Exhibit 99.2
ARTICLES
OF
SILVER ELEPHANT MINING CORP. (BC0912924)
By virtue of the amalgamation of
Prophecy Resource
Corp. (BC0182390),
Prophecy
Holdings Inc. and
Northern Platinum
Ltd. by Certificate of
Amalgamation and Vertical Short Form Amalgamation Application
effective June 13, 2011, Articles and Notice of Articles of
Prophecy Resource
Corp. (BC0182390), one of the amalgamating companies,
became Articles and Notice of Articles of the amalgamated
company, Prophecy Resource Corp.
which changed its name to
Prophecy Coal
Corp. on June 14, 2011,
subsequently changed its name again to Prophecy Development
Corp. on January 5, 2015 and
subsequently changed its name again to Silver Elephant Mining
Corp. on March 16,
2020.
Incorporation Number
BC0912924
CHANGE OF THE COMPANY’S NAME
UGL ENTERPRISES LTD. CHANGED ITS NAME TO RED HILL ENERGY INC. ON
MAY 29, 2006
RED HILL ENERGY INC. CHANGED ITS NAME TO PROPHECY RESOURCE CORP. ON
APRIL 16, 2010
PROPHECY RESOURCE CORP. CHANGED ITS NAME TO PROPHECY COAL CORP. ON
JUNE 14, 2011
PROPHECY COAL CORP. CHANGED ITS NAME TO PROPHECY DEVELOPMENT CORP.
ON JANUARY 5, 2015
PROPHECY DEVELOPMENT CORP CHANGED ITS NAME TO SILVER ELEPHANT
MINING CORP. ON MARCH 16, 2020
Incorporation Number: BC0912924
SILVER
ELEPHANT MINING CORP.
(the
“Company”)
ARTICLES
Amended
March 16, 2020
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1
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INTERPRETATION
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1
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2
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SHARES AND SHARE CERTIFICATES
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1
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3
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ISSUE OF SHARES
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3
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4
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SECURITIES REGISTERS
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4
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5
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SHARE TRANSFERS
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4
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6
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TRANSMISSION OF SHARES
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5
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7
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PURCHASE OF SHARES
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6
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8
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BORROWING POWERS
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6
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9
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ALTERATIONS
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6
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10
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MEETINGS OF SHAREHOLDERS
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8
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11
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PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
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9
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12
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VOTES OF SHAREHOLDERS
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13
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13
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DIRECTORS
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17
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14
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ELECTION AND REMOVAL OF DIRECTORS
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18
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15
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ALTERNATE DIRECTORS
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23
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16
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POWERS AND DUTIES OF DIRECTORS
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25
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17
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DISCLOSURE OF INTEREST OF DIRECTORS
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25
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18
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PROCEEDINGS OF DIRECTORS
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26
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19
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EXECUTIVE AND OTHER COMMITTEES
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28
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20
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OFFICERS
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30
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21
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INDEMNIFICATION
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31
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22
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DIVIDENDS
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32
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23
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DOCUMENTS, RECORDS AND REPORTS
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33
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24
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NOTICES
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34
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25
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SEAL
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35
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26
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PROHIBITIONS
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36
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In
these Articles, unless the context otherwise requires:
(1)
“board
of directors”, “directors” and
“board” mean the directors or sole director of the
Company for the time being;
(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 the
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 the
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;
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, and unless the context
requires otherwise, apply to these Articles as if the Articles 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 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.
2.3
Shareholder
Entitled to Share Certificate or Acknowledgement
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 acknowledgement 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 or acknowledgment for a share to one of several
joint shareholders or to one of the shareholders’ duly
authorized agents will be sufficient for delivery to
all.
Any share certificate or non-transferable written acknowledgment of
a shareholder’s right to obtain a share certificate may be 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 Share Certificate or
Acknowledgement
If the directors are satisfied that a share certificate or a
non-transferable written acknowledgment of the shareholder’s
right to obtain a share certificate is worn out or defaced, the
director must, on production of the share certificate or
acknowledgement, as the case may be, and on such other terms, if
any, as the directors 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 acknowledgement, as the case may
be.
2.6
Replacement
of Lost, Stolen or Destroyed Share Certificate or
Acknowledgement
If a share certificate or a non-transferable written acknowledgment
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 acknowledgment, as the case
may be, if the directors receive:
(1)
proof
satisfactory to the directors that the share certificate or
acknowledgement is lost, stolen or destroyed; and
(2)
any
indemnity the directors consider adequate.
2.7
Splitting
of 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.
2.8
Share
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.
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.
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.
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
service s performed for the Company;
(2)
the
value of the consideration received by the Company equals or
exceeds the issue price set for the share under Article
3.1.
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.
4.1
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.
The Company must not at any time close its central securities
register.
5.1
Registering
Transfers
A transfer of a share of the Company must not be registered
unless:
(1)
a
duly signed instrument of transfer in respect of the share has been
received by the Company;
(2)
if
a share certificate has been issued by the Company in respect of
the share to be transferred, that share certificate has been
surrendered to the Company; and
(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 has been surrendered to the
Company.
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.
5.3
Transferor
Remains Shareholder
Except to the extent that the Business Corporations
Act otherwise provides, a
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
Singing
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 acknowledgements 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
Enquiry
as to Title Not Required
Neither the Company nor any director, officer or agent of the
Company is bound to inquire into 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
acknowledgement of a right to obtain a share certificate for such
shares.
There must be paid to the Company, in relation to the registration
of any transfer, the amount, if any, determined by the
directors.
6.1
Legal
Personal Representative Recognized on Death
In the case of the death of a shareholder, the legal personal
representative, 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, 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.
7.1
Company
Authorized to Purchase Shares
Subject to Article 7.2, the special rights and restrictions
attached to the share of any class or series and the
Business
Corporations Act, 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.
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 the directors consider
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 the directors consider 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.
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)
subdivide
or consolidate all or any of its unissued, or fully paid issued,
shares;
(4)
if
the Company is authorized to issue shares of a class of shares 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;
(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
The Company may by be special 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.
The Company may by ordinary resolution authorize an alteration of
its Notice of Articles in order to change its name.
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 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 the directors think fit, call a meeting
of shareholders.
A general meeting of the Company may be held anywhere in North
America, as determined by the directors.
10.5
Notice
of Meeting of Shareholders
The Company must send notice of the date, time and location of any
meeting of shareholders, 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
and to each director 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;
10.6
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;
10.7
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 5:00 p.m.
on the date immediately preceding the first date on which the
notice is sent or, if no notice is sent, the beginning of the
meeting.
10.8
Failure
to Give Notice and Waiver of Notice
The accidental omission to send notice of any meeting of
shareholders 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 persons entitled to notice of a meeting of
shareholders may, in writing or otherwise, waive or reduce the
period of notice of such meeting.
10.9
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.
10.10
Meetings
by Telephone or Other Communications Medium
A shareholder may participate in a meeting of the shareholders in
person or by telephone, if all shareholders participating in the
meeting, whether in person or by telephone or other communications
medium, are able to communicate with each other and if all
shareholders who wish to participate in the meeting agree to such
participation. A shareholder who participates in a meeting in a
manner contemplated by this Article 10.10 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.
11
PROCEEDINGS
AT MEETINGS OF SHAREHOLDERS
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.
The majority of votes required for the Company to pass a special
resolution at a meeting of shareholders is twothirds of the
votes cast on the resolution.
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 two persons
who are, or represent by proxy, shareholders holding, in the
aggregate, at least five percent of the issued shares 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
The directors, the president (if any), the secretary (if any), the
assistant secretary (if any), the auditor of the Company and any
other persons invited by the directors are entitled to attend any
meeting of shareholders, but if any of those persons does attend a
meeting of shareholders, 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.
If, within ½ 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.
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
½
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.
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 within 15 minutes after the time set for holding 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 the chair of the board and the president 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.
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 or
more, notice of the adjourned meeting must be given as in the case
of the original meeting.
11.13
Decision
by Show of Hands or Poll
Every motion put to a vote at a meeting of shareholders will be
decided on a show of hand 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.
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 11.19, 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.
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 a meeting of the shareholders
must determine the dispute, and his or her determination made in
good faith is final and conclusive.
On a poll, a shareholder is not entitled to more than one vote by
which a chair of a meeting of shareholders is elected.
11.21
Poll
not Available in respect of Election of Chair
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 at the
meeting, and, during that period, make such ballots and proxies
available for inspection during normal business hours by any
shareholder or proxy holder entitled to vote at the meeting. At the
end of such three-month period, the Company may destroy such
ballots and proxies.
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.
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 registered in respect of any
share:
(1)
any
one of the joint shareholders may vote at any meeting of
shareholders, either personally or by proxy, in respect of the
share 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
of shareholders, personally or by proxy, and more than one of the
joint shareholders votes in respect of that share, then only the
vote of the joint shareholder present whose name stands first in
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 a 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.
12.6
Proxy
Provisions do not Apply to Public Companies
Articles 12.7 to 12.15s 12.7
to 12.15
do not apply to the Company if and for
so long as it is a public company or 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.
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 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 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.
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.
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)
by
the chair of the meeting, before the vote is taken.
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:
[name of the company]
(the “Company”)
The
undersigned, being a shareholder of the Company, hereby appoint
[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 is given in
respect of all shares registered in the name of the
shareholder):
Signed
[month, day, year]
Signature
of shareholder
Name
of shareholder - [printed]
12.13
Revocation
of Proxy
Subject to Article 12.14, every proxy may be revoked by an
instrument in writing that is:
(1)
received
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)
provided,
at the meeting, to the chair of the meeting.
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.
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.
13.1
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 14.10, 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 14.6;
(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 14.6;
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 may appoint, or the shareholders may elect or appoint,
directors to fill those vacancies.
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 held any salaried office or place
of profit with the Company or to his or her spouse or dependents
and may make contributions to any fund and pay premium for the
purchase or provision of any such gratuity, pension or
allowance.
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 director
s for the time being set under these Articles; and
(2)
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
Nomination
of Directors
(1)
Nominations of
persons for election to the board of directors may be made at any
annual general meeting of shareholders or at any Special Meeting of
shareholders if one of the purposes for which the Special Meeting
was called was the election of directors. In order to be eligible
for election to the board of directors at any annual general
meeting or Special Meeting of shareholders, persons must be
nominated in accordance with one of the following
procedures:
(i)
by or at the
direction of the board of directors or an authorized officer,
including pursuant to a notice of meeting;
(ii)
by or at the
direction or request of one or more shareholders pursuant to a
proposal made in accordance with the provisions of the Business Corporations Act, or a
requisition of the shareholders made in accordance with the
provisions of the Business
Corporations Act; or
(iii)
by any person (a
“Nominating Shareholder”): (A) who, at the close of
business on the date of the giving by the Nominating Shareholder of
the notice provided for below in this Article 14.2 and at the close
of business on the record date for notice of such meeting, is
entered in the central securities register of the Company as a
holder of one or more shares carrying the right to vote at such
meeting or who beneficially owns shares that are entitled to be
voted at such meeting; and (B) who complies with the notice
procedures set forth below in this Article 14.2.
(2)
In addition to any
other requirements under applicable laws, for a nomination to be
made by a Nominating Shareholder, the Nominating Shareholder must
give notice which is both timely (in accordance with paragraph (3)
below) and in proper written form (in accordance with paragraph (4)
below) to the Corporate Secretary of the Company at the principal
executive offices of the Company.
(3)
A Nominating
Shareholder’s notice to the Corporate Secretary of the
Company will be deemed to be timely if:
(a)
in the case of an
annual general meeting of shareholders, such notice is made not
less than 30 nor more than 65 days prior to the date of the annual general
meeting of shareholders; provided, however, that in the event that
the annual general meeting of shareholders is to be held on a date
that is less than 50 days after the date (the “Notice
Date”) on which the first Public Announcement of the date of
the annual general meeting is made, notice by the Nominating
Shareholder is made not later than the close of business on the
tenth day following the Notice Date; and
(b)
in the case of a
Special Meeting (which is not also an annual general meeting) of
shareholders called for the purpose of electing directors (whether
or not called for other purposes), such notice is made not later
than the close of business on the 15th day following the day on
which the first Public Announcement of the date of the Special
Meeting of shareholders was made. Notwithstanding the foregoing,
the board of directors may, in its sole discretion, waive any
requirements of this paragraph (3).
For
greater certainty, the time periods for the giving of notice by a
Nominating Shareholder as aforesaid shall, in all cases, be
determined based on the original date of the applicable annual
general meeting or Special Meeting, and in no event shall any
adjournment or postponement of an annual general meeting or Special
Meeting or the announcement thereof commence a new time period for
the giving of such notice.
(4)
A Nominating
Shareholder’s notice to the Corporate Secretary of the
Company will be deemed to be in proper form if:
(a)
as to each person
whom the Nominating Shareholder proposes to nominate for election
as a director, such notice sets forth: (A) the name, age, business
address and residential address of the person; (B) the principal
occupation or employment of the person; (C) the class or series and
number of shares in the capital of the Company which are controlled
or which are owned beneficially or of record by the person as of
the record date for the meeting of shareholders (if such date shall
then have been made publicly available and shall have occurred) and
as of the date of such notice; and (D) any other information
relating to the person that would be required to be disclosed in a
dissident’s proxy circular in connection with solicitations
of proxies for election of directors pursuant to the Business Corporations Act and
Applicable Securities Laws (as defined below); and
(b)
as to the
Nominating Shareholder giving the notice, such notice sets forth
any proxy, contract, arrangement, understanding or relationship
pursuant to which such Nominating Shareholder has a right to vote
any shares of the Company and any other information relating to
such Nominating Shareholder that would be required to be made in a
dissident’s proxy circular in connection with solicitations
of proxies for election of directors pursuant to the Business Corporations Act and
Applicable Securities Laws (as defined below).
(5)
The Company may
require any proposed nominee for election as a director to furnish
such additional information as may reasonably be requested by the
Company to determine the eligibility of such proposed nominee to
serve as an independent director of the Company or that could be
material to a reasonable shareholder’s understanding of the
independence, or lack thereof, of such proposed
nominee.
(6)
No person shall be
eligible for election as a director of the Company unless nominated
in accordance with the provisions of this Article 14.2; provided,
however, that nothing in this Article 14.2 shall be deemed to
restrict or preclude discussion by a shareholder (as distinct from
the nomination of directors) at an annual general meeting or
Special Meeting of any matter that is properly brought before such
meeting pursuant to the provisions of the Business Corporations Act or at the
discretion of the Chairman of the meeting. The chair of the meeting
shall have the power and duty to determine whether any nomination
for election of a director was made in accordance with the
procedures set forth in this Article 14.2 and, if any proposed
nomination is not in compliance with such procedures, to declare
such nomination defective and that it be disregarded.
(7)
For purposes of
this Article 14.2:
(a)
“Applicable
Securities Laws” means the applicable securities legislation
of each relevant province and territory of Canada, as amended from
time to time, the rules, regulations and forms made or promulgated
under any such laws and the published national instruments,
multilateral instruments, policies, bulletins and notices of the
securities commission or similar securities regulatory authority of
each province and territory of Canada;
(b)
“Public
Announcement” means disclosure in a press release reported by
a national news service in Canada, or in a document publicly filed
by the Company under its profile on the System of Electronic
Document Analysis and Retrieval (SEDAR) at www.sedar.com;
and
(c)
“Special
Meeting” means any special meeting of shareholders if one of
the purposes for which such meeting is called is the election of
directors.
(8)
Notwithstanding any
other provision of this Article 14.2, notice given to the Corporate
Secretary of the Company pursuant to this Article 14.2 may only be
given by personal delivery, facsimile transmission or by email (at
such email address as may be stipulated from time to time by the
Corporate Secretary of the Company for purposes of this Article
14.2), and shall be deemed to have been given and made only at the
time it is served by personal delivery to the Corporate Secretary
at the address of the principal executive offices of the Company,
email (at the address as aforesaid) or sent by facsimile
transmission (provided that receipt of confirmation of such
transmission has been received); provided that if such delivery or
electronic communication is made on a day which is a not a business
day or later than 5:00 p.m. (Vancouver time) on a day which is a
business day, then such delivery or electronic communication shall
be deemed to have been made on the next following day that is a
business day.
(1) Article 14.2 does not apply to the
Company in the following circumstances:
(a)
if and for so long
as the Company is not a public company; or
(b)
to the election or
appointment of a director or directors in the circumstances set
forth in Article 14.9.
(2)
Any director or
officer of the Company is hereby authorized and directed for and in
the name of and on behalf of the Company to execute or cause to be
executed, whether under corporate seal of the Company or otherwise,
and to deliver or make or cause to be delivered or made all such
filings and documents, and to do or cause to be done all such acts
and things, as in the opinion of such director or officer may be
necessary or desirable in connection with the
foregoing.
14.4
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 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.
14.5
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 directors;.
then each of the directors 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.
14.6
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 Article, the number of directors of the Company
is deemed to be set at the number of directors actually elected or
continued in office.
14.7
Directors
May Fill Casual Vacancies
Any casual vacancy occurring in the board of directors may be
filled by the directors.
14.8
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.
14.9
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.
14.10
Additional
Directors
Notwithstanding Articles 13.1 and 13.2, between annual general
meeting 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 14.10
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 pursuant to
this Article 14.10.
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.
14.11
Ceasing
to be a Director
A director ceases to be a director when:
(1)
the
term of office of the director expires;
(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 14.12 or
14.13.
14.12
Removal
of Director by Shareholders
The Company may remove any director before the expiration of his or
her term of office by ordinary 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.
14.13
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.
15.1
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 an 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.
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.
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.
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 consented 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 received 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.
15.8
Remuneration
of 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.
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 defined 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
disclosable interest in that contract or transaction, in which case
any or all of those directors may vote on such
resolution.
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.
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
of 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.
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.
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 by a communications medium other than
telephone if all directors participating in the meeting, whether in
person or by telephone or other communications medium, are able to
communicate with each other and if all directors who wish to
participate in the meeting agree to such participation. 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.
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.
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.
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 two directors 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.
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
Resolution in Writing
A resolution of the directors or of any committee of the directors
consented to in writing by all of the directors entitled to vote on
it, whether by signed document, fax, email or any other method of
transmitting legibly recorded messages, is as valid and effective
as if it had been passed at a meeting of the directors or of the
committee of the directors duly called and held. Such resolution
may be in two or more counterparts which together are deemed to
constitute one resolution in writing. A resolution passed in that
manner is effective on the date stated in the resolution or on the
latest date stated on any counterpart. A resolution of the
directors or any committee of the directors passed in accordance
with this Article 18.12 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 has 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
EXECUTIVE
AND OTHER 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
meetings of the board of directors, all of the director’s
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.
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.
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.
Subject to Article 19.3(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 meeting 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 the case of an
equality of votes, the chair of the meeting does not have a second
or casting vote.
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.
No officers 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 a 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.
In this Article 21:
(1)
“eligible
penalty” means a judgment, penalty or fine awarded or imposed
in, or an amount paid in settlement or, an eligible
proceeding;
(2)
“eligible
proceeding” means a legal proceeding or investigative action,
whether current or 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.
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 Corporation
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 or 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.
22.1
Payments
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.
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.
The directors need not give notice to any shareholder of any
declaration under Article 22.2.
The directors may set a date as the record date for the purpose of
determining shareholders entitled to receive a 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 5:00 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 difficultly 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.
22.8
Dividends
to be Paid in Accordance with Number of Shares
Subject to the rights of shareholders, if any, holding shares with
special rights as to dividends, 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 Surplus
Notwithstanding anything contained in these Articles, the directors
may from time to time capitalize any 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 surplus or any part of the surplus.
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.
24.1
Method
of Giving Notice
Unless the Business Corporations
Act or these Articles provide
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)
mailing
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)
sending
the record by fax to the fax number provided by the intended
recipient for the sending of that record or records of that
class;
(4)
sending
the record by email to the email address provided by the intended
recipient for the sending of that record or records of that
class;
(5)
physical
delivery to the intended recipient.
24.2
Deemed
Receipt of Mailing
A record that is 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.
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.
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.
25.1
Who
May Attest to 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:
(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.
For the purposes 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 to 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 certificate 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 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.
In this
Article 26:
(1)
“designated
securities” means:
(a)
a
voting security of the Company;
(b)
a
security of the Company that is not a debt security and that
carries a residual right to participate in the earnings of the
Company or, on the liquidation or winding up of the Company, in its
assets; or
(c)
a
security of the Company convertible, directly or indirectly, into a
security described in paragraph (a) or (b);
(2)
“security” has the meaning assigned in
the Securities Act
(British
Columbia);
(3)
“voting
security” means a security of the Company that:
(a)
is
not a debt security; and
(b)
carries
a voting right either under all circumstances or under some
circumstances that have occurred and are continuing.
Article 26.3 does not apply to the Company if and for so long as it
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.
26.3
Consent
Required for Transfer of Shares or Designated
Securities
No share or designated security may be sold, transferred or
otherwise disposed of without the consent of the directors and the
directors are not required to give any reason for refusing to
consent to any such sale, transfer or other
disposition.
