AMALGAMATION AGREEMENT
THIS AMALGAMATION AGREEMENT
(the “Agreement”) is
made effective as of the 21st day of
April, 2009 (the “Effective
Date”).
AMONG:
a
company incorporated under the laws of the state of Nevada, with an
executive
office at 0000 Xxxx
Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000
(“Cicero”)
AND:
INTELIMAX
MEDIA INC.
a
company incorporated under the laws of the province of British Columbia, with an
executive office at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(“Intelimax”)
WHEREAS:
X.
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Xxxxxx and
Intelimax (collectively, the “Amalgamating Companies”)
desire for business reasons to amalgamate (the “Amalgamation”) under the
authority conferred by the Business Corporations
Act (British Columbia), as amended (the “Act”), and the
Amalgamating Companies have agreed to amalgamate and continue as one
company (the “Amalgamated
Company”) on the terms and subject to the conditions set forth in
this Agreement;
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X.
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Xxxxxx was
incorporated in the state of Nevada on October 19, 2007, and its
authorized share structure consists of (i) 150,000,000 shares of common
stock with a par value of $0.00001 and (ii) 20,000,000 shares of preferred
stock with a par value of $0.00001;
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C.
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Intelimax was
incorporated on April 17, 2006 under the laws of the Province of British
Columbia, and its authorized share capital consists of an unlimited number
of common shares without par value;
and
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D.
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The
Amalgamating Companies desire that the Amalgamation become effective as
soon as practicable after the completion of the closing of the
transactions contemplated by this Agreement (the “Closing”).
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1
NOW THEREFORE this Agreement
witnesses that in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto covenant and agree as
follows:
1.
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AMALGAMATION
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1.1
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Subject to
the provisions of this Agreement, the Amalgamating Companies hereby agree
to amalgamate effective as of the Closing under the provisions of the Act
and to continue as the Amalgamated Company on the terms and subject to the
conditions set forth in this
Agreement.
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1.2
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The name of
the Amalgamated Company shall be “Intelimax Media Inc.”,
which name shall be reserved by Cicero with the Registrar of Companies of
the province of British Columbia (the “Registrar of
Companies”).
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1.3
|
The form of
the Amalgamation Application and the Articles of the Amalgamated Company
shall, subject to amendment, alteration or addition under the Act, be in
the forms set forth in Schedules A and B, respectively, attached to this
Agreement.
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1.4
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There will be
no restrictions on the business the Amalgamated Company may carry on or
the powers it may exercise.
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1.5
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The mailing
and delivery address of the registered and records offices of the
Amalgamated Company shall be at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0, until otherwise
determined.
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1.6
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The
authorized share capital of the Amalgamated Company shall consist of (i)
150,000,000 common shares with a par value of $0.00001, and (ii)
20,000,000 preferred shares with a par value of
$0.00001.
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1.7
|
The number of
directors of the Amalgamated Company, until amended in accordance with the
Articles of the Amalgamated Company, shall be set at four
(4). The first directors of the Amalgamated Company shall be as
follows:
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Xxxxxxx Xxxxx
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000 Xxx Xxxxx, Xxxxxx, XX, X0X 0X0 |
Xxxxxxx Xxxxx | 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX, X0X 0X0 |
Xxxx Xxxx | 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0 |
Xxxxxxx Xxxxxxx | 0000 Xxxxx Xxxxx, Xxxxxxxxx, XX, X0X 0X0 |
1.8
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The directors
listed in subsection 1.7 of this Agreement shall carry on and continue the
management and operation of the Amalgamated Company in such manner as they
determine, subject to and in accordance with the articles of the
Amalgamated Company and the provisions of the
Act.
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1.9
|
The following
persons shall hold the offices set forth opposite their respective names
and shall carry out their respective duties until they are relieved from
such offices by the directors of the Amalgamated Company or until they
sooner cease to hold such office:
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Xxxxxxx Xxxxx | President and Secretary |
Xxxxxxx Xxxxx | Chief Executive Officer |
Xxxx Xxxx | Chief Financial Officer and Treasurer |
Xxxxxxx Xxxx | Chief Technical Officer |
2
1.10
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The first
annual reference date of the Amalgamated Company shall be set at a date no
later than 18 months after the Amalgamation Application is accepted by the
Registrar of Companies.
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1.11
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Upon the
issuance of an Amalgamation Certificate by the Registrar of Companies
pursuant to the Act, the issued and unissued shares of the Amalgamating
Companies shall be cancelled or exchanged for shares of the Amalgamated
Company as follows:
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(a)
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all of the
unissued shares of each of the Amalgamating Companies shall be
cancelled;
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(b)
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each one
post-split issued and outstanding share of common stock of Cicero shall be
exchanged for one common share in the capital of the Amalgamated
Company;
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(c)
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each one
issued and outstanding common share of Intelimax shall be exchanged for
one common share in the capital of the Amalgamated
Company;
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and at the Closing
the cancellations and exchanges set forth in this subsection 1.11 shall be
deemed to have been made.
1.12
|
Upon the
issuance of an Amalgamation Certificate by the Registrar of Companies
pursuant to the Act, each one issued and outstanding common share purchase
warrant of Intelimax shall be exchanged for one common share purchase
warrant of the Amalgamated Company on the same terms and subject to the
same conditions as the existing
warrants.
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1.13
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After the
Amalgamation becomes effective, the Amalgamated Company shall request that
the shareholders of each Amalgamating Company surrender their share
certificates for cancellation in exchange for receiving certificates
representing shares of the Amalgamated Company on the basis set forth in
subsection 1.11. Until such surrender and exchange, the share
certificate or certificates representing shares of the Amalgamating
Companies held by each such shareholder shall constitute evidence of each
such shareholder’s right to be registered as a shareholder of the
Amalgamated Company.
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1.14
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The
Amalgamated Company shall possess all the property, rights and privileges
and shall be subject to all the liabilities, obligations, contracts,
disabilities, claims and debts of the Amalgamating Companies as such exist
immediately prior to the
Amalgamation.
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1.15
|
All rights of
creditors against each of the Amalgamating Companies and all liens upon
their assets shall be unimpaired by the Amalgamation and all debts,
obligations, contracts, liabilities and duties of each of the Amalgamating
Companies thenceforth shall attach to the Amalgamated Company and may be
enforced against it.
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1.16
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No action or
proceeding by or against any of the Amalgamating Companies shall xxxxx or
be affected by the Amalgamation.
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1.17
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The financial
year-end of the Amalgamated Company shall be March 31 until changed by the
directors of the Amalgamated
Company.
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3
2.
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REPRESENTATIONS
AND WARRANTIES
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2.1
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Representations
and Warranties of Cicero
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(a)
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Organization;
Power. Cicero is a company duly incorporated, validly existing and
in good standing under the laws of the state of Nevada, and has all
requisite corporate power and authority to enter into this Agreement and
to perform its obligations
hereunder.
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(b)
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Authorization.
The execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary corporate action of
Cicero. This Agreement, when executed and delivered by the
parties thereto, shall constitute a legal, valid, and binding obligation
of Cicero, enforceable against Cicero in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency
and similar laws affecting the rights of creditors generally or judicial
limits on equitable remedies.
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(c)
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Authorized Share
Structure. As of the date of this Agreement, the
authorized share structure of Cicero consists of (i) 150,000,000 shares of
common stock with a par value of $0.00001, of which 34,040,000 are issued
and outstanding as of the date hereof, and (ii) 20,000,000 shares of
preferred stock with a par value of $0.00001, none of which are issued and
outstanding as of the date hereof. Cicero has no other options,
warrants or other rights, agreements or commitments of any character
whatsoever convertible into, or exchangeable or exercisable for or
otherwise requiring the issuance, sale or transfer by Cicero of any shares
of Cicero or any securities convertible into, or exchangeable or
exercisable for, or otherwise evidencing a right to acquire any shares of
Cicero. All outstanding shares of Cicero have been duly
authorized and are validly issued as fully paid and non-assessable. Cicero
shall have no more than 7,500,000 post-split shares of common stock issued
and outstanding as of the Closing.
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(d)
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Conduct of
Business. Cicero is not in default under, and no condition exists
that with notice or lapse of time or both would constitute a default of
Cicero under:
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(i)
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any mortgage,
loan agreement, indenture, evidence of indebtedness, or other instrument
evidencing borrowed money to which Cicero is a party or by which Cicero is
bound; or
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(ii)
|
any judgment,
order or injunction of any court, arbitrator or governmental agency that
would reasonably be expected to affect materially and adversely Cicero or
Cicero’s business, financial condition or results of
operations.
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(e)
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No Adverse
Consequences. The execution, delivery and performance of this
Agreement by Cicero will not:
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(i)
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result in the
creation or imposition of any lien, security interest, charge or
encumbrance on any of Cicero’s assets or
properties;
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(ii)
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violate or
conflict with, or result in a breach of, any provision of Cicero’s
Articles of Incorporation or
Bylaws;
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(iii)
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violate any
law, judgment, order, injunction, decree, rule, regulation or ruling of
any governmental authority applicable to Cicero;
or
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(iv)
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conflict
with, constitute grounds for termination or acceleration of, result in the
breach of the terms, conditions, or provisions of, result in the loss of
any benefit to Cicero under, or constitute a default under (whether by
virtue of the application of a “change of control” provision or otherwise)
any agreement, instrument, license or permit to which either Cicero is a
party or by which Cicero is bound.
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(f)
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Liabilities.
None of the assets or properties of Cicero is subject to any material
liability or obligation.
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(g)
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Litigation.
There are no actions, suits, proceedings, orders, investigations, or
claims pending or, to the knowledge of Cicero, threatened against Cicero
or any of its properties or assets, at law or in equity, and Cicero is not
subject to any arbitration proceedings or, to its knowledge, any
governmental investigations or
inquiries.
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4
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(h)
|
Tax Matters.
Cicero has filed all local and foreign tax returns and reports required to
be filed and has paid all taxes shown as due thereon, and no taxing
authority has asserted any deficiency in the payment of any tax or has
informed Cicero that it intends to assert any such deficiency or to make
any audit or other investigation of Cicero for the purpose of determining
whether such a deficiency should be asserted against
Cicero.
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(i)
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Compliance with
Laws. Cicero is in material compliance with all laws, statutes,
ordinances, regulations, orders, judgments or decrees applicable to it,
the enforcement of which, if Cicero were not in compliance therewith,
would have a material adverse effect on the business and operations of
Cicero. Cicero has not received any notice of any asserted present or past
failure by Cicero to comply with such laws, statutes, ordinances,
regulations, orders, judgments or
decrees.
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(j)
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Environmental, Health
and Safety Matters. Cicero has obtained, has complied with, and is
in compliance with, in each case in all material respects, all permits,
licenses and other authorizations that are required pursuant to applicable
environmental, health and safety legislation for the operation of Cicero’s
business. Cicero has not received any written or oral notice, report or
other information regarding any actual or alleged material violation of
any applicable environmental, health and safety legislation, or any
material liabilities or potential material liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise), including any material
investigatory, remedial or corrective obligations, relating to its
business arising under applicable environmental, health and safety
legislation.
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(k)
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Financial
Statements. The financial statements of Cicero which are publicly
available on XXXXX online have been prepared in accordance with generally
accepted accounting principles in the United
States.
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(l)
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Accuracy of
Representations and Warranties. None of the representations and
warranties of Cicero contain any untrue statement of material fact or omit
any material fact necessary to the statements contained in this Agreement
not misleading.
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2.2
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Representations
and Warranties of Intelimax
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(a)
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Organization;
Power. Intelimax is a company duly incorporated, validly existing
and in good standing under the laws of the province of British Columbia,
and has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations
hereunder.
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(b)
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Authorization.
The execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary corporate action of Intelimax.
This Agreement, when executed and delivered by the parties thereto, shall
constitute a legal, valid and binding obligation of Intelimax, enforceable
against Intelimax in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting the rights of creditors generally or judicial
limits on equitable remedies.
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(c)
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Authorized Share
Capital. As of the date of this Agreement, the
authorized share capital of Intelimax consists of an unlimited number of
common shares without par value of which 15,929,157 are issued and
outstanding as of the date hereof and 785,000 common share purchase
warrants exercisable into 785,000 common shares issued and outstanding as
of the date hereof. Intelimax has no other options, warrants or other
rights, agreements or commitments of any character whatsoever convertible
into, or exchangeable or exercisable for or otherwise requiring the
issuance, sale or transfer by Intelimax of any shares of Intelimax or any
securities convertible into, or exchangeable or exercisable for, or
otherwise evidencing a right to acquire any shares of Intelimax. All
outstanding shares of Intelimax have been duly authorized and are validly
issued as fully paid and
non-assessable.
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(d)
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Conduct of
Business. Intelimax is not in default under, and no condition
exists that with notice or lapse of time or both would constitute a
default of Intelimax under:
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(i)
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any mortgage,
loan agreement, indenture, evidence of indebtedness, or other instrument
evidencing borrowed money to which Intelimax is a party or by which
Intelimax is bound; or
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(ii)
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any judgment,
order or injunction of any court, arbitrator or governmental agency that
would reasonably be expected to affect materially and adversely Intelimax
or Intelimax’s business, financial condition or results of
operations.
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(e)
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No Adverse
Consequences. The execution, delivery and performance of this
Agreement by Intelimax will not:
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(i)
|
result in the
creation or imposition of any lien, security interest, charge or
encumbrance on any of Intelimax’s assets or
properties;
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5
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(ii)
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violate or
conflict with, or result in a breach of, any provision of Intelimax’s
Articles;
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(iii)
|
violate any
law, judgment, order, injunction, decree, rule, regulation or ruling of
any governmental authority applicable to Intelimax;
or
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(iv)
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conflict
with, constitute grounds for termination or acceleration of, result in the
breach of the terms, conditions, or provisions of, result in the loss of
any benefit to Intelimax under, or constitute a default under (whether by
virtue of the application of a “change of control” provision or otherwise)
any agreement, instrument, license or permit to which either Intelimax is
a party or by which Intelimax is
bound.
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(f)
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Liabilities.
None of the assets or properties of Intelimax is subject to any material
liability or obligation.
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(g)
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Litigation.
There are no actions, suits, proceedings, orders, investigations or claims
pending or, to the knowledge of Intelimax, threatened against Intelimax or
any of its properties or assets, at law or in equity, and Intelimax is not
subject to any arbitration proceedings or, to its knowledge, any
governmental investigations or
inquiries.
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(h)
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Tax Matters.
Intelimax has filed all Canadian, provincial, local and foreign tax
returns and reports required to be filed and has paid all taxes shown as
due thereon, and no taxing authority has asserted any deficiency in the
payment of any tax or has informed Intelimax that it intends to assert any
such deficiency or to make any audit or other investigation of Intelimax
for the purpose of determining whether such a deficiency should be
asserted against Intelimax.
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(i)
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Compliance with
Laws. Intelimax is in material compliance with all laws, statutes,
ordinances, regulations, orders, judgments or decrees applicable to it,
the enforcement of which, if Intelimax were not in compliance therewith,
would have a material adverse effect on the business and operations of
Intelimax. Intelimax has not received any notice of any asserted present
or past failure by Intelimax to comply with such laws, statutes,
ordinances, regulations, orders, judgments or
decrees.
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(j)
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Environmental, Health
and Safety Matters. Intelimax has obtained, has complied with, and
is in compliance with, in each case in all material respects, all permits,
licenses and other authorizations that are required pursuant to applicable
environmental, health and safety legislation for the operation of
Intelimax’s business. Intelimax has not received any written or oral
notice, report or other information regarding any actual or alleged
material violation of any applicable environmental, health and safety
legislation, or any material liabilities or potential material liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise),
including any material investigatory, remedial or corrective obligations,
relating to its business arising under applicable environmental, health
and safety legislation.
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(k)
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Permits and
Licenses. Intelimax holds, and at all times has held, all permits
necessary to operate its business pursuant to all applicable statutes,
laws, ordinances, rules and regulations of all government bodies, agencies
and other authorities, except when the failure to hold any permit would
not have a material adverse effect on its business. Intelimax is in
material compliance with all the terms of each permit, and there are no
claims of material violation by Intelimax of any permit. All applicable
government entities and agencies that have issued any permits have
consented or, prior to the Closing, shall have consented (when such
consent is necessary) to the Amalgamation without requiring any
modification of Intelimax’s rights or obligations under such
permits.
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(l)
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Financial
Statements. The financial statements of Intelimax shall have been
prepared in accordance with generally accepted accounting principles in
the Canada.
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(m)
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Accuracy of
Representations and Warranties. None of the
representations or warranties of Intelimax contain any untrue statement of
material fact or omit any material fact necessary to make the statements
contained in this Agreement not
misleading.
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2.3
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All
representations, warranties, covenants and agreements made in this
Agreement or in any exhibit, schedule, certificate or agreement delivered
in accordance with this Agreement shall survive the Closing for a period
of not less than six (6) months.
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6
3.
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CONDITIONS
PRECEDENT
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3.1
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Conditions
Precedent to Cicero’s Obligations
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(a)
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Financial
Statements. Prior to the Closing, Intelimax shall have furnished
Cicero with:
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(i)
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audited
financial statements for the fiscal years ended March 31, 2007 and March
31, 2008; and
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(ii)
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auditor
reviewed financial statements for the nine month period ended December 31,
2008 or audited financial statements for the year ended March 31,
2009.
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(b)
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Available
Information. Prior to the Closing, Intelimax shall have provided
Cicero with all available information regarding the business of
Intelimax.
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(c)
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Shareholder
Adoption. Prior to the Closing, Intelimax shall have submitted this
Agreement to its shareholders for approval and adoption, and the
shareholders of Intelimax shall have adopted this Agreement pursuant to
section 271 of the Act.
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(d)
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Representations and
Warranties. Each of the representations and warranties made by
Intelimax in this Agreement shall be true and correct in all material
respects at the Closing with the same effect as though such
representations and warranties were made at that time, except for changes
contemplated, permitted or required by this Agreement. Intelimax shall
have performed and complied with all agreements, covenants and conditions
required of Intelimax under this
Agreement.
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(e)
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No Proceeding or
Litigation. No action, investigation, suit or proceeding by or
before any court, government or regulatory authority shall have been
commenced and be continuing against Intelimax, and no action,
investigation, suit or proceeding shall have been threatened against
Intelimax or any of its affiliates, associates, officers or directors,
seeking to restrain, prevent or alter the terms of this Agreement,
questioning the validity or legality of this Agreement or seeking damages
in connection with this Agreement.
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(e)
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Material
Change. Intelimax shall not have suffered any material adverse
change in its business, prospects, financial condition, working capital,
assets, liabilities (absolute, accrued, contingent, or otherwise) or
operations.
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(f)
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Corporate
Action. Intelimax shall have furnished Cicero with a copy,
certified by an authorized signatory of Intelimax, of Intelimax’s
resolutions authorizing the execution, delivery and performance of this
Agreement.
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3.2
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Conditions
Precedent to Intelimax’s
Obligations
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(a)
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Private
Placement. Prior to the Closing, Cicero shall have raised a minimum
of $35,000 through a private placement of shares of its common stock at a
price of $0.005 per share (the “Private
Placement”).
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(b)
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Reverse Split.
Prior to the Closing and the Private Placement, Cicero shall have executed
a 100 to 1 reverse split of the issued and outstanding shares of its
common stock.
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(c)
|
Conversion and
Continuation. Prior to the Closing, Cicero shall have converted out
of the corporate jurisdiction of the state of Nevada pursuant to Chapter
92A of the Nevada Revised Statutes and shall have continued into the
corporate jurisdiction of the province of British Columbia pursuant to the
Business Corporations
Act (British Columbia) (the “Continuation”).
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(d)
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Director
Appointment. Prior to the Closing, Cicero shall appoint Xxxxxxx
Xxxxx to its Board of Directors.
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(e)
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Available
Information. Prior to the Closing, Cicero shall have provided
Intelimax with all available information regarding the business of
Cicero.
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7
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(f)
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Shareholder
Adoption. Prior to the Closing, Cicero shall have submitted this
Agreement to the holders of any shares of any class or series of Cicero
for approval and adoption, and the holders of any shares of any class or
series of Cicero shall have adopted this Agreement pursuant to the Nevada
Revised Statutes.
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(g)
|
Representations and
Warranties. Each of the representations and warranties made by
Cicero in this Agreement shall be true and correct in all material
respects at the Closing with the same effect as though such
representations and warranties were made at that time, except for changes
contemplated, permitted or required by this Agreement. Cicero shall have
performed and complied with all agreements, covenants, and conditions
required of Cicero under this
Agreement.
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(h)
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No Proceeding or
Litigation. No action, investigation, suit or proceeding by or
before any court, government or regulatory authority shall have been
commenced and be continuing against Cicero, and no action, investigation,
suit or proceeding shall have been threatened against Cicero or any of its
affiliates, associates, officers or directors, seeking to restrain,
prevent or alter the terms of this Agreement, questioning the validity or
legality of this Agreement or seeking damages in connection with this
Agreement.
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(i)
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Material
Change. Cicero shall not have suffered any material adverse change
in its business, prospects, financial condition, working capital, assets,
liabilities (absolute, accrued, contingent, or otherwise) or
operations.
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(j)
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Corporate
Action. Cicero shall have furnished Intelimax with a copy,
certified by an authorized signatory of Cicero, of Cicero’s resolutions
authorizing the execution, delivery and performance of this
Agreement.
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4.
|
COVENANTS
OF INTELIMAX
|
4.1
|
Intelimax
acknowledges that Cicero is a fully reporting public company in the United
States and that the Amalgamated Company shall become subject to the filing
requirements of British Columbia Instrument 51-509 following the
Continuation and Amalgamation, and covenants to ensure that the
Amalgamated Company remains current with all applicable securities laws
and regulations.
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4.2
|
Intelimax
shall ensure that the Amalgamated Company consents to removing the
restrictive legends on any shares of the common stock of the Amalgamated
Company held by First Centerline Investments Ltd., or any permitted
transferee thereof, 12 months after the Closing, in accordance with
applicable U.S. securities laws.
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4.3
|
If, due to no
fault of Cicero, this Agreement is terminated in accordance with section
7, Intelimax shall repay any and all legal costs incurred by Cicero in
connection with the Amalgamation, including any costs associated with the
drafting of this Agreement, up to a maximum of $20,000. Any such repayment
shall be delivered to Cicero within 30 days of such termination. This
provision shall survive the termination of this Agreement until such time
as Intelimax is able to fulfill the obligations created
herein.
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4.4
|
Intelimax
shall submit to the British Columbia Securities Commission Personal
Information Forms for each of the Amalgamated Company’s officers and
directors within 10 days of the
Closing.
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4.5
|
From time to
time, as and when required by the Amalgamated Company or by its
successors or assigns, Intelimax shall execute and deliver such deeds,
assignments and other instruments, and shall take or cause to be
taken such further action, as shall be appropriate, advisable or
necessary in order to vest, perfect or confirm, on record or
otherwise, in the Amalgamated Company the title to and possession of
all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of Intelimax, and otherwise to carry
out the purposes of this Agreement. The officers and directors of the
Amalgamated Company are fully authorized in the name of and on
behalf of Intelimax, or otherwise, to take any and all such actions
and to execute and deliver any and all such deeds and other
instruments as may be necessary or appropriate to accomplish the
foregoing.
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8
5.
|
COVENANTS
OF CICERO
|
5.1
|
At the
Closing, Xxxxxxx Xxxxxxxx shall resign from her positions as an officer
and director of Cicero.
|
5.2
|
At least 15
days prior to the Closing, the board of directors of Cicero shall approve
the appointment of Xxxxxxx Xxxxx to its board of
directors.
|
5.3
|
From time to
time, as and when required by the Amalgamated Company or by its
successors or assigns, Cicero shall execute and deliver such deeds,
assignments and other instruments, and shall take or cause to be
taken such further action, as shall be appropriate, advisable or
necessary in order to vest, perfect or confirm, on record or
otherwise, in the Amalgamated Company the title to and possession of
all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of Cicero, and otherwise to carry
out the purposes of this Agreement. The officers and directors of the
Amalgamated Company are fully authorized in the name of and on
behalf of Cicero, or otherwise, to take any and all such actions and
to execute and deliver any and all such deeds and other instruments
as may be necessary or appropriate to accomplish the
foregoing.
|
6.
|
JOINT
COVENANTS
|
6.1
|
Without
limiting any other obligations of Cicero and Intelimax herein, Cicero and
Intelimax covenant and agree to each use their best efforts to comply with
all applicable securities laws and to satisfy the conditions set forth in
this Agreement.
|
6.2
|
Cicero or
Intelimax covenant and agree with each other that no press releases, other
public announcements or notices concerning the transactions contemplated
by this Agreement shall be made by either party without the prior written
consent of the other party, which consent shall not be unreasonably
withheld; provided, however, that nothing herein shall prevent the parties
from supplying information or making statements as required by any
government authority or in order for the parties to satisfy their legal
obligations (prompt notice of which shall, in any such case, be given to
the parties).
|
6.3
|
Cicero and
Intelimax covenant and agree with each other that they will sign, execute
and deliver and complete any and all other documents or instruments
necessary to give full force and effect to the provisions and intent of
this agreement. Without limiting the foregoing, each of Cicero
and Intelimax shall use commercially reasonable efforts to apply for and
obtain, and cooperate in applying for and
obtaining:
|
|
(a)
|
the approval
of its shareholders required for the implementation of the Amalgmation;
and
|
|
(b)
|
such other
consents, orders or approvals may be necessary or desirable for the
implementation of the Amalgamation, including those referred to in
subsections 3.1 and 3.2.
|
7.
|
TERMINATION
AND ABANDONMENT
|
7.1
|
At any time
before the Closing, this Agreement may be terminated and the Amalgamation
abandoned by the mutual consent of Cicero and Intelimax, notwithstanding
approval of this Agreement by the holders of any shares of any class
or series of Cicero or
Intelimax.
|
7.2
|
This
Agreement shall terminate automatically if the Closing does not occur
within six (6) months of the date of this
Agreement.
|
9
8.
|
INDEMNIFICATION
|
8.1
|
Notwithstanding
any investigation by Cicero, from and after the Closing, Intelimax shall
indemnify, hold harmless, and defend Cicero and its subsidiaries,
shareholders, affiliates, officers, directors, employees, agents,
successors and permitted assigns (collectively, “Cicero’s Indemnified
Persons”) from and against, and reimburse each of Cicero’s
Indemnified Persons with respect to, any and all losses, damages,
liabilities, costs, and expenses, including interest from the date of such
loss to the time of payment, penalties, and reasonable attorney fees
(collectively, “Damages”) incurred by
any of Cicero’s Indemnified Persons by reason of or arising out of or in
connection with any breach or inaccuracy of any Amalgamated representation
or warranty of Intelimax made in this Agreement, and any failure by
Intelimax to perform any covenant required to be performed by Intelimax
pursuant to this Agreement. This indemnification extends to any Damages
suffered by any of Cicero’s Indemnified Persons, whether or not a claim is
made against any of Cicero’s Indemnified Persons by any third party.
Intelimax’s liability pursuant to this indemnification shall not exceed
the consideration Intelimax shall receive pursuant to this
Agreement.
|
8.2
|
Notwithstanding
any investigation by Intelimax, from and after the Closing, Cicero shall
indemnify, hold harmless, and defend Intelimax and its subsidiaries,
shareholders, affiliates, officers, directors, employees, agents,
successors and permitted assigns (collectively, “Intelimax’s Indemnified
Persons”) from and against, and reimburse each of Intelimax’s
Indemnified Persons with respect to, any and all Damages incurred by any
of Intelimax’s Indemnified Persons by reason of or arising out of or in
connection with any breach or inaccuracy of any representation or warranty
of Cicero made in this Agreement, and any failure by Cicero to perform any
covenant required to be performed by Cicero pursuant to this Agreement.
This indemnification extends to any Damages suffered by any of Intelimax’s
Indemnified Persons, whether or not a claim is made against any of
Intelimax’s Indemnified Persons by any third party. Cicero’s liability
pursuant to this indemnification shall not exceed the consideration Cicero
shall receive pursuant to this
Agreement.
|
9.
|
GENERAL
PROVISIONS
|
9.1
|
Waiver. The
failure of any party to comply with any obligation, covenant, agreement or
condition in this Agreement may be waived by the party entitled to the
performance of such obligation, covenant or agreement or by the party who
has the benefit of such condition, but such waiver or failure to insist on
strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
|
9.2
|
Amendment. This
Agreement may not be amended except by an instrument in writing signed by
each of the parties hereto.
|
9.3
|
Assignment.
This Agreement may not be assigned by either party without the prior
written consent of the other party
hereto.
|
9.4
|
Notices. Any
notice or communication required or permitted to be given under this
Agreement shall be given in writing and shall be considered to have been
given if delivered by hand, transmitted by facsimile transmission or
mailed by prepaid registered post in Canada or in the United States, to
the address or facsimile transmission number of each party set out
below:
|
To
Cicero:
Attention: Xxxxxxx
Xxxxxxxx
0000 Xxxx. Xxxx
Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx Xxxxxx
00000
Facsimile: 000 000
0000
To
Intelimax:
Intelimax Media
Inc.
Attention: Xxxxxxx
Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
Facsimile: 000 000
0000
or
to such other address or facsimile transmission number as either party may
designate in the manner set out above.
10
|
Any notice or
communication shall be considered to have been
received:
|
|
(a)
|
if delivered
by hand during business hours on a business day, upon receipt by a
responsible representative of the receiving party, and if not delivered
during business hours, upon the commencement of business on the next
business day;
|
|
(b)
|
if sent by
facsimile transmission during business hours on a business day, upon the
sender receiving confirmation of the transmission, and if not transmitted
during business hours, upon the commencement of business on the next
business day; and
|
|
(c)
|
if mailed by
prepaid registered post in Canada or the United States, upon the fifth
business day following posting; except that, in the case of a disruption
or an impending or threatened disruption in postal services every notice
or communication shall be delivered by hand or sent by facsimile
transmission.
|
9.5
|
Arbitration. All disputes
arising under this Agreement shall be arbitrated by a mediator agreed upon
by the parties prior to commencing any
litigation.
|
9.6
|
Currency. All
references to currency in this Agreement are to U.S. dollars unless
otherwise stated.
|
9.7
|
Time of the
Essence. Time shall be of the essence of this
Agreement.
|
9.8
|
Invalidity. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision and any such invalid or
unenforceable provision shall be deemed to be
severable.
|
9.9
|
Entire
Agreement. The provisions of
this Agreement constitute the entire agreement between the parties and
supersede all previous communications, representations and agreements,
whether oral or written, between the parties with respect to the subject
matter of this Agreement.
|
9.10
|
Enurement. This Agreement
shall enure to the benefit of and be binding upon the parties and, except
as otherwise provided or as would be inconsistent with the provisions of
this Agreement, their respective heirs, executors, administrators,
successors and assigns.
|
9.11
|
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia, Canada without regard to its
conflicts of laws provisions.
|
9.12
|
Independent Legal
Advice. Each of the parties to this Agreement confirms and
acknowledges that it has been provided with the opportunity to seek
independent legal advice with respect to its rights, entitlements,
liabilities and obligations hereunder and understands that it has been
recommended that such advice be sought prior to entering into this
Agreement.
|
9.13
|
Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. In the event that this Agreement is signed by one party and
faxed or submitted by other electronic means to another, the parties agree
that a faxed or electronic signature shall be binding upon the parties as
though the signature was an
original.
|
IN WITNESS WHEREOF each of the
Amalgamating Companies have duly executed this Agreement on the day and year
first written above.
Per:
/s/
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx,
President
INTELIMAX
MEDIA INC.
Per:
/s/
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx,
President
11
SCHEDULE
A
Amalgamation
Application
(see
attached)
12
13
14
15
SCHEDULE
B
Articles
of the Amalgamated Company
(see
attached)
16
ARTICLES
TABLE
OF CONTENTS
1. INTERPRETATION
1.1 Definitions
1.2 Business
Corporations Act and Interpretation Act Definitions Applicable
2. SHARES
AND SHARE CERTIFICATES
2.1 Authorized
Share
Structure
2.2 Form
of Share
Certificate
2.3 Shareholder
Entitled to Certificate or
Acknowledgment
2.4 Delivery
by
Mail
2.5 Replacement
of Worn Out or Defaced Certificate or Acknowledgement
2.6 Replacement
of Lost, Stolen or Destroyed Certificate or Acknowledgement
2.7 Splitting
Share Certificates
2.8 Certificate
Fee
2.9 Recognition
of
Trusts
3. ISSUE
OF
SHARES
3.1 Directors
Authorized
3.2 Commissions
and
Discounts
3.3 Brokerage
3.4 Conditions
of
Issue
3.5 Share
Purchase Warrants and
Rights
4. SHARE
REGISTERS
4.1 Central
Securities
Register
4.2 Closing
Register
5. SHARE
TRANSFERS
5.1 Registering
Transfers
5.2 Form
of Instrument of
Transfer
5.3 Transferor
Remains
Shareholder
5.4 Signing
of Instrument of
Transfer
5.5 Inquiry
as to Title Not
Required
5.6 Transfer
Fee
6. TRANSMISSION
OF
SHARES
6.1 Legal
Personal Representative Recognized on
Death
6.2 Rights
of Legal Personal
Representative
17
7. PURCHASE
OF
SHARES
7.1 Company
Authorized to Purchase
Shares
7.2 Purchase
When
Insolvent
7.3 Sale
and Voting of Purchased
Shares
9. ALTERATIONS
9.1 Alteration
of Authorized Share
Structure
9.3 Change
of
Name
9.4 Other
Alterations
10. MEETINGS
OF
SHAREHOLDERS
10.1 Annual
General
Meetings
10.2 Resolution
Instead of Annual General
Meeting
10.3 Calling
of Meetings of
Shareholders
10.4 Location
of Meetings of
Shareholders
10.5 Notice
for Meetings of
Shareholders
10.6 Notice
of Resolution to Which Shareholders May
Dissent
10.7 Record
Date for
Notice
10.8 Record
Date for
Voting
10.9 Failure
to Give Notice and Waiver of
Notice
10.10 Notice
of Special Business at Meetings of Shareholders3
11. PROCEEDINGS
AT MEETINGS OF
SHAREHOLDERS
11.1 Special
Business
11.2 Special
Majority
11.3 Quorum
11.4 One
Shareholder May Constitute
Quorum
11.5 Other
Persons May
Attend
11.6 Requirement
of
Quorum
11.7 Lack
of
Quorum
11.8 Lack
of Quorum at Succeeding
Meeting
11.9 Chair
11.10 Selection
of Alternate
Chair
11.11 Adjournments
11.12 Notice
of Adjourned
Meeting
11.13 Decisions
by Show of Hands or
Poll
11.14 Declaration
of
Result
11.15 Motion
Need Not be
Seconded
11.16 Casting
Vote
11.17 Manner
of Taking
Poll
11.18 Demand
for Poll on
Adjournment
11.19 Chair
Must Resolve
Dispute
11.20 Casting
of
Votes
11.21 Demand
for
Poll
11.22 Demand
for Poll Not to Prevent Continuance of Meeting
11.23 Retention
of Ballots and Proxies
18
12. VOTES
OF
SHAREHOLDERS
12.1 Number
of Votes by Shareholder or by
Shares
12.2 Votes
of Persons in Representative
Capacity
12.3 Votes
by Joint
Holders
12.4 Legal
Personal Representatives as Joint
Shareholders
12.5 Representative
of Corporate
Shareholder
12.6 Proxy
Provisions Do Not Apply to All
Companies
12.7 Appointment
of Proxy
Holders
12.8 Alternate
Proxy
Holders
12.9 When
Proxy Holder Need Not Be
Shareholder
12.10 Deposit
of
Proxy
12.11 Validity
of Proxy
Vote
12.12 Form
of
Proxy
12.13 Revocation
of
Proxy
12.14 Revocation
of Proxy Must Be
Signed
12.15 Production
of Evidence of Authority to
Vote
13. DIRECTORS
13.1 First
Directors; Number of
Directors
13.2 Change
in Number of
Directors
13.3 Directors'
Acts Valid Despite
Vacancy
13.4 Qualifications
of
Directors
13.5 Remuneration
of
Directors
13.6 Reimbursement
of Expenses of
Directors
13.7 Special
Remuneration for
Directors
13.8 Gratuity,
Pension or Allowance on Retirement of
Director
14. ELECTION
AND REMOVAL OF
DIRECTORS
14.1 Election
at Annual General
Meeting
14.2 Consent
to be a
Director
14.3 Failure
to Elect or Appoint
Directors
14.4 Places
of Retiring Directors Not
Filled
14.5 Directors
May Fill Casual
Vacancies
14.6 Remaining
Directors Power to
Act
14.7 Shareholders
May Fill
Vacancies
14.8 Additional
Directors
14.9 Ceasing
to be a
Director
14.10 Removal
of Director by
Shareholders
14.11 Removal
of Director by Directors
19
15. ALTERNATE
DIRECTORS
15.1 Appointment
of Alternate
Director
15.2 Notice
of
Meetings
15.3 Alternate
for More Than One Director Attending
Meetings
15.4 Consent
Resolutions
15.5 Alternate
Director Not an
Agent
15.6 Revocation
of Appointment of Alternate
Director
15.7 Ceasing
to be an Alternate
Director
15.8 Remuneration
and Expenses of Alternate
Director
16. POWERS
AND DUTIES OF
DIRECTORS
16.1 Powers
of
Management
16.2 Appointment
of Attorney of
Company
16.3 Setting
Remuneration of
Auditor
17. DISCLOSURE
OF INTEREST OF
DIRECTORS
17.1 Obligation
to Account for
Profits
17.2 Restrictions
on Voting by Reason of
Interest
17.3 Interested
Director Counted in
Quorum
17.4 Disclosure
of Conflict of Interest or
Property
17.5 Director
Holding Other Office in the
Company
17.6 No
Disqualification
17.7 Professional
Services by Director or
Officer
17.8 Director
or Officer in Other
Corporations
18. PROCEEDINGS
OF
DIRECTORS
18.1 Meetings
of
Directors
18.2 Voting
at
Meetings
18.3 Chair
of
Meetings
18.4 Meetings
by Telephone or Other Communications Medium
18.5 Calling
of
Meetings
18.6 Notice
of
Meetings
18.7 When
Notice Not
Required
18.8 Meeting
Valid Despite Failure to Give
Notice
18.9 Waiver
of Notice of
Meetings
18.10 Quorum
18.11 Validity
of Acts Where Appointment
Defective
18.12 Consent
Resolutions in
Writing
19. COMMITTEES
19.1 Appointment
and Powers of Executive
Committee
19.2 Appointment
and Powers of Other
Committees
19.3 Obligations
of
Committees
19.4 Powers
of Board
20
20. OFFICERS
20.1 Directors
May Appoint
Officers
20.2 Functions,
Duties and Powers of
Officers
20.3 Qualifications
20.4 Remuneration
and Terms of
Appointment
21. INDEMNIFICATION
21.1 Definitions
21.2 Mandatory
Indemnification of Directors and Former Directors
21.3 Indemnification
of Other
Persons
21.4 Non-Compliance
with Business Corporations
Act
21.5 Company
May Purchase
Insurance
22. DIVIDENDS
22.1 Payment
of Dividends Subject to Special
Rights
22.2 Declaration
of
Dividends
22.3 No
Notice
Required
22.4 Record
Date
22.5 Manner
of Paying
Dividend
22.6 Settlement
of
Difficulties
22.7 When
Dividend
Payable
22.8 Dividends
to be Paid in Accordance with Number of Shares
22.9 Receipt
by Joint
Shareholders
22.10 Dividend
Bears No
Interest
22.11 Fractional
Dividends
22.12 Payment
of
Dividends
22.13 Capitalization
of Retained Earnings or
Surplus
23. DOCUMENTS,
RECORDS AND
REPORTS
23.1 Recording
of Financial
Affairs
23.2 Inspection
of Accounting
Records
24. NOTICES
24.1 Method
of Giving
Notice
24.2 Deemed
Receipt
24.3 Certificate
of
Sending
24.4 Notice
to Joint
Shareholders
24.5 Notice
to
Trustees
25. SEAL
25.2 Sealing
Copies
25.3 Mechanical
Reproduction of
Seal
26. SPECIAL
RIGHTS AND RESTRICTIONS ATTACHING TO PREFERRED SHARES3
26.1 Voting
26.2 Winding
Up
21
1. INTERPRETATION
1.1 Definitions
In
these Articles, unless the context otherwise requires:
(1)
|
“board of
directors”, “directors” and “board” mean the directors or sole director of
the Company;
|
(2)
|
“Business Corporations
Act” means the Business Corporations Act
(British Columbia) from time to time in force and all amendments
thereto and includes all regulations and amendments thereto made pursuant
to that Act;
|
(3)
|
“Interpretation Act”
means the Interpretation
Act (British Columbia) from time to time in force and all
amendments thereto and includes all regulations and amendments thereto
made pursuant to that Act;
|
(4)
|
“legal
personal representative” means the personal or other legal representative
of the shareholder;
|
(5)
|
“registered
address” of a shareholder means the shareholder’s address as recorded in
the central securities register;
|
(6)
|
“seal” means
the seal of the Company, if any.
|
1.2 Business Corporations Act and
Interpretation Act
Definitions Applicable
The definitions in
the Business Corporations Act
and the definitions and rules of construction in the Interpretation Act, with the
necessary changes, so far as applicable, and unless the context requires
otherwise, apply to these Articles as if they were an enactment. If there is a
conflict between a definition in the Business Corporations Act and
a definition or rule in the Interpretation Act relating to a term used
in these Articles, the definition in the Business Corporations Act
will prevail in relation to the use of the term in these Articles. If
there is a conflict between these Articles and the Business Corporations Act,
the Business
Corporations Act will prevail.
2. SHARES
AND SHARE CERTIFICATES
2.1 Authorized
Share Structure
The authorized
share structure of the Company consists of shares of the class or classes and
series, if any, described in the Notice of Articles of the Company.
2.2 Form
of Share Certificate
Each share
certificate issued by the Company must comply with, and be signed as required
by, the Business Corporations
Act.
22
2.3 Shareholder
Entitled to Certificate or Acknowledgment
Each shareholder is
entitled, without charge, to (a) one share certificate representing the shares
of each class or series of shares registered in the shareholder’s name, or (b) a
non-transferable written acknowledgment of the shareholder’s right to obtain
such a share certificate, provided that in respect of a share held jointly by
several persons, the Company is not bound to issue more than one share
certificate and delivery of a share certificate for a share to one of several
joint shareholders or to one of the shareholders’ duly authorized agents will be
sufficient delivery to all.
2.4 Delivery
by Mail
Any share
certificate or non-transferable written acknowledgment of a shareholder’s right
to obtain a share certificate may be sent to the shareholder by mail at the
shareholder’s registered address and neither the Company nor any director,
officer or agent of the Company is liable for any loss to the shareholder
because the share certificate or acknowledgement is lost in the mail or
stolen.
2.5 Replacement
of Worn Out or Defaced Certificate or Acknowledgement
If
the directors are satisfied that a share certificate or a non-transferable
written acknowledgment of a shareholder’s right to obtain a share certificate is
worn out or defaced, they must, on production to them of the share certificate
or acknowledgment, as the case may be, and on such other terms, if any, as they
think fit:
(1)
|
order the
share certificate or acknowledgment, as the case may be, to be cancelled;
and
|
(2)
|
issue a
replacement share certificate or acknowledgment, as the case may
be.
|
2.6 Replacement
of Lost, Stolen or Destroyed Certificate or Acknowledgement
If
a share certificate or a non-transferable written acknowledgement of a
shareholder’s right to obtain a share certificate is lost, stolen or destroyed,
a replacement share certificate or acknowledgement, as the case may be, must be
issued to the person entitled to that share certificate or acknowledgement, as
the case may be, if the directors receive:
(1)
|
proof
satisfactory to them that the share certificate or acknowledgement is
lost, stolen or destroyed; and
|
(2)
|
any indemnity
the directors consider adequate.
|
2.7 Splitting
Share Certificates
If
a shareholder surrenders a share certificate to the Company with a written
request that the Company issue in the shareholder’s name two or more share
certificates, each representing a specified number of shares and in the
aggregate representing the same number of shares as the share certificate so
surrendered, the Company must cancel the surrendered share certificate and issue
replacement share certificates in accordance with that request.
23
2.8 Certificate
Fee
There must be paid
to the Company, in relation to the issue of any share certificate under Articles
2.5, 2.6 or 2.7, the amount, if any and which must not exceed the amount
prescribed under the Business
Corporations Act, determined by the directors.
2.9 Recognition
of Trusts
Except as required
by law or statute or these Articles, no person will be recognized by the Company
as holding any share upon any trust, and the Company is not bound by or
compelled in any way to recognize (even when having notice thereof) any
equitable, contingent, future or partial interest in any share or fraction of a
share or (except as by law or statute or these Articles provided or as ordered
by a court of competent jurisdiction) any other rights in respect of any share
except an absolute right to the entirety thereof in the
shareholder.
3. ISSUE
OF SHARES
3.1 Directors
Authorized
Subject to the
Business Corporations Act
and the rights of the holders of issued shares of the Company, the
Company may issue, allot, sell or otherwise dispose of the unissued shares, and
issued shares held by the Company, at the times, to the persons, including
directors, in the manner, on the terms and conditions and for the issue prices
(including any premium at which shares with par value may be issued) that the
directors may determine. The issue price for a share with par value must be
equal to or greater than the par value of the share.
3.2 Commissions
and Discounts
The Company may at
any time, pay a reasonable commission or allow a reasonable discount to any
person in consideration of that person purchasing or agreeing to purchase shares
of the Company from the Company or any other person or procuring or agreeing to
procure purchasers for shares of the Company.
3.3 Brokerage
The Company may pay
such brokerage fee or other consideration as may be lawful for or in connection
with the sale or placement of its securities.
3.4 Conditions
of Issue
Except as provided
for by the Business
Corporations Act, no share may be issued until it is fully paid. A share
is fully paid when:
(1)
|
consideration
is provided to the Company for the issue of the share by one or more of
the following:
|
|
(a)
|
past services
performed for the Company;
|
|
(b)
|
property;
|
|
(c)
|
money;
and
|
(2)
|
the value of
the consideration received by the Company equals or exceeds the issue
price set for the share under Article
3.1.
|
24
3.5 Share
Purchase Warrants and Rights
Subject to the
Business Corporations Act,
the Company may issue share purchase warrants, options and rights upon
such terms and conditions as the directors determine, which share purchase
warrants, options and rights may be issued alone or in conjunction with
debentures, debenture stock, bonds, shares or any other securities issued or
created by the Company from time to time.
4. SHARE
REGISTERS
4.1 Central
Securities Register
As
required by and subject to the Business Corporations Act,
the Company must maintain in British Columbia a central securities
register. The directors may, subject to the Business Corporations Act,
appoint an agent to maintain the central securities register. The
directors may also appoint one or more agents, including the agent which keeps
the central securities register, as transfer agent for its shares or any class
or series of its shares, as the case may be, and the same or another agent as
registrar for its shares or such class or series of its shares, as the case may
be. The directors may terminate such appointment of any agent at any time and
may appoint another agent in its place.
4.2 Closing
Register
The Company must
not at any time close its central securities register.
5. SHARE
TRANSFERS
5.1 Registering
Transfers
Subject to the
Business Corporations Act,
a transfer of a share of the Company must not be registered unless the
Company or the transfer agent or registrar for the class or series of share to
be transferred has received:
(1)
|
a duly signed
instrument of transfer in respect of the share, made by the shareholder or
other appropriate person or by an agent who has actual authority to act on
behalf of that person;
|
(2)
|
if a share
certificate has been issued by the Company in respect of the share to be
transferred, that share
certificate;
|
(3)
|
if a
non-transferable written acknowledgement of the shareholder’s right to
obtain a share certificate has been issued by the Company in respect of
the share to be transferred, that acknowledgement;
and
|
(4)
|
such other
evidence, if any, as the Company or the transfer agent or registrar for
the class or series of share to be transferred may require to prove the
title of the transferor or the transferor’s right to transfer the share,
the due signing of the instrument of transfer and the rights of the
transferee to have the transfer
registered.
|
5.2 Form
of Instrument of Transfer
The instrument of
transfer in respect of any share of the Company must be either in the form, if
any, on the back of the Company's share certificates or in any other form that
may be approved by the directors from time to time.
25
5.3 Transferor
Remains Shareholder
Except to the
extent that the Business
Corporations Act otherwise provides, the transferor of shares is deemed
to remain the holder of the shares until the name of the transferee is entered
in a securities register of the Company in respect of the transfer.
5.4 Signing
of Instrument of Transfer
If
a shareholder, or his or her duly authorized attorney, signs an instrument of
transfer in respect of shares registered in the name of the shareholder, the
signed instrument of transfer constitutes a complete and sufficient authority to
the Company and its directors, officers and agents to register the number of
shares specified in the instrument of transfer or specified in any other manner,
or, if no number is specified, all the shares represented by the share
certificates or set out in the written acknowledgments deposited with the
instrument of transfer:
(1)
|
in the name
of the person named as transferee in that instrument of transfer;
or
|
(2)
|
if no person
is named as transferee in that instrument of transfer, in the name of the
person on whose behalf the instrument is deposited for the purpose of
having the transfer registered.
|
5.5 Inquiry
as to Title Not Required
Neither the Company
nor any director, officer or agent of the Company is bound to inquire into the
title of the person named in the instrument of transfer as transferee or, if no
person is named as transferee in the instrument of transfer, of the person on
whose behalf the instrument is deposited for the purpose of having the transfer
registered or is liable for any claim related to registering the transfer by the
shareholder or by any intermediate owner or holder of the shares, of any
interest in the shares, of any share certificate representing such shares or of
any written acknowledgment of a right to obtain a share certificate for such
shares.
5.6 Transfer
Fee
There must be paid
to the Company, in relation to the registration of any transfer, the amount, if
any, determined by the directors.
6. TRANSMISSION
OF SHARES
6.1 Legal
Personal Representative Recognized on Death
In
case of the death of a shareholder, the legal personal representative of the
shareholder, or if the shareholder was a joint holder, the surviving joint
holder, will be the only person recognized by the Company as having any title to
the shareholder’s interest in the shares. Before recognizing a person as a legal
personal representative of a shareholder, the directors may require proof of
appointment by a court of competent jurisdiction, a grant of letters probate,
letters of administration or such other evidence or documents as the directors
consider appropriate.
6.2 Rights
of Legal Personal Representative
The legal personal
representative of a shareholder has the same rights, privileges and obligations
that attach to the shares held by the shareholder, including the right to
transfer the shares in accordance with these Articles, provided the documents
required by the Business
Corporations Act and the directors have been deposited with the Company.
This Article 6.2 does not apply in the case of the death of a shareholder with
respect to shares registered in the shareholder’s name and the name of another
person in joint tenancy.
26
7. PURCHASE
OF SHARES
7.1 Company
Authorized to Purchase Shares
Subject to Article
7.2, the special rights and restrictions attached to the shares of any class or
series, the Business
Corporations Act, and securities laws and regulations of general
application, the Company may, if authorized by the directors, purchase or
otherwise acquire any of its shares at the price and upon the terms specified in
such resolution.
7.2 Purchase
When Insolvent
The Company must
not make a payment or provide any other consideration to purchase or otherwise
acquire any of its shares if there are reasonable grounds for believing
that:
(1)
|
the Company
is insolvent; or
|
(2)
|
making the
payment or providing the consideration would render the Company
insolvent.
|
7.3 Sale
and Voting of Purchased Shares
If
the Company retains a share redeemed, purchased or otherwise acquired by it, the
Company may sell, gift or otherwise dispose of the share, but, while such share
is held by the Company, it:
(1)
|
is not
entitled to vote the share at a meeting of its
shareholders;
|
(2)
|
must not pay
a dividend in respect of the share;
and
|
(3)
|
must not make
any other distribution in respect of the
share.
|
8.
BORROWING
POWERS
8.1 Powers
of Directors
The Company, if
authorized by the directors, may:
(1)
|
borrow money
in the manner and amount, on the security, from the sources and on the
terms and conditions that it considers
appropriate;
|
(2)
|
issue bonds,
debentures and other debt obligations either outright or as security for
any liability or obligation of the Company or any other person and at such
discounts or premiums and on such other terms as it considers
appropriate;
|
(3)
|
guarantee the
repayment of money by any other person or the performance of any
obligation of any other person; and
|
(4)
|
mortgage,
charge, whether by way of specific or floating charge, grant a security
interest in, or give other security on, the whole or any part of the
present and future assets and undertaking of the
Company.
|
27
9.
ALTERATIONS
9.1
Alteration
of Authorized Share Structure
Subject to Article
9.2 and the Business
Corporations Act, the Company may by ordinary resolution:
(1)
|
create one or
more classes or series of shares or, if none of the shares of a class or
series of shares are allotted or issued, eliminate that class or series of
shares;
|
(2)
|
increase,
reduce or eliminate the maximum number of shares that the Company is
authorized to issue out of any class or series of shares or establish a
maximum number of shares that the Company is authorized to issue out of
any class or series of shares for which no maximum is
established;
|
(3)
|
if the
Company is authorized to issue shares of a class of share with par
value:
|
|
(a)
|
decrease the
par value of those shares; or
|
|
(b)
|
if none of
the shares of that class of shares are allotted or issued, increase the
par value of those shares;
|
(4)
|
subdivide or
consolidate all or any of its unissued, or full paid issued,
shares;
|
(5)
|
change all or
any of its unissued, or fully paid issued, shares with par value into
shares without par value or any of its unissued shares without par value
into shares with par value;
|
(6)
|
alter the
identifying name of any of its shares;
or
|
(7)
|
otherwise
alter its shares or authorized share structure when required or permitted
to do so by the Business
Corporations Act.
|
9.2
Special
Rights and Restrictions
Subject to the
Business Corporations Act,
the Company may by ordinary resolution:
(1)
|
create
special rights or restrictions for, and attach those special rights or
restrictions to, the shares of any class or series of shares, whether or
not any or all of those shares have been issued;
or
|
(2)
|
vary or
delete any special rights or restrictions attached to the shares of any
class or series of shares, whether or not any or all of those shares have
been issued;
|
|
and alter its
Notice of Articles accordingly.
|
28
9.3 Change
of Name
The Company may by
ordinary resolution authorize an alteration of its Notice of Articles in order
to change its name.
9.4 Other
Alterations
If
the Business Corporations Act
does not specify the type of resolution and these Articles do not specify
another type of resolution, the Company may by ordinary resolution alter these
Articles.
10. MEETINGS
OF SHAREHOLDERS
10.1 Annual
General Meetings
Unless an annual
general meeting is deferred or waived in accordance with the Business Corporations Act,
the Company must hold its first annual general meeting within 18 months
after the date on which it was incorporated or otherwise recognized, and after
that must hold an annual general meeting at least once in each calendar year and
not more than 15 months after the last annual reference date at such time and
place as may be determined by the directors.
10.2 Resolution
Instead of Annual General Meeting
If
all the shareholders who are entitled to vote at an annual general meeting
consent by a unanimous resolution under the Business Corporations Act to
all of the business that is required to be transacted at that annual general
meeting, the annual general meeting is deemed to have been held on the date of
the unanimous resolution. The shareholders must, in any unanimous resolution
passed under this Article 10.2, select as the Company’s annual reference date a
date that would be appropriate for the holding of the applicable annual general
meeting.
10.3 Calling
of Meetings of Shareholders
The directors may,
whenever they think fit, call a meeting of shareholders.
10.4 Location
of Meetings of Shareholders
General meetings of
the Company may be held outside of British Columbia at a location to be approved
by resolution of the directors.
10.5 Notice
for Meetings of Shareholders
The Company must
send notice of the date, time and location of any meeting of shareholders
(including, without limitation, any notice specifying the intention to propose a
resolution as an exceptional resolution, a special resolution or a separate
special resolution, and any notice to consider approving an amalgamation into a
foreign jurisdiction, an arrangement or the adoption of an amalgamation
agreement, and any notice of a general meeting, class meeting or series meeting)
in the manner provided in these Articles, or in such other manner, if any, as
may be prescribed by ordinary resolution (whether previous notice of the
resolution has been given or not), to each shareholder entitled to attend the
meeting, to each director and to the auditor of the Company, unless these
Articles otherwise provide, at least the following number of days before the
meeting:
(1)
|
if and for so
long as the Company is a public company, 21
days;
|
(2)
|
otherwise, 10
days.
|
29
10.6 Notice
of Resolution to Which Shareholders May Dissent
The Company must
send to each of its shareholders, whether or not their shares carry the right to
vote, a notice of any meeting of shareholders at which a resolution entitling
shareholders to dissent is to be considered specifying the date of the meeting
and containing a statement advising of the right to send a notice of dissent
together with a copy of the proposed resolution at least the following number of
days before the meeting:
(1)
|
if and for so
long as the Company is a public company, 21
days;
|
(2)
|
otherwise, 10
days.
|
10.7
Record
Date for Notice
The directors may
set a date as the record date for the purpose of determining shareholders
entitled to notice of any meeting of shareholders. The record date must not
precede the date on which the meeting is to be held by more than two months or,
in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by
more than four months. The record date must not precede the date on which the
meeting is held by fewer than:
(1)
|
if and for so
long as the Company is a public company, 21
days;
|
(2)
|
otherwise, 10
days.
|
If
no record date is set, the record date is 5 p.m. on the day immediately
preceding the first date on which the notice is sent or, if no notice is sent,
the beginning of the meeting.
10.8 Record
Date for Voting
The directors may
set a date as the record date for the purpose of determining shareholders
entitled to vote at any meeting of shareholders. The record date must not
precede the date on which the meeting is to be held by more than two months or,
in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by
more than four months. If no record date is set, the record date is 5 p.m. on
the day immediately preceding the first date on which the notice is sent or, if
no notice is sent, the beginning of the meeting.
10.9 Failure
to Give Notice and Waiver of Notice
The accidental
omission to send notice of any meeting to, or the non-receipt of any notice by,
any of the persons entitled to notice does not invalidate any proceedings at
that meeting. Any person entitled to notice of a meeting of shareholders may, in
writing or otherwise, waive or reduce the period of notice of such meeting.
Attendance of a person at a meeting of shareholders is a waiver of entitlement
to notice of the meeting unless that person attends the meeting for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called.
30
10.10 Notice
of Special Business at Meetings of Shareholders
If
a meeting of shareholders is to consider special business within the meaning of
Article 11.1, the notice of meeting must:
(1)
|
state the
general nature of the special business;
and
|
(2)
|
if the
special business includes considering, approving, ratifying, adopting or
authorizing any document or the signing of or giving of effect to any
document, have attached to it a copy of the document or state that a copy
of the document will be available for inspection by
shareholders:
|
|
(a)
|
at the
Company's records office, or at such other reasonably accessible location
in British Columbia as is specified in the notice;
and
|
|
(b)
|
during
statutory business hours on any one or more specified days before the day
set for the holding of the meeting.
|
11. PROCEEDINGS
AT MEETINGS OF SHAREHOLDERS
11.1 Special
Business
At
a meeting of shareholders, the following business is special
business:
(1)
|
at a meeting
of shareholders that is not an annual general meeting, all business is
special business except business relating to the conduct of or voting at
the meeting;
|
(2)
|
at an annual
general meeting, all business is special business except for the
following:
|
|
(a)
|
business
relating to the conduct of or voting at the
meeting;
|
|
(b)
|
consideration
of any financial statements of the Company presented to the
meeting;
|
|
(c)
|
consideration
of any reports of the directors or
auditor;
|
|
(d)
|
the setting
or changing of the number of
directors;
|
|
(e)
|
the election
or appointment of directors;
|
|
(f)
|
the
appointment of an auditor;
|
|
(g)
|
the setting
of the remuneration of an auditor;
|
|
(h)
|
business
arising out of a report of the directors not requiring the passing of a
special resolution or an exceptional
resolution;
|
|
(i)
|
any other
business which, under these Articles or the Business Corporations Act,
may be transacted at a meeting of shareholders without prior notice
of the business being given to the
shareholders.
|
31
11.2 Special
Majority
The majority of
votes required for the Company to pass a special resolution at a meeting of
shareholders is 2/3 of the votes cast on the resolution.
11.3 Quorum
Subject to the
special rights and restrictions attached to the shares of any class or series of
shares, the quorum for the transaction of business at a meeting of shareholders
is one shareholder present in person (or, being a corporation, partnership,
trust or other non-individual legal entity represented in accordance with the
provisions of the Business
Corporations Act), or by proxy holding not less than one voting share of
the Company entitled to be voted at the meeting.
11.4 One
Shareholder May Constitute Quorum
If
there is only one shareholder entitled to vote at a meeting of
shareholders:
(1)
|
the quorum is
one person who is, or who represents by proxy, that shareholder,
and
|
(2)
|
that
shareholder, present in person or by proxy, may constitute the
meeting.
|
11.5 Other
Persons May Attend
In
addition to those persons who are entitled to vote at a meeting of shareholders,
the only other persons entitled to be present at the meeting are the directors,
the president (if any), the secretary (if any), the assistant secretary (if
any), any lawyer for the Company, the auditor of the Company, any persons
invited to be present at the meeting by the directors or by the chair of the
meeting and any person entitled or required under the Business Corporations Act or
these Articles to be present at the meeting; but if any of those persons does
attend the meeting, that person is not to be counted in the quorum and is not
entitled to vote at the meeting unless that person is a shareholder or proxy
holder entitled to vote at the meeting.
11.6 Requirement
of Quorum
No
business, other than the election of a chair of the meeting and the adjournment
of the meeting, may be transacted at any meeting of shareholders unless a quorum
of shareholders entitled to vote is present at the commencement of the meeting,
but such quorum need not be present throughout the meeting.
11.7 Lack
of Quorum
If, within one-half
hour from the time set for the holding of a meeting of shareholders, a quorum is
not present:
(1)
|
in the case
of a general meeting requisitioned by shareholders, the meeting is
dissolved, and
|
(2)
|
in the case
of any other meeting of shareholders, the meeting stands adjourned to the
same day in the next week at the same time and
place.
|
32
11.8 Lack
of Quorum at Succeeding Meeting
If, at the meeting
to which the meeting referred to in Article 11.7(2) was adjourned, a quorum is
not present within one-half hour from the time set for the holding of the
meeting, the person or persons present and being, or representing by proxy, one
or more shareholders entitled to attend and vote at the meeting constitute a
quorum.
11.9 Chair
The following
individual is entitled to preside as chair at a meeting of
shareholders:
(1)
|
the chair of
the board, if any; or
|
(2)
|
if the chair
of the board is absent or unwilling to act as chair of the meeting, the
president, if any.
|
11.10 Selection
of Alternate Chair
If, at any meeting
of shareholders, there is no chair of the board or president present within 15
minutes after the time set for holding the meeting, or if the chair of the board
and the president are unwilling to act as chair of the meeting, or if the chair
of the board and the president have advised the secretary, if any, or any
director present at the meeting, that they will not be present at the meeting,
the directors present must choose one of their number to be chair of the meeting
or if all of the directors present decline to take the chair or fail to so
choose or if no director is present, the shareholders entitled to vote at the
meeting who are present in person or by proxy may choose any person present at
the meeting to chair the meeting.
11.11 Adjournments
The chair of a
meeting of shareholders may, and if so directed by the meeting must, adjourn the
meeting from time to time and from place to place, but no business may be
transacted at any adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place.
11.12 Notice
of Adjourned Meeting
It
is not necessary to give any notice of an adjourned meeting or of the business
to be transacted at an adjourned meeting of shareholders except that, when a
meeting is adjourned for 30 days or more, notice of the adjourned meeting must
be given as in the case of the original meeting.
33
11.13 Decisions
by Show of Hands or Poll
Subject to the
Business Corporations Act,
every motion put to a vote at a meeting of shareholders will be decided
on a show of hands unless a poll, before or on the declaration of the result of
the vote by show of hands, is directed by the chair or demanded by at least one
shareholder entitled to vote who is present in person or by proxy.
11.14 Declaration
of Result
The chair of a
meeting of shareholders must declare to the meeting the decision on every
question in accordance with the result of the show of hands or the poll, as the
case may be, and that decision must be entered in the minutes of the meeting. A
declaration of the chair that a resolution is carried by the necessary majority
or is defeated is, unless a poll is directed by the chair or demanded under
Article 11.13, conclusive evidence without proof of the number or proportion of
the votes recorded in favour of or against the resolution.
11.15 Motion
Need Not be Seconded
No
motion proposed at a meeting of shareholders need be seconded unless the chair
of the meeting rules otherwise, and the chair of any meeting of shareholders is
entitled to propose or second a motion.
11.16 Casting
Vote
In
case of an equality of votes, the chair of a meeting of shareholders does not,
either on a show of hands or on a poll, have a second or casting vote in
addition to the vote or votes to which the chair may be entitled as a
shareholder.
11.17 Manner
of Taking Poll
Subject to Article
11.18, if a poll is duly demanded at a meeting of shareholders:
(1)
|
the poll must
be taken:
|
|
(a)
|
at the
meeting, or within seven days after the date of the meeting, as the chair
of the meeting directs; and
|
|
(b)
|
in the
manner, at the time and at the place that the chair of the meeting
directs;
|
(2)
|
the result of
the poll is deemed to be the decision of the meeting at which the poll is
demanded; and
|
(3)
|
the demand
for the poll may be withdrawn by the person who demanded
it.
|
34
11.18
Demand for Poll on Adjournment
A
poll demanded at a meeting of shareholders on a question of adjournment must be
taken immediately at the meeting.
11.19 Chair
Must Resolve Dispute
In
the case of any dispute as to the admission or rejection of a vote given on a
poll, the chair of the meeting must determine the dispute, and his or her
determination made in good faith is final and conclusive.
11.20 Casting
of Votes
On
a poll, a shareholder entitled to more than one vote need not cast all the votes
in the same way.
11.21 Demand
for Poll
No
poll may be demanded in respect of the vote by which a chair of a meeting of
shareholders is elected.
11.22 Demand
for Poll Not to Prevent Continuance of Meeting
The demand for a
poll at a meeting of shareholders does not, unless the chair of the meeting so
rules, prevent the continuation of a meeting for the transaction of any business
other than the question on which a poll has been demanded.
11.23 Retention
of Ballots and Proxies
The Company must,
for at least three months after a meeting of shareholders, keep each ballot cast
on a poll and each proxy voted at the meeting, and, during that period, make
them available for inspection during normal business hours by any shareholder or
proxyholder entitled to vote at the meeting. At the end of such three month
period, the Company may destroy such ballots and proxies.
12. VOTES
OF SHAREHOLDERS
12.1 Number
of Votes by Shareholder or by Shares
Subject to any
special rights or restrictions attached to any shares and to the restrictions
imposed on joint shareholders under Article 12.3:
(1)
|
on a vote by
show of hands, every person present who is a shareholder or proxy holder
and entitled to vote on the matter has one vote;
and
|
(2)
|
on a poll,
every shareholder entitled to vote on the matter has one vote in respect
of each share entitled to be voted on the matter and held by that
shareholder and may exercise that vote either in person or by
proxy.
|
35
12.2 Votes
of Persons in Representative Capacity
A
person who is not a shareholder may vote at a meeting of shareholders, whether
on a show of hands or on a poll, and may appoint a proxy holder to act at the
meeting, if, before doing so, the person satisfies the chair of the meeting, or
the directors, that the person is a legal personal representative or a trustee
in bankruptcy for a shareholder who is entitled to vote at the
meeting.
12.3 Votes
by Joint Holders
If
there are joint shareholders in respect of any share:
(1)
|
any one of
the joint shareholders may vote at any meeting, either personally or by
proxy, in respect of the shares as if that joint shareholder were solely
entitled to it; or
|
(2)
|
if more than
one of the joint shareholders is present at any meeting, personally or by
proxy and more than one of them votes in respect of that share, then only
the vote of the joint shareholder present whose name stands first on the
central securities register in respect of the share will be
counted.
|
12.4 Legal
Personal Representatives as Joint Shareholders
Two or more legal
personal representatives of a shareholder in whose sole name any share is
registered are, for the purposes of Article 12.3, deemed to be joint
shareholders.
12.5 Representative
of Corporate Shareholder
If
a corporation, that is not a subsidiary of the Company, is a shareholder, that
corporation may appoint a person to act as its representative at any meeting of
shareholders of the Company, and:
(1)
|
for that
purpose, the instrument appointing a representative
must:
|
|
(a)
|
be received
at the registered office of the Company or at any other place specified,
in the notice calling the meeting, for the receipt of proxies, at least
the number of business days specified in the notice for the receipt of
proxies, or if no number of days is specified, two business days before
the day set for the holding of the meeting;
or
|
|
(b)
|
be provided,
at the meeting, to the chair of the meeting or to a person designated by
the chair of the meeting;
|
(2)
|
if a
representative is appointed under this Article
12.5:
|
|
(a)
|
the
representative is entitled to exercise in respect of and at that meeting
the same rights on behalf of the corporation that the representative
represents as that corporation could exercise if it were a shareholder who
is an individual, including, without limitation, the right to appoint a
proxy holder; and
|
|
(b)
|
the
representative, if present at the meeting, is to be counted for the
purpose of forming a quorum and is deemed to be a shareholder present in
person at the meeting.
|
Evidence of the
appointment of any such representative may be sent to the Company by written
instrument, fax or any other method of transmitting legibly recorded
messages.
36
12.6 Proxy
Provisions Do Not Apply to All Companies
If
and for so long as the Company is a public company or a pre-existing reporting
company which has the Statutory Reporting Company Provisions as part of its
Articles or to which the Statutory Reporting Company Provisions apply, Articles
12.7 to 12.15 apply only insofar as they are not inconsistent with any
securities legislation in any province or territory of Canada or in the federal
jurisdiction of the United States or in any states of the United States that is
applicable to the Company and insofar as they are not inconsistent with
regulations made and the rules promulgated under that legislation and all
administrative policy statements, blanket order and rulings, notice and other
administrative directions issued by securities commissions or similar
authorities appointed under that legislation.
12.7 Appointment
of Proxy Holders
Every shareholder
of the Company, including a corporation that is a shareholder but not a
subsidiary of the Company, entitled to vote at a meeting of shareholders of the
Company may, by proxy, appoint one or more (but not more than five) proxy
holders to attend and act at the meeting in the manner, to the extent and with
the powers conferred by the proxy.
12.8 Alternate
Proxy Holders
A
shareholder may appoint one or more alternate proxy holders to act in the place
of an absent proxy holder.
12.9 When
Proxy Holder Need Not Be Shareholder
A
person must not be appointed as a proxy holder unless the person is a
shareholder, although a person who is not a shareholder may be appointed as a
proxy holder if.
(1)
|
the person
appointing the proxy holder is a corporation or a representative of a
corporation appointed under Article
12.5;
|
(2)
|
the Company
has at the time of the meeting for which the proxy holder is to be
appointed only one shareholder entitled to vote at the meeting;
or
|
(3)
|
the
shareholders present in person or by proxy at and entitled to vote at the
meeting for which the proxy holder is to be appointed, by a resolution on
which the proxy holder is not entitled to vote but in respect of which the
proxy holder is to be counted in the quorum, permit the proxy holder to
attend and vote at the meeting.
|
12.10 Deposit
of Proxy
A
proxy for a meeting of shareholders must:
(1)
|
be received
at the registered office of the Company or at any other place specified,
in the notice calling the meeting, for the receipt of proxies, at least
the number of business days specified in the notice, or if no number of
days is specified, two business days before the day set for the holding of
the meeting; or
|
(2)
|
unless the
notice provides otherwise, be provided, at the meeting, to the chair of
the meeting or to a person designated by the chair of the
meeting.
|
A
proxy may be sent to the Company by written instrument, fax or any other method
of transmitting legibly recorded messages.
37
12.11 Validity
of Proxy Vote
A
vote given in accordance with the terms of a proxy is valid notwithstanding the
death or incapacity of the shareholder giving the proxy and despite the
revocation of the proxy or the revocation of the authority under which the proxy
is given, unless notice in writing of that death, incapacity or revocation is
received:
(1)
|
at the
registered office of the Company, at any time up to and including the last
business day before the day set for the holding of the meeting at which
the proxy is to be used; or
|
(2)
|
at the
meeting or any adjourned meeting by the chair of the meeting or adjourned
meeting, before any vote in respect of which the proxy has been given has
been taken.
|
12.12 Form
of Proxy
A
proxy, whether for a specified meeting or otherwise, must be either in the
following form or in any other form approved by the directors or the chair of
the meeting:
United Media
Partners Inc.
(the "Company")
The undersigned,
being a shareholder of the Company, hereby appoints [name], or failing that
person, [name], as proxy holder for the undersigned to attend, act and vote for
and on behalf of the undersigned at the meeting of shareholders of the Company
to be held on [month, day, year] and at any adjournment of that
meeting.
Number of shares in
respect of which this proxy is given (if no number is specified, then this proxy
if given in respect of all shares registered in the name of the
shareholder):
Signed
[month, day, year]
|
[Signature of
shareholder]
|
[Name of
shareholder]
|
12.13 Revocation
of Proxy
Subject to Article
12.14, every proxy maybe revoked by an instrument in writing that is
received:
(1)
|
at the
registered office of the Company at any time up to and including the last
business day before the day set for the holding of the meeting or any
adjourned meeting at which the proxy is to be used;
or
|
(2)
|
at the
meeting or any adjourned meeting by the chair of the meeting or adjourned
meeting, before any vote in respect of which the proxy has been given has
been taken.
|
38
12.14 Revocation
of Proxy Must Be Signed
An
instrument referred to in Article 12.13 must be signed as follows:
(1)
|
if the
shareholder for whom the proxy holder is appointed is an individual, the
instrument must be signed by the shareholder or his or her legal personal
representative or trustee in
bankruptcy;
|
(2)
|
if the
shareholder for whom the proxy holder is appointed is a corporation, the
instrument must be signed by the corporation or by a representative
appointed for the corporation under Article
12.5.
|
12.15 Production
of Evidence of Authority to Vote
The chair of any
meeting of shareholders may, but need not, inquire into the authority of any
person to vote at the meeting and may, but need not, demand from that person
production of evidence as to the existence of the authority to
vote.
13. DIRECTORS
13.1 First
Directors; Number of Directors
The first directors
are the persons designated as directors of the Company in the Notice of Articles
that applies to the Company when it is recognized under the Business Corporations Act.
The number of directors, excluding additional directors appointed under Article
14.8, is set at:
(1)
|
subject to
paragraphs (2) and (3), the number of directors that is equal to the
number of the Company’s first
directors;
|
(2)
|
if the
Company is a public company, the greater of three and the most recently
set of:
|
|
(a)
|
the number of
directors set by ordinary resolution (whether or not previous notice of
the resolution was given); and
|
|
(b)
|
the number of
directors set under Article 14.4;
|
(3)
|
if the
Company is not a public company, the most recently set
of:
|
|
(a)
|
the number of
directors set by ordinary resolution (whether or not previous notice of
the resolution was given); and
|
|
(b)
|
the number of
directors set under Article 14.4.
|
13.2 Change
in Number of Directors
If
the number of directors is set under Articles 13.1(2)(a) or
13.1(3)(a):
(1)
|
the
shareholders may elect or appoint the directors needed to fill any
vacancies in the board of directors up to that
number;
|
(2)
|
if the
shareholders do not elect or appoint the directors needed to fill any
vacancies in the board of directors up to that number contemporaneously
with the setting of that number, then the directors, subject to Article
14.8, may appoint, or the shareholders may elect or appoint, directors to
fill those vacancies.
|
39
13.3 Directors'
Acts Valid Despite Vacancy
An
act or proceeding of the directors is not invalid merely because fewer than the
number of directors set or otherwise required under these Articles is in
office.
13.4 Qualifications
of Directors
A
director is not required to hold a share in the capital of the Company as
qualification for his or her office but must be qualified as required by the
Business Corporations Act
to become, act or continue to act as a director.
13.5 Remuneration
of Directors
The directors are
entitled to the remuneration for acting as directors, if any, as the directors
may from time to time determine. If the directors so decide, the remuneration of
the directors, if any, will be determined by the shareholders. That 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.
13.6 Reimbursement
of Expenses of Directors
The Company must
reimburse each director for the reasonable expenses that he or she may incur in
and about the business of the Company.
13.7 Special
Remuneration for Directors
If
any director performs any professional or other services for the Company that in
the opinion of the directors are outside the ordinary duties of a director, or
if any director is otherwise specially occupied in or about the Company's
business, he or she may be paid remuneration fixed by the directors, or, at the
option of that director, fixed by ordinary resolution, and such remuneration may
be either in addition to, or in substitution for, any other remuneration that he
or she may be entitled to receive.
13.8 Gratuity,
Pension or Allowance on Retirement of Director
Unless otherwise
determined by ordinary resolution, the directors on behalf of the Company may
pay a gratuity or pension or allowance on retirement to any director who has
held any salaried office or place of profit with the Company or to his or her
spouse or dependants and may make contributions to any fund and pay premiums for
the purchase or provision of any such gratuity, pension or
allowance.
40
14. ELECTION
AND REMOVAL OF DIRECTORS
14.1 Election
at Annual General Meeting
At
every annual general meeting and in every unanimous resolution contemplated by
Article 10.2:
(1)
|
the
shareholders entitled to vote at the annual general meeting for the
election of directors must elect, or in the unanimous resolution appoint,
a board of directors consisting of the number of directors for the time
being set under these Articles; and
|
(2)
|
unless
otherwise determined by resolution of the board of directors, all the
directors cease to hold office immediately before the election or
appointment of directors under paragraph (1), but are eligible for
re-election or re-appointment.
|
14.2 Consent
to be a Director
No
election, appointment or designation of an individual as a director is valid
unless:
(1)
|
that
individual consents to be a director in the manner provided for in the
Business Corporations
Act;
|
(2)
|
that
individual is elected or appointed at a meeting at which the individual is
present and the individual does not refuse, at the meeting, to be a
director; or
|
(3)
|
with respect
to first directors, the designation is otherwise valid under the Business Corporations
Act.
|
14.3 Failure
to Elect or Appoint Directors
|
If:
|
(1)
|
the Company
fails to hold an annual general meeting, and all the shareholders who are
entitled to vote at an annual general meeting fail to pass the unanimous
resolution contemplated by Article 10.2, on or before the date by which
the annual general meeting is required to be held under the Business Corporations Act;
or
|
(2)
|
the
shareholders fail, at the annual general meeting or in the unanimous
resolution contemplated by Article 10.2, to elect or appoint any
directors;
|
|
then each
director then in office continues to hold office until the earlier
of:
|
(3)
|
the date on
which his or her successor is elected or appointed;
and
|
(4)
|
the date on
which he or she otherwise ceases to hold office under the Business Corporations Act
or these Articles.
|
41
14.4 Places
of Retiring Directors Not Filled
If, at any meeting
of shareholders at which there should be an election of directors, the places of
any of the retiring directors are not filled by that election, those retiring
directors who are not re-elected and who are asked by the newly elected
directors to continue in office will, if willing to do so, continue in office to
complete the number of directors for the time being set pursuant to these
Articles until further new directors are elected at a meeting of shareholders
convened for that purpose. If any such election or continuance of directors does
not result in the election or continuance of the number of directors for the
time being set pursuant to these Articles, the number of directors of the
Company is deemed to be set at the number of directors actually elected or
continued in office.
14.5 Directors
May Fill Casual Vacancies
Any casual vacancy
occurring in the board of directors may be filled by the directors.
14.6 Remaining
Directors Power to Act
The directors may
act notwithstanding any vacancy in the board of directors, but if the Company
has fewer directors in office than the number set pursuant to these Articles as
the quorum of directors, the directors may only act for the purpose of
appointing directors up to that number or of summoning a meeting of shareholders
for the purpose of filling any vacancies on the board of directors or, subject
to the Business Corporations
Act, for any other purpose.
14.7 Shareholders
May Fill Vacancies
If
the Company has no directors or fewer directors in office than the number set
pursuant to these Articles as the quorum of directors, the shareholders may
elect or appoint directors to fill any vacancies on the board of
directors.
14.8 Additional
Directors
Notwithstanding
Articles 13.1 and 13.2, between annual general meetings or unanimous resolutions
contemplated by Article 10.2, the directors may appoint one or more additional
directors, but the number of additional directors appointed under this Article
14.8 must not at any time exceed:
(1)
|
one-third of
the number of first directors, if, at the time of the appointments, one or
more of the first directors have not yet completed their first term of
office; or
|
(2)
|
in any other
case, one-third of the number of the current directors who were elected or
appointed as directors other than under this Article
14.8.
|
Any director so
appointed ceases to hold office immediately before the next election or
appointment of directors under Article 14.1(1), but is eligible for re-election
or re-appointment.
42
14.9 Ceasing
to be a Director
A
director ceases to be a director when:
(1)
|
the term of
office of the director expires;
|
(2)
|
the director
dies;
|
(3)
|
the director
resigns as a director by notice in writing provided to the Company or a
lawyer for the Company; or
|
(4)
|
the director
is removed from office pursuant to Articles 14.10 or
14.11.
|
14.10 Removal
of Director by Shareholders
The Company may
remove any director before the expiration of his or her term of office by
special resolution. In that event, the shareholders may elect, or appoint by
ordinary resolution, a director to fill the resulting vacancy. If the
shareholders do not elect or appoint a director to fill the resulting vacancy
contemporaneously with the removal, then the directors may appoint or the
shareholders may elect, or appoint by ordinary resolution, a director to fill
that vacancy.
14.11 Removal
of Director by Directors
The directors may
remove any director before the expiration of his or her term of office if the
director is convicted of an indictable offence, or if the director ceases to be
qualified to act as a director of a company and does not promptly resign, and
the directors may appoint a director to fill the resulting vacancy.
15. ALTERNATE
DIRECTORS
15.1 Appointment
of Alternate Director
Any director (an
“appointor”) may by notice in writing received by the Company appoint any person
(an “appointee”) who is qualified to act as a director to be his or her
alternate to act in his or her place at meetings of the directors or committees
of the directors at which the appointor is not present unless (in the case of an
appointee who is not a director) the directors have reasonably disapproved the
appointment of such person as a alternate director and have given notice to that
effect to his or her appointor within a reasonable time after the notice of
appointment is received by the Company.
15.2 Notice
of Meetings
Every alternate
director so appointed is entitled to notice of meetings of the directors and of
committees of the directors of which his or her appointor is a member and to
attend and vote as a director at any such meetings at which his or her appointor
is not present.
43
15.3 Alternate
for More Than One Director Attending Meetings
A
person may be appointed as an alternate director by more than one director, and
an alternate director:
(1)
|
will be
counted in determining the quorum for a meeting of directors once for each
of his or her appointors and, in the case of an appointee who is also a
director, once more in that
capacity;
|
(2)
|
has a
separate vote at a meeting of directors for each of his or her appointors
and, in the case of an appointee who is also a director, an additional
vote in that capacity;
|
(3)
|
will be
counted in determining the quorum for a meeting of a committee of
directors once for each of his or her appointors who is a member of that
committee and, in the case of an appointee who is also a member of that
committee as a director, once more in that
capacity;
|
(4)
|
has a
separate vote at a meeting of a committee of directors for each of his or
her appointors who is a member of that committee and, in the case of an
appointee who is also a member of that committee as a director, an
additional vote in that capacity.
|
15.4 Consent
Resolutions
Every alternate
director, if authorized by the notice appointing him or her, may sign in place
of his or her appointor any resolutions to be consent to in
writing.
15.5 Alternate
Director Not an Agent
Every alternate
director is deemed not to be the agent of his or her appointor.
15.6 Revocation
of Appointment of Alternate Director
An
appointor may at any time, by notice in writing receive by the Company, revoke
the appointment of an alternate director appointed by him or her.
15.7 Ceasing
to be an Alternate Director
The appointment of
an alternate director ceases when:
(1)
|
his or her
appointor ceases to be a director and is not promptly re-elected or
re-appointed;
|
(2)
|
the alternate
director dies;
|
(3)
|
the alternate
director resigns as an alternate director by notice in writing provided to
the Company or a lawyer for the
Company;
|
(4)
|
the alternate
director ceases to be qualified to act as a director;
or
|
(5)
|
his or her
appointor revokes the appointment of the alternate
director.
|
44
15.8 Remuneration
and Expenses of Alternate Director
The Company may
reimburse an alternate director for the reasonable expenses that would be
properly reimbursed if he or she were a director, and the alternate director is
entitled to receive from the Company such proportion, if any, of the
remuneration otherwise payable to the appointor as the appointor may from time
to time direct.
16. POWERS
AND DUTIES OF DIRECTORS
16.1 Powers
of Management
The directors must,
subject to the Business
Corporations Act and these Articles, manage or supervise the management
of the business and affairs of the Company and have the authority to exercise
all such powers of the Company as are not, by the Business Corporations Act or
by these Articles, required to be exercised by the shareholders of the
Company.
16.2 Appointment
of Attorney of Company
The directors may
from time to time, by power of attorney or other instrument, under seal if so
required by law, appoint any person to be the attorney of the Company for such
purposes, and with such powers, authorities and discretions (not exceeding those
vested in or exercisable by the directors under these Articles and excepting the
power to fill vacancies in the board of directors, to remove a director, to
change the membership of, or fill vacancies in, any committee of the directors,
to appoint or remove officers appointed by the directors and to declare
dividends) and for such period, and with such remuneration and subject to such
conditions as the directors may think fit. Any such power of attorney may
contain such provisions for the protection or convenience of persons dealing
with such attorney as the directors think fit. Any such attorney may be
authorized by the directors to sub-delegate all or any of the powers,
authorities and discretions for the time being vested in him or
her.
16.3 Setting
Remuneration of Auditor
The directors may
set the remuneration of the auditor of the Company without the prior approval of
the shareholders.
17. DISCLOSURE
OF INTEREST OF DIRECTORS
17.1 Obligation
to Account for Profits
A
director or senior officer who holds a disclosable interest (as that term is
used in the Business
Corporations Act) in a contract or transaction into which the Company has
entered or proposes to enter is liable to account to the Company for any profit
that accrues to the director or senior officer under or as a result of the
contract or transaction only if and to the extent provided in the Business Corporations
Act.
17.2 Restrictions
on Voting by Reason of Interest
A
director who holds a disclosable interest in a contract or transaction into
which the Company has entered or proposes to enter is not entitled to vote on
any directors’ resolution to approve that contract or transaction, unless all
the directors have a disclosable interest in that contract or transaction, in
which case any or all of those directors may vote on such
resolution.
45
17.3 Interested
Director Counted in Quorum
A
director who holds a disclosable interest in a contract or transaction into
which the Company has entered or proposes to enter and who is present at the
meeting of directors at which the contract or transaction is considered for
approval may be counted in the quorum at the meeting whether or not the director
votes on any or all of the resolutions considered at the meeting.
17.4 Disclosure
of Conflict of Interest or Property
A
director or senior officer who holds any office or possesses any property, right
or interest that could result, directly or indirectly, in the creation of a duty
or interest that materially conflicts with that individual’s duty or interest as
a director or senior officer, must disclose the nature and extent of the
conflict as required by the Business Corporations
Act.
17.5 Director
Holding Other Office in the Company
A
director may hold any office or place of profit with the Company, other than the
office of auditor of the Company, in addition to his or her office of director
for the period and on the terms (as to remuneration or otherwise) that the
directors may determine.
17.6 No
Disqualification
No
director or intended director is disqualified by his or her office from
contracting with the Company either with regard to the holding of any office or
place of profit the director holds with the Company or as vendor, purchaser or
otherwise, and no contract or transaction entered into by or on behalf of the
Company in which a director is in any way interested is liable to be voided for
that reason.
17.7 Professional
Services by Director or Officer
Subject to the
Business Corporations Act,
a director or officer, or any person in which a director or officer has
an interest, may act in a professional capacity for the Company, except as
auditor of the Company, and the director or officer or such person is entitled
to remuneration for professional services as if that director or officer were
not a director or officer.
17.8 Director
or Officer in Other Corporations
A
director or officer may be or become a director, officer or employee of, or
otherwise interested in, any person in which the Company may be interested as a
shareholder or otherwise, and, subject to the Business Corporations Act,
the director or officer is not accountable to the Company for any
remuneration or other benefits received by him or her as director, officer or
employee of, or from his or her interest in, such other person.
18. PROCEEDINGS
OF DIRECTORS
18.1 Meetings
of Directors
The directors may
meet together for the conduct of business, adjourn and otherwise regulate their
meetings as they think fit, and meetings of the directors held at regular
intervals may be held at the place, at the time and on the notice, if any, as
the directors may from time to time determine.
46
18.2 Voting
at Meetings
Questions arising
at any meeting of directors are to be decided by a majority of votes and, in the
case of an equality of votes, the chair of the meeting does not have a second or
casting vote.
18.3 Chair
of Meetings
The following
individual is entitled to preside as chair at a meeting of
directors:
(1)
|
the chair of
the board, if any;
|
(2)
|
in the
absence of the chair of the board, the president, if any, if the president
is a director; or
|
(3)
|
any other
director chosen by the directors
if:
|
|
(a)
|
neither the
chair of the board nor the president, if a director, is present at the
meeting within 15 minutes after the time set for holding the
meeting;
|
|
(b)
|
neither the
chair of the board nor the president, if a director, is willing to chair
the meeting; or
|
|
(c)
|
the chair of
the board and the president, if a director, have advised the secretary, if
any, or any other director, that they will not be present at the
meeting.
|
18.4 Meetings
by Telephone or Other Communications Medium
A
director may participate in a meeting of the directors or of any committee of
the directors:
(a)
|
in
person;
|
(b)
|
by telephone;
or
|
(c)
|
with the
consent of all the directors who wish to participate in the meeting, by
other communications medium;
|
if
all directors participating in the meeting, whether in person or by telephone or
other communications medium, are able to communicate with each other. A director
who participates in a meeting in a manner contemplated by this Article 18.4 is
deemed for all purposes of the Business Corporations Act and
these Articles to be present at the meeting and to have agreed to participate in
that manner.
47
18.5 Calling
of Meetings
A
director may, and the secretary or an assistant secretary of the Company, if
any, on the request of a director must, call a meeting of the directors at any
time.
18.6 Notice
of Meetings
Other than for
meetings held at regular intervals as determined by the directors pursuant to
Article 18.1, reasonable notice of each meeting of the directors, specifying the
place, day and time of that meeting must be given to each of the directors and
the alternate directors by any method set out in Article 24.1 or orally or by
telephone.
18.7
When Notice Not Required
It
is not necessary to give notice of a meeting of the directors to a director or
an alternate director if
(1)
|
the meeting
is to be held immediately following a meeting of shareholders at which
that director was elected or appointed, or is the meeting of the directors
at which that director is appointed;
or
|
(2)
|
the director
or alternate director, as the case may be, has waived notice of the
meeting.
|
18.8
Meeting Valid Despite Failure to Give Notice
The accidental
omission to give notice of any meeting of directors to, or the non-receipt of
any notice by, any director or alternate director, does not invalidate any
proceedings at that meeting.
18.9
Waiver of Notice of Meetings
Any director or
alternate director may send to the Company a document signed by him or her
waiving notice of any past, present or future meeting or meetings of the
directors and may at any time withdraw that waiver with respect to meetings held
after that withdrawal. After sending a waiver with respect to all future
meetings and until that waiver is withdrawn, no notice of any meeting of the
directors need be given to that director and, unless the director otherwise
requires by notice in writing to the Company, to his or her alternate director,
and all meetings of the directors so held are deemed not to be improperly called
or constituted by reason of notice not having been given to such director or
alternate director. Attendance of a director or alternate director at a meeting
of the directors is a waiver of notice of the meeting unless that director or
alternate director attends the meeting for the express purpose of objecting to
the transaction of any business on the grounds that the meeting is not lawfully
called.
18.10
Quorum
The quorum
necessary for the transaction of the business of the directors may be set by the
directors and, if not so set, is deemed to be set at a majority of the directors
in office or, if the number of directors is set at one, is deemed to be set at
one director, and that director may constitute a meeting.
48
18.11
Validity of Acts Where Appointment Defective
Subject to the
Business Corporations Act,
an act of a director or officer is not invalid merely because of an
irregularity in the election or appointment or a defect in the qualification of
that director or officer.
18.12 Consent
Resolutions in Writing
A
resolution of the directors or of any committee of the directors may be passed
without a meeting:
(1)
|
in all cases,
if each of the directors entitled to vote on the resolution consents to it
in writing; or
|
(2)
|
in the case
of a resolution to approve a contract or transaction in respect of which a
director has disclosed that he or she may have a disclosable interest, if
each of the other directors who have not made such a disclosure consents
in writing to the resolution.
|
A
consent in writing under this Article 18.12 may be by signed document, fax email
or any other method of transmitting legible recorded messages. A consent in
writing may be in two or more counterparts which together are deemed to
constitute one consent in writing. A resolution of the directors or of any
committee of the directors passed in accordance with this Article 18.12 is
effective on the date stated in the consent in writing or on the latest date
stated on any counterpart and is deemed to be a proceeding at a meeting of
directors or of the committee of the directors and to be as valid and effective
as if it had been passed at a meeting of the directors or of the committee of
the directors that satisfies all the requirements of the Business Corporations Act and
all the requirements of these Articles relating to meetings of the directors or
of a committee of the directors.
19. COMMITTEES
19.1 Appointment
and Powers of Executive Committee
The directors may,
by resolution, appoint an executive committee consisting of the director or
directors that they consider appropriate, and this committee has, during the
intervals between meeting of the board of directors, all of the directors’
powers, except:
(1)
|
the power to
fill vacancies in the board of
directors;
|
(2)
|
the power to
remove a director;
|
(3)
|
the power to
change the membership of, or fill vacancies in, any committee of the
directors; and
|
(4)
|
such other
powers, if any, as may be set out in the resolution or any subsequent
directors’ resolution.
|
19.2 Appointment
and Powers of Other Committees
The directors may,
by resolution:
(1)
|
appoint one
or more committees (other than the executive committee) consisting of the
director or directors that they consider
appropriate;
|
(2)
|
delegate to a
committee appointed under paragraph (1) any of the directors’ powers,
except:
|
|
(a)
|
the power to
fill vacancies in the board of
directors;
|
|
(b)
|
the power to
remove a director;
|
|
(c)
|
the power to
change the membership of, or fill vacancies in, any committee of the
directors; and
|
|
(d)
|
the power to
appoint or remove officers appointed by the directors;
and
|
(3)
|
make any
delegation referred to in paragraph (2) subject to the conditions set out
in the resolution or any subsequent directors’
resolution.
|
49
19.3 Obligations
of Committees
Any committee
appointed under Articles 19.1 or 19.2, in the exercise of the powers delegated
to it, must:
(1)
|
conform to
any rules that may from time to time be imposed on it by the directors;
and
|
(2)
|
report every
act or thing done in exercise of those powers at such times as the
directors may require.
|
19.4 Powers
of Board
The directors may,
at any time, with respect to a committee appointed under Articles 19.1 or
19.2:
(1)
|
revoke or
alter the authority given to the committee, or override a decision made by
the committee, except as to acts done before such revocation, alteration
or overriding;
|
(2)
|
terminate the
appointment of, or change the membership of, the committee;
and
|
(3)
|
fill
vacancies in the committee.
|
19.5
|
Committee
Meetings
|
Subject to Article
19.2(1) and unless the directors otherwise provide in the resolution appointing
the committee or in any subsequent resolution, with respect to a committee
appointed under Articles 19.1 or 19.2:
(1)
|
the committee
may meet and adjourn as it thinks
proper;
|
(2)
|
the committee
may elect a chair of its meetings but, if no chair of a meeting is
elected, or if at a meeting the chair of the meeting is not present within
15 minutes after the time set for holding the meeting, the directors
present who are members of the committee may choose one of their number to
chair the meeting;
|
(3)
|
a majority of
the members of the committee constitutes a quorum of the committee;
and
|
(4)
|
questions
arising at any meeting of the committee are determined by a majority of
votes of the members present, and in case of an equality of votes, the
chair of the meeting does not have a second or casting
vote.
|
50
20. OFFICERS
20.1 Directors
May Appoint Officers
The directors may,
from time to time, appoint such officers, if any, as the directors determine and
the directors may, at any time, terminate any such appointment.
20.2 Functions,
Duties and Powers of Officers
The directors may,
for each officer:
(1)
|
determine the
functions and duties of the
officer;
|
(2)
|
entrust to
and confer on the officer any of the powers exercisable by the directors
on such terms and conditions and with such restrictions as the directors
think fit; and
|
(3)
|
revoke,
withdraw, alter or vary all or any of the functions, duties and powers of
the officer.
|
20.3 Qualifications
No
officer may be appointed unless that officer is qualified in accordance with the
Business Corporations Act. One person
may hold more than one position as an officer of the Company. Any person
appointed as the chair of the board or as the managing director must be a
director. Any other officer need not be a director.
20.4 Remuneration
and Terms of Appointment
All appointments of
officers are to be made on the terms and conditions and at the remuneration
(whether by way of salary, fee, commission, participation in profits or
otherwise) that the directors think fit and are subject to termination at the
pleasure of the directors, and an officer may in addition to such remuneration
be entitled to receive, after he or she ceases to hold such office or leaves the
employment of the Company, a pension or gratuity.
21. INDEMNIFICATION
21.1 Definitions
In
this Article 21:
(1)
|
“eligible
penalty” means a judgment, penalty or fine awarded or imposed in, or an
amount paid in settlement of, an eligible
proceeding;
|
(2)
|
“eligible
proceeding” means a legal proceeding or investigative action, whether
current, threatened, pending or completed, in which a director, former
director or alternate director of the Company (an “eligible party”) or any
of the heirs and legal personal representatives of the eligible party, by
reason of the eligible party being or having been a director or alternate
director of the Company:
|
|
(a)
|
is or may be
joined as a party; or
|
|
(b)
|
is or may be
liable for or in respect of a judgment, penalty or fine in, or expenses
related to, the proceeding;
|
(3)
|
“expenses”
has the meaning set out in the Business Corporations
Act.
|
51
21.2 Mandatory
Indemnification of Directors and Former Directors
Subject to the
Business Corporations Act,
the Company must indemnify a director, former director or alternate
director of the Company and his or her heirs and legal personal representatives
against all eligible penalties to which such person is or may be liable, and the
Company must, after the final disposition of an eligible proceeding, pay the
expenses actually and reasonably incurred by such person in respect of that
proceeding. Each director and alternate director is deemed to have contracted
with the Company on the terms of the indemnity contained in this Article
21.2.
21.3 Indemnification
of Other Persons
Subject to any
restrictions in the Business
Corporations Act, the Company may indemnify any person.
21.4 Non-Compliance
with Business Corporations
Act
The failure of a
director, alternate director or officer of the Company to comply with the Business Corporations Act or
these Articles does not invalidate any indemnity to which he or she is entitled
under this Part.
21.5 Company
May Purchase Insurance
The Company may
purchase and maintain insurance for the benefit of any person (or his or her
heirs or legal personal representatives) who:
(1)
|
is or was a
director, alternate director, officer, employee or agent of the
Company;
|
(2)
|
is or was a
director, alternate director, officer, employee or agent of a corporation
at a time when the corporation is or was an affiliate of the
Company;
|
(3)
|
at the
request of the Company, is or was a director, alternate director, officer,
employee or agent of a corporation or of a partnership, trust, joint
venture or other unincorporated
entity;
|
(4)
|
at the
request of the Company, holds or held a position equivalent to that of a
director, alternate director or officer of a partnership, trust, joint
venture or other unincorporated
entity;
|
against any
liability incurred by him or her as such director, alternate director, officer,
employee or agent or person who holds or held such equivalent
position.
22. DIVIDENDS
22.1 Payment
of Dividends Subject to Special Rights
The provisions of
this Article 22 are subject to the rights, if any, of shareholders holding
shares with special rights as to dividends.
52
22.2 Declaration
of Dividends
Subject to the
Business Corporations Act,
the directors may from time to time declare and authorize payment of such
dividends as they may deem advisable.
22.3 No
Notice Required
The directors need
not give notice to any shareholder of any declaration under Article
22.2.
22.4 Record
Date
The directors may
set a date as the record date for the purpose of determining shareholders
entitled to receive payment of a dividend. The record date must not precede the
date on which the dividend is to be paid by more than two months. If no record
date is set, the record date is 5 p.m. on the date on which the directors pass
the resolution declaring the dividend.
22.5 Manner
of Paying Dividend
A
resolution declaring a dividend may direct payment of the dividend wholly or
partly by the distribution of specific assets or of fully paid shares or of
bonds, debentures or other securities of the Company, or in any one or more of
those ways.
22.6 Settlement
of Difficulties
If
any difficulty arises in regard to a distribution under Article 22.5, the
directors may settle the difficulty as they deem advisable, and, in particular,
may:
(1)
|
set the value
for distribution of specific
assets;
|
(2)
|
determine
that cash payments in substitution for all or any part of the specific
assets to which any shareholders are entitled may be made to any
shareholders on the basis of the value so fixed in order to adjust the
rights of all parties; and
|
(3)
|
vest any such
specific assets in trustees for the persons entitled to the
dividend.
|
22.7 When
Dividend Payable
Any dividend may be
made payable on such date as is fixed by the directors.
53
22.8 Dividends
to be Paid in Accordance with Number of Shares
All dividends on
shares of any class or series of shares must be declared and paid according to
the number of such shares held.
22.9 Receipt
by Joint Shareholders
If
several persons are joint shareholders of any share, any one of them may give an
effective receipt for any dividend, bonus or other money payable in respect of
the share.
22.10 Dividend
Bears No Interest
No
dividend bears interest against the Company.
22.11 Fractional
Dividends
If
a dividend to which a shareholder is entitled includes a fraction of the
smallest monetary unit of the currency of the dividend, that fraction may be
disregarded in making payment of the dividend and that payment represents full
payment of the dividend.
22.12 Payment
of Dividends
Any dividend or
other distribution payable in cash in respect of shares may be paid by cheque,
made payable to the order of the person to whom it is sent, and mailed to the
address of the shareholder, or in the case of joint shareholders, to the address
of the joint shareholder who is first named on the central securities register,
or to the person and to the address the shareholder or joint shareholders may
direct in writing. The mailing of such cheque will, to the extent of the sum
represented by the cheque (plus the amount of the tax required by law to be
deducted), discharge all liability for the dividend unless such cheque is not
paid on presentation or the amount of tax so deducted is not paid to the
appropriate taxing authority.
22.13 Capitalization
of Retained Earnings or Surplus
Notwithstanding
anything contained in these Articles, the directors may from time to time
capitalize any retained earnings or surplus of the Company and may from time to
time issue, as fully paid, shares or any bonds, debentures or other securities
of the Company as a dividend representing the retained earnings or surplus or
any part thereof.
23. DOCUMENTS,
RECORDS AND REPORTS
23.1 Recording
of Financial Affairs
The directors must
cause adequate accounting records to be kept to record properly the financial
affairs and condition of the Company and to comply with the Business Corporations
Act.
23.2 Inspection
of Accounting Records
Unless the
directors determine otherwise, or unless otherwise determined by ordinary
resolution, no shareholder of the Company is entitled to inspect or obtain a
copy of any accounting records of the Company.
54
24. NOTICES
24.1 Method
of Giving Notice
Unless the Business Corporations Act or
these Articles provides otherwise, a notice, statement, report or other record
required or permitted by the Business Corporations Act or
these Articles to be sent by or to a person may be sent by any one of the
following methods:
(1)
|
mail
addressed to the person at the applicable address for that person as
follows:
|
|
(a)
|
for a record
mailed to a shareholder, the shareholder’s registered
address;
|
|
(b)
|
for a record
mailed to a director or officer, the prescribed address for mailing shown
for the director or officer in the records kept by the Company or the
mailing address provided by the recipient for the sending of that record
or records of that class;
|
|
(c)
|
in any other
case, the mailing address of the intended
recipient;
|
(2)
|
delivery at
the applicable address for that person as follows, addressed to the
person:
|
|
(a)
|
for a record
delivered to a shareholder, the shareholder’s registered
address;
|
|
(b)
|
for a record
delivered to a director or officer, the prescribed address for delivery
shown for the director or officer in the records kept by the Company or
the delivery address provided by the recipient for the sending of that
record or records of that class;
|
|
(c)
|
in any other
case, the delivery address of the intended
recipient;
|
(3)
|
fax to the
fax number provided by the intended recipient for the sending of that
record or records of that class;
|
(4)
|
email to the
email address provided by the intended recipient for the sending of that
record or records of that class;
and
|
(5)
|
physical
delivery to the intended recipient.
|
24.2 Deemed
Receipt
|
A notice,
statement, report or other record that
is:
|
(1)
|
mailed to a
person by ordinary mail to the applicable address for that person referred
to in Article 24.1 is deemed to be received by the person to whom it was
mailed on the day, Saturdays, Sundays and holidays excepted, following the
date of mailing;
|
(2)
|
faxed to a
person to the fax number provided by that person referred to in Article
24.1 is deemed to be received by that person to whom it was faxed on the
day it was faxed; and
|
(3)
|
emailed to a
person to the email address provided by that person referred to in Article
24.1 is deemed to be received by the person to whom it was emailed on the
day it was emailed.
|
55
24.3 Certificate
of Sending
A
certificate signed by the secretary, if any, or other officer of the Company or
of any other corporation acting in that behalf for the Company stating that a
notice, statement, report or other record was addressed as required by Article
24.1, prepaid and mailed or otherwise sent as permitted by Article 24.1 is
conclusive evidence of that fact.
24.4 Notice
to Joint Shareholders
A
notice, statement, report or other record may be provided by the Company to the
joint shareholders of a share by providing the notice to the joint shareholder
first named in the central securities register in respect of the
share.
24.5 Notice
to Trustees
A
notice, statement, report or other record may be provided by the Company to the
persons entitled to a share in consequence of the death, bankruptcy or
incapacity of a shareholder by:
(1) mailing
the record, addressed to them:
|
(a)
|
by name, by
the title of the legal personal representative of the deceased or
incapacitated shareholder, by the title of trustee of the bankrupt
shareholder or by any similar description;
and
|
|
(b)
|
at the
address, if any, supplied to the Company for that purpose by the persons
claiming to be so entitled; or
|
(2)
|
if an address
referred to in paragraph (1)(b) has not been supplied to the Company, by
giving the notice in a manner in which it might have been given if the
death, bankruptcy or incapacity had not
occurred.
|
25.
SEAL
25.1
Who
May Attest Seal
Except as provided
in Articles 25.2 and 25.3, the Company's seal, if any, must not be impressed on
any record except when that impression is attested by the signatures
of:
(1)
|
any two
directors;
|
(2)
|
any officer,
together with any director;
|
(3)
|
if the
company only has one director, that director;
or
|
(4)
|
any one or
more directors or officers or persons as may be determined by the
directors.
|
56
25.2 Sealing
Copies
For the purpose of
certifying under seal a certificate of incumbency of the directors or officers
of the Company or a true copy of any resolution or other document, despite
Article 25.1, the impression of the seal may be attested by the signature of any
director or officer.
25.3 Mechanical
Reproduction of Seal
The directors may
authorize the seal to be impressed by third parties on share certificates or
bonds, debentures or other securities of the Company as they may determine
appropriate from time to time. To enable the seal to be impressed on any share
certificates or bonds, debentures or other securities of the Company, whether in
definitive or interim form, on which facsimiles of any of the signatures of the
directors or officers of the Company are, in accordance with the Business Corporations Act or
these Articles, printed or otherwise mechanically reproduced, there may be
delivered to the person employed to engrave, lithograph or print such definitive
or interim share certificates or bonds, debentures or other securities one or
more unmounted dies reproducing the seal and the chair of the board or any
senior officer together with the secretary, treasurer, secretary-treasurer, an
assistant secretary, an assistant treasurer or an assistant secretary-treasurer
may in writing authorize such person to cause the seal to be impressed on such
definitive or interim share certificates or bonds, debentures or other
securities by the use of such dies. Share certificates or bonds, debentures or
other securities to which the seal has been so impressed are for all purposes
deemed to be under and to bear the seal impressed on them.
26. SPECIAL
RIGHTS AND RESTRICTIONS ATTACHING TO PREFERRED SHARES
26.1 Voting
Subject to the
rights of the holders of preferred shares to vote at a class meeting of the
holders of such shares, the holders of preferred shares are not entitled to
receive notice of, or attend and vote at, any meetings of the shareholders of
the Company.
26.2 Winding
Up
In
the event of the liquidation, dissolution or winding up of the Company or other
distribution of property or assets of the Company among its shareholders for the
purpose of winding up its affairs, each holder of a preferred share will be
entitled, as such, in respect of each such share to receive from the property
and assets of the Company an amount equal to the price paid by the holder to the
Company for each such share before any amount shall be paid or any property or
assets of the Company distributed to the holders of any other class of shares of
the Company, but shall not be entitled to share any further in the distribution
of the property or assets of the Company.