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Statutes of Newfoundland and Labrador 2002


Statutes of Newfoundland and Labrador 2002 Chapter 1

CHAPTER 1

AN ACT TO AMEND THE FISHERY PRODUCTS INTERNATIONAL LIMITED ACT

(Assented to March 14, 2002)

Analysis

1. S.2.1 Added
Purpose

2. S.5.1 Added
Head office

3. S.11.1 Added
No action or compensation

4. Sch. B R&S

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSNL1990 cF-15

1. The Fishery Products International Limited Act is amended by adding immediately after section 2 the following:

Purpose

2.1 (1) The purpose of this Act is

(a) to recognize the fundamental role that the fishing industry plays in Newfoundland and Labrador;

(b) to continue the company as a widely held company that can act as a flagship for the industry whose objective is the growth and strengthening of the fishery of the province;

(c) to recognize the need for a company which operates on the basis of sound business and commercial decisions without undue disruption to the historical pattern of harvesting and processing in the province; and

(d) to ensure maximum employment stability and productivity through employee participation in the company.

(2) In this section, "the company" means FPI Limited and Fishery Products International Limited.

 

2. The Act is amended by adding immediately after section 5 the following:

Head office

5.1 (1) The head office of FPI Limited and of Fishery Products International Limited shall be located in the province.

(2) In subsection (1), "head office" means the corporate and administrative head offices of FPI Limited and Fishery Products International Limited.

3. The Act is amended by adding immediately after section 11 the following:

No action or compensation

11.1 (1) An action or proceeding, including an action or proceeding for compensation or damages, shall not be instituted or continued against the Crown or a minister, employee or agent of the Crown based on a cause of action arising from or incidental to the enactment or application of a provision of this Act.

(2) A cause of action against the Crown or a minister, employee or agent of the Crown arising from, resulting from or incidental to anything mentioned in subsection (1) is extinguished.

 

4. Schedule B of the Act is repealed and the following substituted:

SCHEDULE "B"

ARTICLE 13 OF FPI LIMITED AND FISHERY PRODUCTS INTERNATIONAL LIMITED

13. (a) Except for any underwriter holding Securities in the course of a distribution to the public or for market making activities coincident with such distribution, and nominees or bare trustees holding Securities, no person shall, together with the associates of such person, beneficially own, in the aggregate, in excess of 15% of the total number of the issued and outstanding Securities of any class of Securities of the Company.

(b) The Company shall (A) refuse any subscription for Securities of any class, and (B) refuse to register in the register of holders of securities, or otherwise recognize, any transfer of Securities of any class, if

(i) the subscriber and associates thereof, or the transferee and associates thereof, as the case may be, would after such subscription or transfer, beneficially own, in the aggregate, in excess of 15% of the total number of the issued and outstanding Securities of any class of Securities of the Company; or

(ii) the subscriber, at the time of subscription, or the transferee, when requesting registration, fails to provide a duly completed and executed declaration of such subscriber or transferee, as the case may be, in the form prescribed from time to time by the Company, establishing, to the satisfaction of the Company, that such subscriber and associates thereof or such transferee and associates thereof, as the case may be, would not, after such subscription or transfer, beneficially own, in the aggregate, in excess of 15% of the total number of the issued and outstanding Securities of any class of Securities of the Company.

Notwithstanding the foregoing, no declaration need be provided in respect of any subscription for or transfer of a number of Securities of any class that is less than might reasonably be expected to give rise to a contravention of the provisions of this Article, such number to be determined by the board of directors from time to time as to any particular class of Securities; and until such a determination, the number as to common shares shall be 5,000 shares or less.

(c) The Company shall (A) sell or cause to be sold, for and on behalf of the registered holder and the beneficial owner thereof, all or a portion of the Securities of any class beneficially owned by a person, or (B) repurchase or redeem, in accordance with any applicable laws now or hereafter in effect, all or a portion of the Securities of any class beneficially owned by a person, as the case may be, if the total number of Securities of any class beneficially owned by such person and any associates thereof exceed 15% of the total number of the issued and outstanding Securities of that class in order to reduce the aggregate number of Securities of that class beneficially owned by such person and any associates thereof to a number equal to no more than 15% of the total number of the issued and outstanding Securities of that class.

Before selling or causing to be sold or repurchasing or redeeming Securities of any class in accordance with this paragraph, the Company shall give notice to the registered holder of such Securities of its intention to sell, repurchase or redeem such Securities and notwithstanding the previous provisions of this paragraph, in the event that the registered holder establishes to the satisfaction of the Company within 30 days of the giving of such notice that the person referred to in the previous provisions of this paragraph and any associates thereof have sold or caused to be sold (to a person or persons who after such sale would not hold Securities of any class in contravention of this Article) sufficient Securities of any class so that the aggregate number of Securities of that class then held by such person and any associates thereof does not exceed 15% of the total number of the issued and outstanding Securities of that class, the Company shall not be required to sell, repurchase or redeem Securities.

(d) The Company shall (A) sell or cause to be sold for and on behalf of the holder and the beneficial owner thereof, all or a portion of the Securities of any class beneficially owned by a person, or (B) repurchase or redeem, in accordance with any applicable laws now or hereafter in effect, all or a portion of the Securities of any class beneficially owned by a person, as the case may be, if the Company has mailed, by prepaid first class mail to the address of the registered holder of the Securities shown on the register of holders of securities for such Securities, the form of declaration then prescribed by the Company and has not received (with respect to such Securities) on or before the 45th day after the date of mailing thereof (or such later date as the Company may prescribe in the declaration) such declaration duly completed and executed by such registered holder or the beneficial owner, as the case may be, establishing, to the satisfaction of the Company, that the total number of Securities of any class held by such beneficial owner and associates thereof does not exceed 15% of the total number of the issued and outstanding Securities of that class.

Notwithstanding the provisions of this paragraph, in the event that, prior to the Company initiating the sale, repurchase or redemption of Securities of any class pursuant to this paragraph, a registered holder establishes to the satisfaction of the Company that the failure to provide the declaration referred to duly completed and executed was due to inadvertence or any other cause reasonably beyond the control of the registered holder, the Company may grant such registered holder an additional 15 days from the date when such information is provided to the Company to permit the registered holder to file the prescribed declaration.

(e) The Directors of the Company shall have the power to determine, which determination shall be final and binding upon all holders of Securities of any class,

(i) whether a subscriber and associates thereof or a transferee and any associates thereof would, after a subscription or transfer, beneficially own in the aggregate in excess of 15% of the total number of the issued and outstanding Securities of that class; and

(ii) whether any person and any associates thereof beneficially own in the aggregate in excess of 15% of the total number of the issued and outstanding Securities of that class.

(f) Upon the sale, repurchase or redemption of any Securities of any class pursuant to the provisions of this Article, the rights of the former registered holder or beneficial owner of such Securities shall be limited to the right to receive the sale, repurchase or redemption proceeds, as the case may be, upon presentation and surrender of the certificate representing the Securities sold, repurchased or redeemed, and any purchaser of Securities sold, repurchased or redeemed pursuant to the provisions of this Article shall acquire such Securities free of any claims of such former registered holder or beneficial owner in respect of such sale, repurchase or redemption. Such proceeds will be deposited by the Company in an account with a chartered bank or trust company for such former registered holder and beneficial owner and any interest earned on such funds so held will accrue to the benefit of such former registered holder and beneficial owner.

(g) The sale proceeds of Securities sold pursuant to the provisions of this Article shall be the net proceeds (after deductions permitted by this Article) received on the sale of such Securities on the stock exchange designated by the Directors of the Company or, if such Securities are not listed or are not trading on a stock exchange, the net proceeds which result from a sale made in such other manner as the Directors of the Company may determine.

(h) The repurchase or redemption price for each Security repurchased or redeemed pursuant to the provisions of this Article shall be the average of the closing prices per Security of such Securities on the stock exchange designated by the Directors of the Company over the last five trading days on which at least one board lot of such Securities traded on such exchange during the period of 6 months ending on the day immediately preceding the date of such repurchase or redemption or, if the Securities are not listed or have not so traded on a stock exchange, the repurchase or redemption price shall be that determined by the Directors of the Company.

(i) If and whenever the Company has determined to sell, repurchase or redeem any Securities pursuant to this Article, the number and selection of such Securities to be sold, repurchased or redeemed shall be determined in the manner provided from time to time by the Directors of the Company, acting fairly and in the best interests of the Company, who shall have the power to determine that any or all such Securities of any class of one registered holder or beneficial owner, and a different number or none of another registered holder or beneficial owner, be sold, repurchased or redeemed. The Directors shall also determine the procedure or procedures for, and the time or times of, any sale, repurchase or redemption of such Securities, provided that if the Directors of the Company determine to sell, repurchase or redeem a portion only of the Securities of one or more registered holders or beneficial owners such portion shall be sufficient so that after sale, repurchase or redemption the relevant share holding limit for Securities of any class set forth in paragraph (a) of this Article is not exceeded.

(j) The Company shall maintain a register of Securities sold, repurchased or redeemed pursuant to the provisions of this Article which register shall be open for inspection at the times and in the manner that the register of holders of Securities is open for inspection, and shall, as soon as is reasonably possible in the circumstances, after such sale, repurchase or redemption,

(i) mail a written notice thereof to the former registered holder of such Securities by prepaid first class mail to the address of such holder shown in the register of holders of Securities specifying the number of Securities sold, repurchased or redeemed, the sale, repurchase or redemption proceeds, as the case may be, of such Securities and the particulars as to how such sale, repurchase or redemption proceeds may be claimed; and

(ii) publish a notice for 2 consecutive days in the financial section of a general circulation daily newspaper in the Cities of Vancouver, Calgary, Edmonton, Regina, Winnipeg, Toronto, Ottawa, Montreal, Halifax and St. Johnís specifying the number of the certificate or certificates representing any Securities which have been sold, repurchased or redeemed, and the costs of such publishing shall be paid from the proceeds of such sale, repurchase or redemption.

(k) If and whenever the Company sells, repurchases or redeems, pursuant to the provisions of this Article, less than all of the Securities represented by a certificate, the remaining Securities shall be transferred to the registrar and transfer agent of the Securities to be held by it as bare trustee for the registered holder thereof. Such registered holder shall be entitled to receive a certificate for such remaining Securities upon request and payment to the registrar and transfer agent of the appropriate fee.

(l) The Company shall have no duty or obligation to ensure that the address of the registered holder of Securities in the register of holders of Securities is complete or correct or to make any inquiries in that regard or take notice of any inaccuracies therein, except to ensure that such address corresponds to the address of such registered holder given to the Company at the time of the subscription for or transfer of Securities or to the last notice in writing received from such registered holder with the express stated purpose of notifying the registrar of such holderís address.

(m) The Directors and officers of the Company shall not be liable to the Company nor shall any of them or the Company be liable to any holder or former holder or any beneficial owner or former beneficial owner of Securities for, or with respect to any matter arising from or related to, anything done or omitted pursuant to the provisions of this Article if done or omitted acting honestly and in good faith.

(n) Neither (i) the acceptance by the Company of a subscription for, or the registration by the Company of a transfer of, Securities under circumstances in which the Company is prohibited from accepting such subscription or registration, nor (ii) the failure of the Company to sell, cause to be sold, repurchase or redeem any Securities in circumstances under which the Company is required to do so pursuant to this Article, shall in any way constitute a waiver of, or preclude the Company from exercising its right to sell, cause to be sold, repurchase or redeem, at any time, any Securities pursuant to the provisions of this Article at any time thereafter.

(o) The Company shall, before the Securities of any class are voted, disqualify or disregard any and all votes cast by any person who, together with such personís associates, beneficially owns Securities of any class entitling the holders thereof to vote more than 15% of the total number of votes attached to the Securities of that class then issued and outstanding.

(p) The term "associate" shall for the purposes of this Article refer to a relationship between 2 persons where:

(i) one person is a corporation that is controlled directly or through one or more subsidiaries of the other person;

(ii) both persons are corporations and one of them is controlled directly or indirectly by the same government, individual or corporation that controls directly or indirectly the other person;

(iii) one of them is a corporation in which the other person beneficially owns or controls, directly or indirectly, shares or securities currently convertible into shares having more than 15% of the voting rights under any or all circumstances or by reason of the occurrence of an event that has occurred and is continuing, or beneficially owns or controls a currently exercisable option or right to purchase such shares or convertible securities;

(iv) one of them is a trust, other than pursuant to any employee share purchase plan established by the Company, or an estate in which the other has substantial beneficial interest or in respect of which the other serves as a trustee or in a similar capacity;

(v) one of them is the spouse of the other or his or her relative if that relative has the same residence as the other;

(vi) both persons are members of a voting trust, other than pursuant to any employee share purchase plan established by the Company, where the trust relates to Securities;

(vii) both persons are agents of the same government; or

(viii) both persons perform on behalf of the same government a function or duty in connection with the administration, management or investment of any fund or monies,

and 2 or more persons associated within the meaning of items (i) and (ii) and items (iv) to (viii) with the same person, shall be associates of each other.

For the purposes of this Article, "control" means control in any manner that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, an agreement or arrangement, the ownership of any body corporate or otherwise, and, without limiting the generality of the foregoing, a corporation is controlled by another person or by 2 or more persons if:

(i) voting securities of the corporation carrying more than 50% of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of the other person or persons, and

(ii) the votes carried by such securities are entitled, if exercised, to elect a majority of the board of directors of the corporation,

but the Directors of the Company acting fairly and in the best interests of the Company may determine that a corporation is controlled by another person or by 2 or more persons notwithstanding that the criteria set forth in clauses (i) and (ii) above are not met and, upon such determination being made by the Directors of the Company, the corporation shall be deemed for all purposes of this Article to be controlled by such other person or persons.

For the purposes of this Article, a corporation shall be deemed to be a subsidiary of another corporation if:

(i) it is controlled by:

(a) that other corporation; or

(b) that other corporation and one or more corporations, each of which is controlled by that other corporation; or

(c) 2 or more corporations, each of which is controlled by that other corporation; or

(ii) it is a subsidiary of a corporation that is that other corporationís subsidiary.

The term "associate" also applies to the parties to a relationship between any persons, firms, associations, corporations, partnerships or others or between any combination of the foregoing who are, in the sole opinion of the Directors of the Company, acting in concert with respect to the Company or their Securities or other interest in the Company.

(q) The term "Securities" when used in this Article shall mean any securities in the capital of the Company and shall include without limitation securities of the Company convertible into, or any options, warrants or other rights to acquire, Securities.

(r) When used herein, the terms "subscriber" and "transferee" shall include all such persons that beneficially own, or would after the subscription or transfer beneficially own, a direct or indirect interest in Securities of any class except those that hold as bare trustees, nominees or underwriters holding Securities as provided in paragraph (a) of this Article. A "registered holder" means the person in whose name Securities are registered on the relevant corporationís securities register or on the books or records of the corporationís transfer agent or registrar. "Beneficial ownership" includes ownership through one or more trustees, legal representatives, agents or other intermediaries.

(s) To the extent that Securities of any class shall from time to time be issued in series, all calculations and determinations under this Article in respect of the limitations on the beneficial ownership of Securities shall be made on a series by series basis.

 

 

 

 

 

 

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