EXHIBIT 3.1
VOTING AGREEMENT
THIS AGREEMENT is made as of March 30, 2003, between the shareholder
identified on the signature page hereto (the "SHAREHOLDER") and Capital
Environmental Resource Inc. ("CERI"), a corporation amalgamated under the laws
of the province of Ontario.
RECITALS
A. CERI will issue to prospective investors, by way of private placement
(the "Financing"), series 1 preferred shares in the capital of CERI (the "Series
1 Preferred Shares") and warrants (the "Warrants") to purchase common shares of
CERI ("Common Shares") to assist CERI in funding certain acquisitions and for
other corporate purposes;
B. The Shareholder is the beneficial owner of certain
Common Shares;
C. The terms of the Series 1 Preferred Shares provide for an automatic
conversion of the Series 1 Preferred Shares into Common Shares on a
one-for-basis and the Warrants become exercisable (together, the "Conversion and
Exercise Issuances"), each upon the holders of Common Shares approving such
conversion and exercisability by ordinary resolution;
D. In connection with the Financing, CERI has covenanted to use its best
efforts to take all actions necessary and advisable and as permitted by law to
hold a meeting of the shareholders of CERI at which the holders of Common Shares
will consider and vote for the Conversion and Exercise Issuances and to secure
the requisite vote or consent of shareholders for the Conversion and Exercise
Issuances;
E. The Board of Directors of CERI has determined that it would be in
CERI's best interest to complete the Financing;
NOW THEREFORE, in consideration of the benefit that the Financing
will confer upon the Shareholder as holder of Common Shares of CERI and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. AGREEMENT TO VOTE COMMON SHARES: At any annual or special
meeting of the shareholders of CERI duly called with respect to the
Conversion and Exercise Issuances and at every continuation or adjournment
thereof (the "Meeting"), and with respect to any action or approval by
written consent of the shareholders of CERI in lieu of such Meeting, the
Shareholder agrees to (i) vote all Common Shares owned by the Shareholder
at such time, individually or as trustee or custodian, in favour of
approval of the Conversion and Exercise Issuances and in favour of any
matter that could reasonably be expected to facilitate the Conversion and
Exercise Issuances and (ii) vote all such Common Shares against any
proposal made in opposition to the Conversion and Exercise Issuances or
which would have the effect of preventing the Conversion and Exercise
Issuances. The Shareholder agrees to be present, in person or by proxy, at
all meetings of
shareholders of CERI and at any adjournment thereof at which the
Conversion and Exercise Issuances is put to a vote. Where Common Shares
are beneficially owned by the Shareholder but not registered in the
Shareholder's name, the Shareholder will cause such Common Shares to be
voted in accordance with this Section 1.
2. APPOINTMENT OF PROXY. The Shareholder hereby irrevocably appoints the
Chief Executive Officer of CERI, or in his absence, the Chief Financial
Officer of CERI, as proxyholder for the Shareholder in respect of the
Meeting to vote in favour of the Conversion and Exercise Issuances.
3. SPECIFIC ENFORCEMENT. The parties hereto acknowledge that damages would be
an inadequate remedy for a breach of this Agreement and that the
obligations of the parties hereto shall be specifically enforceable, in
addition to any other remedy that may be available at law or in equity.
4. AMENDMENT. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto and, in the case of a corporation,
evidenced by a resolution of the directors.
5. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon, inure to the
benefit of and be enforceable by each party and such party's respective
heirs, beneficiaries, executors, representatives, successors and permitted
assigns.
6. EXPIRY. This Agreement will terminate on the earlier of:
(a) five years from the date of this Agreement; and
(b) the date on which the holders of Common Shares approve the Conversion
and Exercise Issuances.
7. GOVERNING LAW. This Agreement will be governed and construed in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein and will be treated, in all respects, as an Ontario contract and
the courts of such province shall have exclusive jurisdiction over any
dispute hereunder.
8. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
9. FURTHER ASSURANCES. Each party hereto shall, from time to time, and at all
times hereafter, at the request of the other party hereto, but without
further consideration, do all such further acts and execute and deliver
all such further documents and instruments as shall be reasonably required
in order to fully perform and carry out the terms and intent hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
date set out above.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By:
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Name:
Title:
Witness: By:
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Name:
Title:
