share before the time for holding the meeting, or adjourned
meeting, as the case may be, at which he proposes to vote.
9.3 Where there are joint members registered in respect of any share, any
one of the joint members may vote at any meeting, either personally or
by proxy, in respect of the share as if he were solely entitled to it.
If more than one of the joint members is present at any meeting,
personally or by proxy, the joint member present whose name stands first
on the register in respect of the share shall alone be entitled to vote
in respect of that share. Several executors or administrators of a
deceased member in whose sole name any share stands shall, for the
purposes of this Article, be deemed joint members.
9.4 Subject to the provisions of the Company Act, a corporation which is a
member and is not a subsidiary of the Company may vote by up to two duly
authorized representatives, who are entitled to speak and vote, either
in person or by proxy, and in all other respects exercise the rights of
a member and those representatives shall be reckoned as a member for all
purposes in connection with any meeting of the Company.
9.5 A member for whom a committee has been duly appointed may vote, whether
on a show of hands or on a poll, by his committee and that committee may
appoint a proxyholder.
9.6 Unless the directors otherwise determine, the instrument appointing a
proxyholder and the power of attorney or other authority, if any, under
which it is signed, or a notarially certified copy thereof, shall be
deposited at a place specified for that purpose in the notice convening
the meeting, not less than 48 hours before the time for holding the
meeting at which the proxyholder proposes to vote, or, if no such place
is specified, then it shall be deposited with the chairman of the
meeting prior to the commencement of the meeting.
9.7 A vote given in accordance with the terms of an instrument of proxy is
valid notwithstanding the previous death or incapability of the member,
or revocation of
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the proxy, or of the authority under which the proxy was executed, or
the transfer of the share in respect of which the proxy is given, if,
but only if, no prior notice in writing of the death, incapability,
revocation or transfer has been received at the registered office of the
Company or by the chairmen of the meeting or adjourned meeting before
the vote is given.
9.8 An instrument appointing a proxyholder, whether for a specified meeting
or otherwise, shall be, subject to the requirements of the Company Act,
in the form approved by the directors.
9.9 A proxy or an instrument appointing a duly authorized representative of
a corporation shall be in writing, under the hand of the appointor or of
his attorney duly authorized in writing, or, if such appointor is a
corporation, either under its seal or under the hand of an officer or
attorney duly authorized.
9.10 Any person may act as a proxyholder whether or not he is entitled on his
own behalf to be present and to vote at the meeting at which he acts as
proxyholder.
9.11 The directors may, by resolution, fix in advance a date and time as the
record for the determination of the members entitled to receive notice
of a meeting of the members, but such record date shall not precede by
more than 50 days or by less than 21 days the date on which the meeting
is to be held. If the directors fail to fix in advance a date and time
as the record date in respect of all or any of the matters described
above for any meeting of the members of the Company, the following
provisions shall apply, as the case may be:
(a) the record date for the determination of the members entitled to
receive notice of a meeting of members shall be a the close of
business on the day immediately preceding the day on which notice
is given or sent;
(b) the record date for the determine of the members entitled to
receive the financial statements of the Company shall be the close
of business on the day on which the directors pass the resolution
relating thereto.
PART 10 - DIRECTORS
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10.1 The directors named in the Instrument of Continuation at the coming into
force of these Articles, shall be the directors of the Company unless
and until such person:
(a) dies;
(b) resigns in writing;
(c) is no longer qualified in accordance with these Articles or the
Company Act; or
(d) is removed from office by ordinary resolution of the members.
10.2 The management of the business of the Company shall be vested in the
directors and the directors may exercise all such powers and do all such
acts and things as the Company may exercise and do which are not by
these Articles or by the Company Act or otherwise lawfully directed or
required to be exercised or done by
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the Company in general meeting, but subject, nevertheless, to the
provisions of all laws affecting the Company and of these Articles and
to any rules, not being inconsistent with these Articles which are made
from time to time by the Company in general meeting, provided that no
rule made by the Company in general meeting shall invalidate any prior
act of the directors that would have been valid if that rule had not
been made.
10.3 The number of directors shall be at least one as long as the Company is
not a reporting company, and shall be at least three whenever the Company
is a reporting company, and no more than 25. Subject to the foregoing,
the number of directors may be determined from time to time by
resolution of the members, and provided that the number of directors
holding office shall not fall below the minimum numbers above mentioned,
the number of directors shall be automatically reduced upon the death,
resignation, removal or disqualification of any director and
automatically increased upon the appointment of any additional director
or directors in accordance with these Articles.
10.4 A director is not required to hold a share of the Company as
qualification to be a director, but in order to be qualified he must not
be:
(a) under the age of 18 years; or,
(b) found to be incapable of managing his own affairs by reason of
mental infirmity; or,
(c) a corporation; or,
(d) an undischarged bankrupt; or,
(e) unless the Supreme Court of British Columbia orders otherwise,
convicted within or without the Province of British Columbia of an
offence
(i) in connection with the promotion, formation, or management of
a corporation; or,
(ii) involving fraud,
unless five years have elapsed since the expiration of the period
fixed for suspension of the passing of sentence without sentencing,
or since a fine was imposed, or the term of imprisonment and
probation imposed, if any, was concluded, whichever is the latest,
but the disability imposed by the clause ceases upon a pardon being
granted under the Criminal Records Act (Canada);
and every director must not be subject to any other disqualifications as
to office according to the Company Act, provided always that no person
who is not ordinarily resident in Canada shall be appointed a director
of the Company if, upon his appointment, the majority of the directors
of the Company would not be persons ordinarily resident in Canada.
10.5 In the event of the death, resignation, removal or disqualification of a
director and his consequent vacating of office in accordance with these
Articles or the Company Act
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in circumstances in which the majority of the directors of the Company
would thereafter not be persons ordinarily resident in Canada, then the
last appointed director who is not ordinarily resident in Canada shall,
ipso facto, be disqualified from office and be no longer a director of
the Company. In the event there are on the happening of such an event
two or more persons who are not ordinarily resident in Canada who were
last appointed and appointed at the same time, then the Secretary shall
determine by lot which of the two or more so last appointed shall have
ceased to hold office by reason of this paragraph. Subject to the
foregoing, if a casual vacancy should occur in the board, the remaining
directors if constituting a quorum may appoint a qualified person to
fill the vacancy for the remainder of the term. Where a vacancy or
vacancies exist on the board, the remaining directors may exercise all
of the powers of the board so long as a quorum remains in office.
10.6 If the Company removes any director by ordinary resolution, it may by
ordinary resolution, appoint another person in his stead.
10.7 Any person not being a member of the Company who becomes a director
shall be deemed to have agreed to be bound by the provisions of the
Articles to the same extent as if he were a member of the Company.
10.8 Subject to the provisions of any ordinary resolution, the remuneration
of the directors as such may from time to time be determined by the
directors themselves, and such remuneration may be in addition to any
salary or other remuneration paid to any officer or employee of the
Company as such, who is also a director. The directors shall be repaid
such reasonable expenses as they may incur in and about the business of
the Company, and if any director shall perform any professional or other
services for the Company that are outside the ordinary duties of a
director, or shall otherwise be specifically occupied in or about the
Company's business, he may be paid a special remuneration to be fixed by
the directors in addition to any other remuneration that he may be
entitled to receive and the same shall be charged as part of the
ordinary working expenses. Unless otherwise determined by ordinary
resolution, the director on behalf of the Company may pay a gratuity or
pension or allowance on retirement to any person who has held any office
of employment with the Company or to his spouse or dependants and may
make contributions under any plan or to any fund and pay premiums for
the purchase or provision of any such gratuity, benefit, pension or
allowance.
10.9 The directors may from time to time and at any time by power of attorney
appoint any company, firm or person or body of persons to be the
attorney or attorneys of the Company for such purposes and with such
powers, authorities and discretion, not exceeding those vested in or
exercisable by the directors under these Articles, and for such period,
and subject to such conditions, as they may think fit.
10.10 A director who is in any way directly or indirectly interested in a
proposed contract or transaction with the Company shall disclose the
nature and extent of his interest at a meeting of the directors in
accordance with the provisions of the Company Act. A director shall not
vote in respect of any contract or transaction with the Company in which
he is interested, and if he shall do so his vote shall not be counted,
but he may be counted in the quorum present at the meeting at which such
vote is taken.
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10.11 A director may hold any office or place of profit under the Company
other than auditor, for such period, and on such terms as to
remuneration or otherwise, as the directors may determine. Subject to
compliance with the Company Act, no director shall be disqualified by
his office from contracting with the Company either with regard to his
tenure of any office or place of profit or as vendor, purchaser or
otherwise.
10.12 Any director may act by himself or his firm in any professional
capacity for the Company except as auditor, and he or his firm shall be
entitled to remuneration for professional services as if he were not a
director.
10.13 At each annual general meeting of the Company all the directors shall
retire from office, but are eligible for re-election and the members
shall by ordinary resolution elect a board of directors consisting of
the number of directors so retiring or determined by resolution or
recommendation of the directors. If in any calendar year the Company
does not hold an annual general meeting the directors then in office
shall be deemed to have been elected as directors on the last day on
which the meeting should have been held pursuant to the Company Act,
and the directors so elected may hold office until other directors are
appointed or elected or until the day on which the next annual general
meeting is held.
PART 11 - INDEMNIFICATION
-------------------------
11.1 The Company shall indemnify any director, officer, employee or agent of
the Company who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or proceeding and
whether civil, criminal or administrative, by reason of the fact that
he is or was a director, officer, employee, or agent of the Company or
any act or thing occurring at a time when he is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against all costs, charges and expenses, including legal
fees and any amount paid to settle the action or proceeding or satisfy
a judgment, if he acted honestly and in good faith with a view to the
best interests of the corporation or other legal entity or enterprise
as aforesaid of which he is or was a director, officer, employee or
agent, as the case may be, and exercised the care, diligence and skill
of a reasonably prudent person, and with respect to any criminal or
administrative action or proceeding, he had reasonable ground for
believing that his conduct was lawful; provided that no indemnification
of a director or former director of the Company, or director or former
director of a corporation in which the Company is or was a shareholder,
shall be made except to the extent approved by the Court pursuant to
the Company Act or any other statute. The determination of any action,
suit or proceeding by judgment, order, settlement, conviction or
otherwise shall not, of itself, create a presumption that the person
did not act honestly and in good faith and in the best interests of the
Company and did not exercise the care, diligence and skill of a
reasonably prudent person and, with respect to any criminal action or
proceeding, did not have reasonable grounds to believe that his conduct
was lawful.
11.2 The Company shall indemnify any person in respect of any loss, damage,
costs or expenses whatsoever incurred by him while acting as an
officer, employee or agent
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for the Company unless such loss, damage, costs or expenses shall arise
out of failure to comply with instructions, wilful act or default or
fraud by such person, in any of which events the Company shall only
indemnify such person if the directors, in their absolute discretion,
so decide or the Company by ordinary resolution shall so direct.
11.3 The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under any other Article, or any valid and lawful
agreement, vote of members or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall
entire to the benefit of the heirs, executors and administrators of
such person. The indemnification provided by this Article shall not be
exclusive of any powers, rights, agreements or undertakings which may
be legally permissible or authorized by or under any applicable law.
Notwithstanding any other provisions set forth in this Article, the
indemnification authorized by this Article shall be applicable only to
the extent that any such indemnification shall not duplicate indemnity
or reimbursement which that person has received or shall receive
otherwise than under this Part.
11.4 The directors are authorized from time to time to cause the Company to
give indemnities to any director, officer, employee, agent or other
person who has undertaken or is about to undertake any liability on
behalf of the Company or any corporation controlled by it.
11.5 Subject to the Company Act, no director or officer or employee for the
time being of the Company shall be liable for the acts, receipts,
neglects or defaults of any other director or officer or employee, or
for joining in any receipt or 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 by order of the Board for
the Company, or for the insufficiency or deficiency of any security in
or upon which any of the moneys of or belonging to the Company shall be
invested or for any loss or damages arising from the bankruptcy,
insolvency, or tortious act of any person, firm or corporation with
whom or which any moneys, securities or effects shall be lodged or
deposited or for any loss occasioned by any error of judgment or
oversight on his part or for any other loss, damage or misfortune
whatever which may happen in the execution of the duties of his
respective office or trust or in relation thereto unless the same shall
happen by or through his own wilful act or default, negligence, breach
of trust or breach of duty.
11.6 Directors may rely upon the accuracy of any statement of fact
represented by an officer of the Company to be correct or upon
statements in a written report of the auditor of the Company and shall
not be responsible or held liable for any loss or damage resulting from
the paying of any dividends or otherwise acting in good faith upon any
such statement.
11.7 The directors may cause the Company to purchase and maintain insurance
for the benefit of any person who is or was a director, officer,
employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
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enterprise against any liability incurred by him as a director,
officer, employee or agent.
PART 12 - PROCEEDINGS OF DIRECTORS
----------------------------------
12.1 Notice of the time and place of a directors meeting shall be given to
each director no less than two days (exclusive of the day on which the
notice is given) before the date of the meeting. For the first meeting
of directors held immediately after election at a meeting of members,
no notice of such meeting need be given, provided a quorum of directors
is present. Notice for the time and place of special meetings of
directors shall be delivered or faxed to each director not less than
four hours before that special meeting.
12.2 The directors, when there is more than one, may meet together at such
places as they think fit for the dispatch of business, and may adjourn
and otherwise regulate their meetings and proceedings as they see fit.
12.3 The quorum shall be a majority of the directors then in office, and when
an even number of directors are holding office, shall be one more than
half of their number.
12.4 Unless and until the directors shall elect one of their number to be
chairman of the board of directors, the president of the Company shall
be chairman of all meetings of the directors; but if at any meeting a
chairman elected by the directors or the president is not present
within 30 minutes after the time appointed for holding the meeting, the
directors present may choose someone of their number to be chairman at
that meeting.
12.5 Any director may waive notice of any meeting of directors. Accidental
omission to give notice of a meeting of directors to, or non-receipt of
notice by, any director, shall not invalidate the proceedings of any
meeting of the directors.
12.6 Except as provided in the Company Act, the Directors may participate in
a meeting of the Directors by means of telephone or other
communications facilities that permit all Directors participating in
the meeting to communicate with each other. A meeting so held in
accordance with this Article shall be deemed to be an actual meeting of
the board and any resolution passed at such meeting shall be as valid
and effectual as if it had been passed at a meeting where the Directors
are physically present. A Director participating in a meeting in
accordance with this Article shall be deemed to be present at the
meeting and to have so agreed and shall be counted in the quorum
therefore and be entitled to participate in and vote thereat.
12.7 The directors, or any committee of directors, may take any action
required or permitted to be taken by them and may exercise all or any
of the authorities, powers and discretion for the time being vested in
or exercisable by them by resolution either passed at the meeting at
which a quorum is present or authorized by resolution consented to in
writing signed by all the directors in accordance with the Company Act.
12.8 The directors may delegate any, but not all, of their powers to
committees consisting of such director or directors as they think fit.
A majority of the members of any such
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committee must be resident Canadians. Any committee so formed in the
exercise of the powers so delegated shall conform to any rules that may
from time to time be imposed on it by the directors, and shall report
every act or thing done in exercise of those powers to the first
meeting of the directors held after it has been done.
12.9 A committee of more than one director may elect a chairman of its
meetings and if no chairman is elected, or if at any meeting the
chairman is not present within 30 minutes after the time appointed for
holding the meeting, the directors present who are members of the
committee may choose one of their number to be chairman of the meeting.
12.10 The member or members of a committee may govern their procedure as they
think proper, subject to any rules imposed by the directors. Questions
arising shall be determined by the member, if there be only one, or by
a majority of votes of the members present, but in case of an equality
of votes the chairman of a committee shall not have a second or casting
vote.
12.11 Any director of the Company who may be absent from the Province of
British Columbia may file at the registered office of the Company by
letter or facsimile a waiver of notice of any meeting of the directors
and may, at any time and by one of the means mentioned aforesaid,
withdraw the waiver, but until the waiver is withdrawn, no notice of
meetings of directors need be sent to that director, and any and all
meetings of the directors of the Company held after receipt of such
waiver and held prior to its withdrawal shall, provided a quorum of the
directors is present, be valid and effective without notice of such
meeting given to that director.
12.12 Questions arising at any meeting of the directors shall be decided by a
majority of votes. In case of an equality of votes, the chairman shall
not have a second or casting vote.
12.13 No resolution proposed at a meeting of directors need be seconded, and
the chairman of any meeting is entitled to move or propose and vote
upon a resolution of the directors.
12.14 All acts done by any meeting of the directors or by a committee of
directors or by any person acting as a director shall, notwithstanding
that it shall be afterwards discovered that there was some defect in
the appointment of any such director or person acting as aforesaid, 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.
PART 13 - OFFICERS
------------------
13.1 The Company shall have a president and a secretary whom the directors
shall appoint. The President must be a director of the Company. Except
when the Company has only one member, the President and Secretary
shall be different persons. Subject to the foregoing, the board may
from time to time appoint such other officers as the board may
determine.
13.2 All appointments of officers shall be made at such remuneration,
whether by way of salary, fee, commission, participation in profits, or
otherwise, as the directors think
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fit, and every appointment of an officer by the directors shall be in
force until revoked by the directors or until the death or resignation
in writing of the officer unless otherwise provided in the resolution of
appointment.
13.3 Every officer of the Company who holds any office or possesses any
property whereby, whether directly or indirectly, duties or interests
might be created in conflict with his duties or interests as an officer
of the Company shall, in writing, disclose to the President the fact
and the nature, character and extent of the conflict.
13.4 The chairman of the board of directors, if any, shall, if present,
preside at all meetings of the board of directors and of members. He
shall sign such contracts, documents or instruments in writing as
require his signature and shall have such other powers and duties as
may from time to time be assigned to him by resolution of the directors.
13.5 The president, who may also be the chief executive officer of the
Company, shall exercise general supervision over the business and
affairs of the Company. In the absence or inability of the chairman of
the board of directors, the president shall, when present, preside at
all meetings of the board of directors and members; he shall sign such
contracts, documents or instruments in writing as require his signature
and shall have such other powers and shall perform such other duties as
may from time to time be assigned to him by resolution of the board of
directors or as are incident to his office.
13.6 The vice president, or, if more than one, the vice presidents, in order
of seniority, shall be vested with all the powers and shall perform all
the duties of the president in the absence or inability or refusal to
act of the president, provided, however, that a vice president, who is
not a director, shall not preside as chairman at any meeting of
members. The vice president or, if more than one, the vice presidents,
in order of seniority, shall sign such contracts, documents or
instruments in writing as require his or their signatures and shall
also have such other powers and duties as may from time to time be
assigned to him or them by resolution of the board of directors.
13.7 The secretary, if any, shall give or cause to be given notices for all
meetings of the board of directors, or committees thereof, if any, and
of members when directed to do so and shall have charge, subject to the
Articles, of the corporate records and of the corporate seal or seals,
if any. He shall sign such contracts, documents or instruments in
writing as require his signature and shall have such other powers and
duties as may from time to time be assigned to him by resolution of the
board of directors or as are incident to his office.
13.8 Subject to the provisions of any resolution of the board of directors,
the treasurer, if any, shall have the care and custody of all the funds
and securities of the Company and shall deposit the same in the name of
the Company in such bank or banks or with such other depositary or
depositaries as the board of directors may, by resolution, direct. He
shall prepare, maintain and keep or cause to be kept adequate books of
accounts and accounting records. He shall sign such contracts,
documents or instruments in writing as require his signature and shall
have such other powers and duties as may from time to time be assigned
to him by resolution of the board of directors or as are incident to
his office. He may be required to give such bond for
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the faithful performance of his duties as the board of directors, in
their absolute discretion, may require, and no director shall be liable
for failure to require any such bond or for the insufficiency of any
such bond or for any loss by reason of the failure of the Company to
receive any indemnity thereby provided.
13.9 The assistant secretary or, if more than one, the assistant
secretaries, in order of seniority, and the assistant treasurer or, if
more than one, the assistant treasurers, in order of seniority, shall
respectivey perform all the duties of the secretary and treasurer,
respectively, when required to do so. The assistant secretary or
assistant secretaries, if more than one, and the assistant treasurer or
assistant treasurers, if more than one, shall sign such contracts,
documents or instruments in writing as require his or their signatures
respectively and shall have such other powers and duties as may from
time to time be assigned to them by resolution of the board of
directors.
13.10 The board of directors may from time to time appoint from their number
a managing director, who is a resident Canadian, and may, subject to
the Company Act, delegate to him any of the powers of the board of
directors. The managing director shall conform to all lawful orders
given to him by the board of directors of the Company and shall, at all
reasonable times, give to the directors, or any of them, all
information they may require regarding the affairs of the Company. Any
agent of employee appointed by the managing director shall be subject
to discharge by the board of directors.
PART 14 - EXECUTION OF INSTRUMENTS
----------------------------------
14.1 Contracts, documents or instruments in writing requiring the signature
of the Company may be signed any director or any officer of the
Company, or by any person authorized by resolution of the board of
directors. All contracts, documents or instruments in writing so signed
shall be binding upon the Company without any further authorization or
formality. The board of directors is authorized from time to time, by
resolution, to appoint any officer or officers or any other person or
persons on behalf of the Company, either to sign contracts, documents
or instruments in writing. Where the Company has only one director and
officer being the same person, that person may sign all such contracts,
documents or other written instruments.
14.2 The directors may, but shall not be required to, provide a common seal
for the Company. They shall have power from time to time to destroy the
same or substitute a new seal in place of the seal destroyed or to
cause the affairs of the Company to be conducted without a common seal.
In the event a seal is provided, then unless otherwise provided by the
directors, the same may be affixed to any document by the signing
officers designated in Article 14.1.
14.3 Subject to the provisions of the Company Act, the directors may provide
for use in any other province, state, territory or country an official
seal, which shall be a facsimile of the common seal of the Company,
with the addition on its face of the name of the province, state,
territory or country where it is to be used.
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14.4 The signature of any officer of the Company may be printed,
lithographed, engraved or otherwise mechanically reproduced upon all
instruments executed or issued by the Company or any officer thereof;
and, subject to the Company Act, any instrument on which the signature
of any such person is so reproduced, shall be deemed to have been
manually signed by such person whose signature is so reproduced and
shall be as valid to all intents and purposes as if such instrument had
been signed manually, and notwithstanding that the person whose
signature is so reproduced may have ceased to hold office at the date of
the delivery or issue of such instrument. The term "instrument" as used
in this Article shall include all paper and electronic writings.
PART 15 - DIVIDENDS
-------------------
15.1 The directors may declare dividends and fix the date of record
therefore and the date for payment thereof.
15.2 Subject to the terms of shares with special rights or restrictions, all
dividends shall be declared according to the number of shares held.
15.3 Dividends may only be payable out of the profits of the Company. No
dividend shall bear interest against the Company. A transfer of a share
shall not pass the right to any dividend thereon before the
registration of the transfer in the register.
15.4 A resolution declaring a dividend may direct payment of the dividend
wholly or partly by the distribution of specific assets or of paid-up
shares, bonds, debentures or other debt obligations of the Company, or
in any one or more of those ways, and, where any difficulty arises in
regard to the distribution, the directors may settle the same as they
think expedient, and in particular may fix the value for distribution
of specific assets, and may determine that cash payments shall be made
to a member upon the basis of the value so fixed in place of fractional
shares, bonds, debentures or other debt obligations in order to adjust
the rights of all parties, and may vest any of those specific assets in
trustees upon such trusts for the persons entitled as may seem
expedient to the directors.
15.5 Any dividend or other moneys payable in cash in respect of a share may
be paid by cheque sent through the post to the member in a prepaid
letter, envelope or wrapper addressed to the member at his registered
address, or in the case of joint members, to the registered address of
the joint member who is the first named on the register, or to such
person and to such address as the member or joint members, as the case
may be, in writing direct. Any one of two or more joint members may
give effectual receipts for any dividend or other moneys payable or
assets distributable in respect of a share held by them.
15.6 No notice of the declaration of a dividend need by given to any member.
15.7 The directors may, before declaring any dividend, set aside out of the
profits of the Company such sums as they think proper as a reserve or
reserves which shall, at the discretion of the directors, be applicable
for meeting contingencies, or for equalizing dividends, or for any
other purpose to which the profits of the Company may be properly
applied, and pending that application may, at the like discretion,
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either be employed in the business of the Company or be invested in
such investments, as the directors may from time to time think fit,
including shares of the Company purchased or acquired in accordance
with these Articles.
15.8 The directors may capitalize any undistributed surplus on hand of the
Company and may from time to time issue as fully paid and
non-assessable any unissued shares or any bonds, debentures or other
debt obligations of the Company as a dividend representing such
undistributed surplus on hand or any part thereof.
15.9 Should any dividend result in any shareholder being entitled to a
fractional share, the directors shall have the right to pay such
shareholders the cash equivalent of such fractional part, and shall
have the further right to carry out such distribution and to adjust the
rights of the shareholders with respect thereto on as practical and
equitable a basis as possible.
PART 16 - ACCOUNTS
------------------
16.1 The directors shall cause records and books of accounts to be kept as
necessary to record properly the financial affairs and conditions of
the Company and to comply with the provisions of the Company Act and
all statutes applicable to the Company.
16.2 The fiscal period of the Company shall terminate on such day in each
year as the board of directors may from time to time, by resolution,
determine.
PART 17 - NOTICES
-----------------
17.1 A notice may be given to any member or director, either by personal
service or by sending it by post to him in a letter, envelope or
wrapper, or by facsimile addressed to the member or director at his
registered address or in any manner approved by the directors and not
prohibited under the Company Act.
17.2 A notice may be given by the Company to joint members in respect of a
share registered in their names by giving the notice to the joint
member first named in the register of members in respect of that share.
17.3 A notice may be given by the Company to the persons entitled to a share
in consequence of the death or bankruptcy of a member by sending it
through the post in a prepaid letter, envelope or wrapper addressed to
them by name, or by the title of representatives of the deceased or
trustee of the bankrupt, or by any like description, at the address, if
any, supplied for the purpose by the persons claiming to be so
entitled, or, until that address has been so supplied, by giving the
notice in any manner in which the same might have been given if the
death or bankruptcy had not occurred.
17.4 Any notice or document sent by post to, or left at, the registered
address of any member, shall, notwithstanding that member is then
deceased, and whether or not the Company has notice of his death, be
deemed to have been duly served in respect of any registered shares,
whether held solely or jointly with other persons by that deceased
member, until some other person is registered in his stead as the
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member or joint member in respect of those shares, and that service
shall for all purposes of these Articles be deemed a sufficient service
of such notice or document on his personal representatives and all
persons, if any, jointly interested with him in those shares.
17.5 Any notice sent by post shall be deemed to have been served on the
second day following that on which the letter, envelope or wrapper
containing the same is posted exclusive of any day upon which the mail
is not regularly delivered or handled in either the place of posting or
the place of delivery, and in proving service it is sufficient to prove
that the letter, envelope or wrapper containing the notice was properly
addressed and put in a Canadian government post office, postage
prepaid, subject always to it being proved by the person to whom the
notice was addressed that the mail was not regularly delivered or
handled as aforesaid on or between the day of posting and the day of
delivery.
17.6 Notice of every general meeting shall be given in the manner
hereinbefore authorized to:
(a) every member holding a share or shares carrying the right to vote
at such meetings on the record date or, if no record date was
established by the directors, on the date of personal service or
mailing;
(b) every person upon whom the ownership of a share has devolved by
reason of his being a legal personal representative or a trustee
in bankruptcy of a member where the member, but for his death or
bankruptcy, would be entitled to receive notice of the meeting;
and
(c) the auditor of the Company.
Subject to any provisions in any instrument of the Company or in the
special rights or restrictions attached to any shares, no other person
is entitled to receive notice of general meetings.
PART 18 - FEES
--------------
18.1 The Company may charge the following fee to issue a new certificate in
exchange for an existing certificate or a defaced or worn out
certificate or to replace a lost or destroyed certificate:
Per new certificate: $1.00
PART 19 - TRANSFER OF SHARES, RESTRICTIONS
------------------------------------------
19.1 A share or shares in the Company may be transferred by an instrument of
transfer and in accordance with these Articles by any member, or the
personal representative of any deceased member or the trustee in
bankruptcy of any bankrupt member or by the liquidator of any member
which is a corporation, only with the approval of a resolution of the
directors.
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19.2 Notwithstanding anything otherwise provided in these Articles, the
directors may, in their absolute discretion, refuse to allow and
decline to register any transfer of shares to any person, even if the
foregoing conditions and other provisions of these Articles are
complied with, and the directors shall not be bound or required to
disclose their reasons for any such refusal to anyone.
19.3 The number of shareholders of the Company is limited to 50, excluding
persons who are currently or were formerly employees of the Company.
Where two or more persons jointly hold one (1) or more shares, such
persons shall be considered as one and the same shareholder.
19.4 All public offerings or public invitations to subscribe for or purchase
securities is prohibited.
PART 20 - SPECIAL RIGHTS AND RESTRICTIONS
-----------------------------------------
CLASS A COMMON SHARES
- ---------------------
20.1 The holders of the Class A Common Shares shall be entitled to one vote
for each such share so held at all meetings of members.
20.2 Subject the rights of the holders of the Class B Preferred Shares and
any Class C Preferred Shares established by series, the directors shall
be at liberty in their absolute discretion to declare dividends on any
one or more class or classes of the Class A Common Shares, the Class B
Preferred Shares or the Class C Preferred Shares to the exclusion of the
others.
20.3 Subject to the rights of holders of the Class B Preferred Shares and
any Class C Preferred Shares established by series, in the event of the
liquidation, dissolution or wind-up of the Company, whether voluntary
or involuntary, the holders of the Class A Common Shares shall be
entitled to participate on a pro rata basis in the distribution of the
remaining assets of the Company.
CLASS B PREFERRED SHARES
- ------------------------
20.4 Subject to the rights of the Class C Preferred Shares, the holders of
Class B Preferred Shares shall be entitled to receive a preferred
non-cumulative dividend the rate of which shall be determined from time
to time by the board of directors of the Company, such dividend to be
payable at such time and in such manner as shall be determined by the
board.
20.5 Subject to the rights of the Class C Preferred Shares, in the event of
winding-up or liquidation or any other distribution of the assets of
the Company, the Class B Preferred Shares shall rank prior to all other
shares of the Company as to the payment of the paid-up share capital
and any dividends attributable thereto. The Class B Preferred Shares
shall not otherwise share in the profits and surplus assets of the
Company.
20.6 Subject to the terms of the Company Act, the holders of Class B
Preferred Shares shall not, as such, be entitled to receive notice of,
or attend or vote at, any meeting of members of the Company.
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20.7 Subject to the Company Act, the Class B Preferred Shares shall be
redeemable at the option of the Company, upon a 30-day notice in
writing, at a price that shall include the amount paid plus any
declared and unpaid dividends. Where only part of the shares are
redeemed, such redemption shall be made on a pro rata basis of the
shares held by all members, without taking fractional shares into
consideration.
20.8 Subject to the Company Act, the Company shall have the right, where it
deems appropriate to do so and without notice, to purchase by mutual
agreement all or part of the then issued Class B Preferred Shares, at
the best possible price. Where only part of the shares are purchased,
such purchase shall be made on a pro rata basis as set forth hereabove
or in any other manner as may be agreed upon unanimously by the holders
of the outstanding Class B Preferred Shares.
20.9 On the date of purchase, the Class B Preferred Shares thus redeemed or
purchased shall be cancelled.
CLASS C PREFERRED SHARES
- ------------------------
20.10 Class C Preferred Shares may be issued by the directors in one or more
series, and the directors may, from time to time, by resolution passed:
(a) alter the Memorandum of the Company to fix the number of shares
in, and to determine the designation of the shares of, each
series; and
(b) alter the Memorandum or the Articles of the Company to create,
define and attach special rights and restrictions to the shares
of each series, subject to the special rights and restrictions
attached to the shares of the Class, including without in any way
limiting or restricting the generality of the foregoing, the
following:
(i) the rate, amount or method of calculation of dividends, if
any, and whether the same are subject to adjustments;
(ii) whether such dividends are cumulative, partly cumulative or
non-cumulative;
(iii) the dates, manner and currency of payments of dividends and
the dates from which dividends accrue or become payable;
(iv) if redeemable or purchasable, the redemption or purchase
prices and the terms and conditions of redemption or
purchase, with or without provision for sinking or similar
funds;
(v) any conversion, exchange or reclassification rights; and
(vi) any other rights, privileges, restrictions and conditions
not inconsistent with these provisions.
20.11 The Class A Preferred Shares of each series shall, with respect to the
payment of dividends and the distribution of assets in the event of the
liquidation, dissolution or winding-up of the Company, whether
voluntary or involuntary, or any other distribution of the assets of
the Company among its members for the purpose of winding-up its
affairs, rank on a parity with the Class C Preferred Shares of every
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other series and be entitled to a preference over the Class A Common
Shares, Class B Preferred Shares and any other class ranking junior to
the Class C Preferred Shares. The Class C Preferred Shares of any
series shall also be entitled to such other preferences, not
inconsistent with these provisions, over the Class A Common Shares, the
Class B Preferred Shares and the shares of any other class ranking
junior to the Class C Preferred Shares, as may be fixed in accordance
with Article 20.10.
20.12 The approval of the holders of Class C Preferred Shares as a class, as
to any matters referred to in these provisions or required by law may
be given as specified below:
(a) any approval given by the holders of the Class C Preferred Shares
shall be deemed to have been sufficiently given if it shall have
been given in writing by the holders of all of the outstanding
Class C Preferred Shares or by a resolution passed at a meeting of
holders of Class C Preferred Shares duly called and held for such
purpose upon not less than 21 days' notice at which the holders
of at least a majority of the outstanding Class C Preferred
Shares are present or are represented by proxy and carried by the
affirmative vote of not less than 75% of the votes cast at such
meeting. If at any such meeting the holders of a majority of the
outstanding Class C Preferred Shares are not present or
represented by proxy within 30 minutes after the time appointed
for such meeting, then the meeting shall be adjourned to such
date not less than 15 days thereafter and to such time and place
as may be designated by the chairman of the meeting and not less
than ten days' written notice shall be given of such adjourned
meeting but it shall not be necessary in such notice to specify
the purpose for which the meeting was originally called. At such
adjournment meeting the holders of Class C Preferred Shares
present or represented by proxy shall form a quorum and may
transact the business for which the meeting was originally called
and a resolution passed thereat by the affirmative vote of not
less than 75% of the votes cast at such meeting shall constitute
the approval of the holders of the Class C Preferred Shares;
and
(b) on every poll taken at any such meeting each holder of Class C
Preferred Shares shall be entitled to one vote in respect of each
Class C Preferred Share held. Subject to the foregoing, the
formalities to be observed with respect to the giving or waiving
of notice of any such meeting and the conduct thereof shall be
those from time to time prescribed in the Company Act and the
articles of the Company with respect to meetings of shareholders.
20.13 Except as otherwise provided in the Company Act or these provisions,
the holders of Class C Preferred Shares shall not, as such, be entitled
to receive notice of, or attend or vote at, any meeting of the members
of the Company.