EXHIBIT 1(2)
BY-LAW NO. 1
A by-law relating generally to the transaction of
the business and affairs of
PENSTAR WIRECOM, LTD.
C O N T E N T S
1. Interpretation 2. Business of the Corporation
3. Borrowing and Securities 4. Directors
5. Committees 6. Officers
7. Protection of Directors, 8. Shares
Officers and Others
9. Dividends and Rights 10. Meetings of Shareholders
11. Notices 12. Effective Date
BE IT ENACTED as a by-law of the Corporation as follows:
1.00 INTERPRETATION
1.01 Definitions. In the by-laws of the Corporation, unless the context
otherwise requires:
"Act" means the Business Corporations Act, Ontario, and any statute
that may be substituted therefor, as from time to time amended;
"appoint" includes "elect" and vice versa;
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"articles" means the articles attached to the certificate of the
Corporation as from time to time amended or restated
"board" means the board of directors of the Corporation;
"by-laws" means this by-law and all other by-laws of the Corporation
from time to time in force and effect;
"'cheque" includes a draft;
"Corporation" means the corporation incorporated under the Act by
Articles of Incorporation under the name "PENSTAR WIRECOM, LTD.";
"meeting of shareholders" includes an annual meeting of shareholders
and special meeting of shareholders; "special meeting of shareholders"
includes a meeting of any class or classes of shareholders and a
special meeting of all shareholders entitled to vote at an annual
meeting of shareholders;
"non-business day" means Saturday, Sunday and any other day that is a
holiday as defined in the Interpretation Act (Canada) as from time to
time amended;
"recorded address" means in the case of a shareholder his address as
recorded in the securities register; and in the case of joint
shareholders the address appearing in the securities register in
respect of such joint holding or the first address so appearing if
there are more than one; and in the case of a director, officer,
auditor or member of a committee of the board, his latest address as
recorded in the records of the Corporation;
"resident Canadian" means an individual who is
(a) a Canadian citizen ordinarily resident in Canada;
(b) a Canadian citizen not ordinarily resident in Canada who is a
member of a prescribed class of persons; or
(c) a permanent resident within the meaning of the Immigration Act
and ordinarily resident in Canada, except a permanent resident
who has been ordinarily resident in Canada for more than one
year after the time at which he first became eligible to apply
for Canadian Citizenship;
"Signing officer" means, in relation to any instrument, any person
authorized to sign the same on behalf of the Corporation by or pursuant
to section 2.04; and
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"unanimous shareholder agreement" means a written agreement among all
the shareholders of the Corporation or among all such shareholders and
a person who is not a shareholder, or a written declaration of the
beneficial owner of all of the issued shares of the Corporation, that
restricts in whole or in part the powers of the directors to manage the
business and affairs of the Corporation, as from time to time amended.
Save as aforesaid, words and expressions defined in the Act have the
same meanings when used herein. Words importing the singular number
include the plural and vice versa; words importing gender include the
masculine, feminine and neuter genders; and words importing a person
include an individual, partnership, association, body corporate,
trustee, executor, administrator, and legal representative.
2.00 BUSINESS OF THE CORPORATION
2.01 REGISTERED OFFICE. The registered office of the Corporation shall be at the
place within Canada from time to time specified in the articles and at such
location therein as the board may from time to time determine.
2.02 CORPORATE SEAL. Until changed by the board, the corporate seal of the
Corporation shall be in the form impressed hereon.
2.03 FINANCIAL YEAR. Until changed by the board, the financial year of the
Corporation shall end on the last day of in each year.
2.04 EXECUTION OF INSTRUMENTS. Deeds, transfers, assignments, contracts,
obligations, certificates and other instruments may be signed on behalf of the
Corporation by two persons, one of whom holds the office of chairman and the
board, managing director, president, vice-president or director and the other of
whom holds one of the said offices or the office of secretary, treasurer,
assistant secretary or assistant treasurer or any other office created by bylaw
or by the board. In addition, the board or the said two persons may from time to
time direct the manner in which and the person or persons by whom any particular
instrument or class of instruments may or shall be signed. Any signing officer
may affix the corporate seal to any instrument requiring the same.
2.05 BANKING ARRANGEMENTS. The banking business of the Corporation including,
without limitation, the borrowing of money and the giving of security therefor,
shall be transacted with such banks, trust companies or other bodies corporate
or organizations as may from time to time be designated by or under the
authority of the board. Such banking business or any part thereof shall be
transacted under such agreements, instructions and delegations of powers as the
board may from time to time prescribe.
2.06 VOTING RIGHTS IN OTHER BODIES CORPORATE. The signing officers of the
Corporation may execute and deliver proxies and arrange for the issuance of
voting certificates or other evidence of the right to exercise the voting rights
attaching to any securities held by the Corporation. Such instruments shall be
in favor of such persons as may be determined by the officers executing or
arranging for the same. In addition, the board may from time to time direct the
manner in which
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and the persons by whom any particular voting rights or class of voting rights
may or shall be exercised.
2.07 DIVISIONS. The board may cause the business and operations of the
Corporation or any part thereof to be divided into one or more divisions on such
basis including, without limitation, types of business or operations,
geographical territories, product lines or goods or services as the board may
consider appropriate in each case. From time to time the board or, if authorized
by the board, the chief executive officer may authorize, on such basis as may be
considered appropriate in each case:
(c) SUBDIVISION AND CONSOLIDATION. The further division of the
business and operations of any such division into sub-units
and the consolidation of the business and operations of any
such divisions and sub-units;
(b) NAME. The designation of any such division or sub-unit by, and
the carrying on of the business and operations of any such
division or sub-unit under, a name other than the name of the
Corporation; provided that the Corporation shall set out its
name in legible characters in all contracts, invoices,
negotiable instruments and orders for goods or services issued
or made by or on behalf of the Corporation; and
(c) OFFICERS. The appointment of officers for any such division or
sub-unit,
the determination of their powers and duties, and the removal
of any such officer so appointed without prejudice to such
officer's rights under any employment contract or in law,
provided that any such officers shall not, as such, be
officers of the Corporation.
3.00 BORROWING AND SECURITIES
3.01 Borrowing Power. Without limiting the borrowing powers of the Corporation
as set forth in the Act, but subject to the articles and any unanimous
shareholder agreement, the board may from time to time on behalf of the
Corporation, without authorization of the shareholders:
(a) borrow money on the credit of the Corporation;
(b) issue, reissue, sell or pledge bonds, debentures, notes or
other evidences of indebtedness or guarantee of the
Corporation, whether secured or unsecured;
(c) to the extent permitted by the Act, give a guarantee on behalf
of the Corporation to secure performance of any present or
future indebtedness, liability or obligation of any person;
and
(d) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any currently owned or subsequently
acquired real or personal, movable or immovable, property of
the Corporation including book debts, rights, powers,
franchises and undertakings, to secure any such bonds,
debentures, notes or other
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evidences of indebtedness or guarantee or any other present or
future indebtedness, or guarantee or any other present or
future indebtedness, liability or obligation of the
Corporation.
Nothing in this section limits or restricts the borrowing of money by the
Corporation on bills of exchange or promissory notes made, drawn, accepted or
endorsed by or on behalf of the Corporation.
3.02 DELEGATION. The board may from time to time delegate to a committee of the
board, a director or an officer of the Corporation or any other person as may be
designated by the board all or any of the powers conferred on the board by
section 3.01 or by the Act to such extent and in such manner as the board may
determine at the time of such delegation.
4.00 DIRECTORS
4.01 NUMBER OF DIRECTORS. Until changed in accordance with the Act, the board
shall consist of not fewer than the minimum number and not more than the maximum
number of directors provided in the articles.
4.02 QUALIFICATION. No person shall be qualified for election as a director if
he is less than 18 years of age; if he is of unsound mind and has been so found
by a court in Canada or elsewhere; if he is not an individual; or if he has the
status of a bankrupt. A director need not be a shareholder. A majority of the
directors shall be resident Canadians.
4.03 ELECTION AND TERM. The election of directors shall take place at each
annual meeting of shareholders and all the directors then in office shall retire
but, if qualified, shall be eligible for re-election. The number of directors to
be elected at any such meeting shall be the number of directors then in office,
unless the directors or the shareholders other-wise determine. Where the
shareholders adopt an amendment to the articles to increase the number or
minimum number of directors, the shareholders may, at the meeting at which they
adopt the amendment, elect the additional number of directors authorized by the
amendment. The election shall be by resolution. If an election of directors is
not held at the proper time, the incumbent directors shall continue in office
until their successors are elected.
4.04 REMOVAL OF DIRECTORS. Subject to the Act, the shareholders may by
resolution passed at a meeting specially called for that purpose remove any
director from office and the vacancy created by the removal may be filled at the
same meeting, failing which it may be filled by the board.
4.05 VACATION OF OFFICE. A director ceases to hold office when he dies; he is
removed from office by the shareholders; he ceases to be qualified for election
as a director; or his written resignation is sent or delivered to the
Corporation, or, if a time is specified in the resignation, at the time so
specified, whichever is later.
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4.06 VACANCIES. Subject to the Act, a quorum of the board may fill a vacancy in
the board, except a vacancy resulting from an increase in the number or minimum
number of directors or from a failure of the shareholders to elect the number or
minimum number of directors.
4.07 ACTION BY THE BOARD. Subject to any unanimous shareholder agreement, the
board shall manage the business and affairs of the Corporation. The powers of
the board may be exercised at a meeting (subject to section 4.08 and 4.09) at
which a quorum is present or by resolution in writing signed by all the
directors entitled to vote on that resolution at a meeting of the board. Where
there is a vacancy in the board, the remaining directors may exercise all the
powers of the board so long, as a quorum remains in office. Where the
Corporation has only one director, that director may constitute a meeting.
4.08 CANADIAN MAJORITY AT MEETINGS. The board shall not transact business at a
meeting, other than filling a vacancy in the board, unless a majority of the
directors present are resident Canadians, except where
(a) a resident Canadian director who is unable to be present
approves in writing or by telephone or other communications
facilities the business transacted at the meeting; and
(b) a majority of resident Canadians would have been present
had the director been present at the meeting.
4.09 Meeting by Telephone. If all the directors of the Corporation consent a
director may participate in a meeting of the board or of a committee of the
board by means of such telephone or other communications facilities as permit
all persons participating in the meeting to hear one another, and a director
participating in such a meeting by such means is deemed to be present at the
meeting. Any such consent shall be effective whether given before or after the
meeting to which it relates and may be given with respect to all meetings of the
board and of committees of the board.
4.10 Place of Meetings. Meetings of the board may be held at any place in or
outside of Canada.
4.11 CALLING OF MEETINGS. Meetings of the board shall be held from time to time
at such time and at such place as the board, the chairman of the board, the
managing director, the president or any two directors may determine.
4.12 NOTICE OF MEETING. Notice of the time and place of each meeting of the
board shall be given in the manner provided in section 11 to each director not
less than 48 hours before the time when the meeting, is to be held. A notice of
a meeting of directors need not specify the purpose of or the business to be
transacted at the meeting except where the Act requires the purpose or business
to be specified, including, if required by the Act, any proposal to:
(a) submit to the shareholders any question or matter
requiring approval of the shareholders;
(b) fill a vacancy among the directors or in the office of
auditor;
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(c) issue securities;
(d) declare dividends;
(e) purchase, redeem or otherwise acquire shares issued by the
Corporation;
(f) pay a commission for the sale of shares;
(g) approve a management proxy circular;
(h) approve a take-over bid circular or directors' circular;
approve any annual financial statements; or adopt, amend or
repeal by-laws.
4.13 FIRST MEETING OF NEW BOARD. Provided a quorum of directors is present, each
newly elected board may without notice hold its first meeting immediately
following the meeting of shareholders at which such board is elected. 4.14
ADJOURNED MEETING. Notice of an adjourned meeting of the board is not required
if the time and place of the adjourned meeting are announced at the original
meeting.
4.15 REGULAR MEETINGS. The board may appoint a day or days in any month or
months for regular meetings of the board at a place and hour to be named. A copy
of any resolution of the board fixing the place and time of such regular
meetings shall be sent to each director forthwith after being passed, but no
other notice shall be required for any such regular meeting except where the Act
requires the purpose thereof or the business to be transacted thereat to be
specified.
4.16 CHAIRMAN. The chairman of any meeting of the board shall be the first
mentioned of such of the following officers as have been appointed and who is a
director and is present at the meeting; chairman of the board, managing director
or president. If no such officer is present, the directors present shall choose
one of their number to be chairman.
4.17 QUORUM. Subject to section 4.08, the quorum for the transaction of business
at any meeting of the board shall consist of two-fifths (2/5) of the number of
directors from time to time or such greater number of directors as the board may
from time to time determine.
4.18 VOTES TO GOVERN. At all meetings of the board every question shall be
decided by a majority of the votes cast on the question. In case of an equality
of votes the chairman of the meeting shall be entitled to a second or casting
vote.
4.19 CONFLICT OF INTEREST. A director or officer who is a party to, or who is a
director or officer of or has a material interest in any person who is a
director or officer of or has a material interest in any person who is a party
to, a material contract or proposed material contract with the Corporation shall
disclose the nature and extent of his interest at the time and in the manner
provided by the Act. Any such contract or proposed contract shall be referred to
the board or shareholders for approval even if such contract is one that in the
ordinary course of the Corporation's business would not require approval by the
board or shareholders. Such a director shall not vote on any resolution to
approve the same except as provided by the Act.
4.20 REMUNERATION AND EXPENSES. Subject to any unanimous shareholder agreement,
the directors shall be paid such remuneration for their services as the board
may from time to time
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determine. The directors shall also be entitled to be reimbursed for travelling
and other expenses properly incurred by them in attending meetings of the board
or any committee thereof. Nothing herein contained shall preclude any director
from serving the Corporation in any other capacity and receiving remuneration
therefor.
5.00 COMMITTEES
5.01 COMMITTEES OF THE BOARD. The board may appoint one or more committees of
the board, however designated, and delegate to any such committee any of the
powers of the board except those which pertain to items which, under the Act, a
committee of the board has no authority to exercise. A majority of the members
of any such committee shall be resident Canadians.
5.02 TRANSACTION OF BUSINESS. Subject to the provisions of section 4.09, the
powers of a committee of the board may be exercised by a meeting at which a
quorum is present or by resolution in writing signed by all members of such
committee who would have been entitled to vote on that resolution at a meeting
of the committee. Meetings of such committee may be held at any place in or
outside of Canada.
5.03 ADVISORY BODIES. The board may from time to time appoint such advisory
bodies as it may deem advisable.
5.04 PROCEDURE. Unless otherwise determined by the board, each committee and
advisory body shall have power to fix its quorum at not less than a majority of
its members, to elect its chairman and to regulate its procedure.
6.00 OFFICERS
6.01 APPOINTMENT. Subject to any unanimous shareholder agreement, the board may
from time to time appoint a president, one or more vice-presidents (to which
title may be added words indicating seniority or function), a secretary, a
treasurer and such other officers as the board may determine, including one or
more assistants to any of the officers so appointed. The board may specify the
duties of and, in accordance with this by-law and subject to the Act, delegate
to such officers powers to manage the business and affairs of the Corporation.
Subject to sections 6.02 and 6.03, an officer may but need not be a director and
one person may hold more than one office.
6.02 CHAIRMAN OF THE BOARD. The board may from time to time also appoint a
chairman of the board who shall be a director. If one is appointed, the board
may assign to him any of the powers and duties that are by any provisions of
this by-law assigned to the managing director or to the president; and he shall
have such other powers and duties as the board may specify.
6.03 MANAGING DIRECTOR. The board may from time to time also appoint a managing
director who shall be a resident Canadian and a director. If appointed, he shall
be the chief executive officer and, subject to the authority of the board, shall
have general supervision of the business and affairs of the Corporation; and he
shall have such other powers and duties as the board may specify. During the
absence or disability of the president, or if no president has been appointed,
the managing director shall also have the powers and duties of that office.
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6.04 PRESIDENT. The president shall be the chief operating officer and, subject
to the authority of the board, shall have general supervision of the business of
the Corporation; and shall have such other powers and duties as the board may
specify. During the absence or disability of the managing director, or if no
managing director has been appointed, the president shall also have the powers
and duties of that office.
6.05 VICE-PRESIDENT. A vice-president shall have such powers and duties as the
board or the chief executive officer may specify.
6.06 SECRETARY. The secretary shall attend and be the secretary of all meetings
of the board, shareholders and committees of the board and shall enter or cause
to be entered in records kept for that purpose minutes of all proceedings
thereat; he shall give cause to be given, as and when instructed, all notices to
shareholders, directors, officers, auditors and members of committees of the
board; he shall be the custodian of the stamp or mechanical device generally
used for affixing the corporate seal of the Corporation and of all books,
papers, records, documents and instruments belonging to the Corporation, except
when some other officer or agent has been appointed for that purpose; and he
shall have such other powers and duties as the board or the chief executive
officer may specify.
6.07 TREASURER. The treasurer shall keep proper accounting records in compliance
with the Act and shall be responsible for the deposit of money, the safekeeping
of securities and the disbursement of the funds of the Corporation; he shall
render to the board whenever required an account of all his transactions as
treasurer and of the financial position of the Corporation; and he shall have
such other powers and duties as the board or the chief executive officer may
specify.
6.08 POWERS AND DUTIES OF OTHER OFFICERS. The powers and duties of all other
officers shall be such as the terms of their engagement call for or as the board
or the chief executive officer may specify. Any of the powers and duties of an
officer to whom an assistant has been appointed may be exercised and performed
by such assistant, unless the board or the chief executive officer otherwise
directs.
6.09 VARIATION OF POWERS AND DUTIES. The board may from time to time and subject
to the provisions of the Act, vary, add to or limit the powers and duties of any
officer.
6.10 TERM OF OFFICE. The board, in its discretion, may remove any officer of the
Corporation, without prejudice to such officer's rights under an employment
contractor in law. Otherwise each officer appointed, or until his earlier
resignation.
6.11 CONFLICT OF INTEREST. An officer shall disclose his interest in any
material contract or proposed material contract with the Corporation in
accordance with section 4.19.
6.12 AGENTS AND ATTORNEYS. The Corporation, by or under the authority of the
board, shall have power from time to time to appoint agents or attorneys for the
Corporation in or outside Canada with such powers (including the power to
sub-delegate) of management, administration or otherwise as may be thought fit.
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7.00 PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 LIMITATION OF LIABILITY. Every director and officer of the Corporation in
exercising his powers and discharging his duties shall act honestly and in good
faith with a view to the best interests of the Corporation and exercise the
care, diligence and skill that a reasonably prudent person would exercise in
comparable circumstances. Subject to the foregoing, no director or officer shall
be liable for the acts, receipts, neglects or defaults of any other director,
officer or employee, or for joining in any receipt or other act for conformity,
or for any loss, damage or expense happening to the Corporation through the
insufficiency or deficiency of title to any property acquired for or on behalf
of the Corporation, or for the insufficiency or deficiency of any security in or
on which any of the moneys of the Corporation shall be invested, or for any loss
or damage arising from the bankruptcy, insolvency or tortious acts of any person
with whom any of the moneys, securities or effects of the Corporation shall be
deposited, or for any loss occasioned by any error of judgment or oversight on
his part, or for any other loss, damage or misfortune which shall happen in the
execution of the duties of his office or in relation thereto; provided that
nothing herein shall relieve any director or officer from the duty to act in
accordance with the Act and the regulations thereunder or from liability for any
breach thereof.
7.02 INDEMNITY. Subject to the Act, the Corporation shall indemnify a director
or officer, a former director or officer, or a person who acts or acted at the
Corporation's request as a director or officer of a body corporate of which the
Corporation is or was a shareholder or creditor, and his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative active or proceeding to which
he is made a party by reason of being or having been a director or officer of
the Corporation or such body corporate, if
(a) he acted honestly and in good faith with a view to the
best interests of the Corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
The Corporation shall also indemnify such person in such other circumstances as
the Act permits or requires. Nothing in this by-law shall limit the right of any
person entitled to indemnity to claim indemnity apart from the provisions of
this by-law.
7.03 INSURANCE. Subject to the Act, the Corporation may purchase and maintain
insurance for the benefit of any person referred to in section 7.02 against any
liability incurred by him in his capacity as a director or officer of the
Corporation or of another body corporate where he acts or acted in that capacity
at the Corporation's request.
8.00 SHARES
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8.01 ALLOTMENT OF SHARES. Subject to the Act, the articles and any unanimous
shareholder agreement, the board may from time to time allot or grant options to
purchase the whole or any part of the authorized and unissued shares of the
Corporation at such times and to such persons and for such consideration as the
board shall determine, provided that no share shall be issued until it is fully
paid as provided by the Act.
8.02 COMMISSIONS. The board may from time to time authorize the Corporation
to pay a reasonable commission to any person in consideration of his
purchasing or agreeing to purchase shares of the Corporation, whether from
the Corporation or from any other person, or procuring or agreeing to procure
purchasers for any such shares.
8.03 REGISTRATION OF TRANSFER. Subject to the Act, no transfer of a share shall
be registered in a securities register except on presentation of the certificate
representing such share with an endorsement which complies with the Act made
thereon or delivered therewith duly executed by an appropriate person as
provided by the Act, together with such reasonable assurance that the
endorsement is genuine and effective as the board may from time to time
prescribe, on payment of all applicable taxes and any reasonable fees prescribed
by the board, on compliance with such restrictions on transfer as are authorized
by the articles and on satisfaction of any lien referred to in section 8. 10.
8.04 TRANSFER AGENTS AND REGISTRARS. The board may from time to time appoint one
or more agents to maintain, in respect of each class of shares of the
Corporation issued by it, a central securities register and one or more branch
securities registers. Such a person may be designated as transfer agent or
registrar according to his functions and one person may be designated both
registrar and transfer agent. The board may at any time terminate such
appointment.
8.05 NON-RECOGNITION OF TRUSTS. Subject to the Act, the Corporation may treat
the registered holder of any share as the person exclusively entitled to vote,
to receive notices, to receive any dividend or other payments in respect of the
share, and otherwise to exercise all the rights and powers of an owner of the
share.
8.06 SHARE CERTIFICATES. Every holder of one or more shares of the Corporation
shall be entitled, at his option, to a share certificate, or to a
non-transferable written certificate of acknowledgement of his right to obtain a
share certificate, stating the number and class or series of shares held by him
as shown on the securities register. Such certificates shall be in such form as
the board may from time to time approve. Any such certificate shall be signed in
accordance with section 2.04 and need not be under the corporate seal; provided
that, unless the board otherwise determines, certificates in respect of which a
transfer agent and/or registrar has been appointed shall not be valid unless
countersigned by or on behalf of such transfer agent and/or registrar. The
signature of one of the signing officers or, in the case of a certificate which
is not valid unless countersigned by or on behalf of a transfer agent and/or
registrar, and in the case of a certificate which does not require a manual
signature under the Act, the signatures of both signing officers may be printed
or mechanically reproduced in facsimile thereon. Every such facsimile signature
shall for all purposes be deemed to be the signature of the officer whose
signature it reproduces and shall be binding on the Corporation. A certificate
executed as aforesaid shall be valid notwithstanding that one or both of the
officers whose facsimile signature appears thereon no longer holds office at the
date of issue of the certificate.
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8.07 REPLACEMENT OF SHARE CERTIFICATES. The board or any officer or agent
designated by the board may in its or his discretion direct the issue of a new
share or other such certificate in lieu of and on cancellation of a certificate
that has been mutilated, or in substitution for a certificate claimed to have
been lost, destroyed or wrongfully taken, on payment of such reasonable fee and
on such terms as to indemnity, reimbursement of expenses and evidence of loss
and of title as the board may from time to time prescribe, whether generally or
in any particular case.
8.08 JOINT HOLDERS. If two or more persons are registered as joint holders of
any share, the Corporation shall not be bound to issue more than one certificate
in respect thereof, and delivery of such certificate to one of such persons
shall be sufficient delivery to all of them. Any one of such persons may give
effectual receipts for the certificate issued in respect thereof or for any
dividend, bonus, return of capital or other money payable or warrant issuable in
respect of such share.
8.09 DECEASED SHAREHOLDERS. In the event of the death of a holder, or of one of
the joint holders, of any share, the Corporation shall not be required to make
any entry in the securities register in respect thereof or to make any dividend
or other payments in respect thereof except on production of all such documents
as may be required by law and on compliance with the reasonable requirements of
the Corporation and its transfer agents.
8.10 LIEN FOR INDEBTEDNESS. If the articles provide that the Corporation shall
have a lien on shares registered in the name of a shareholder indebted to the
Corporation, such lien may be enforced, subject to the articles and to any
unanimous shareholder agreement, by the sale of the shares thereby affected or
by any other action, suit, remedy or proceeding authorized or permitted by law
or by equity and, pending such enforcement, the Corporation may refuse to
register a transfer of the whole or any part of such shares.
9.00 DIVIDENDS AND RIGHTS
9.01 DIVIDENDS. Subject to the Act, the board may from time to time declare
dividends payable to the shareholders according to respective rights and
interest in the Corporation. dividends be paid in money or property or by the
issue of fully paid shares of the Corporation.
9.02 DIVIDEND CHEQUES. A dividend payable in money shall be paid by cheque to
the order of each registered holder of shares of the class or series in respect
of which it has been declared, and mailed by prepaid ordinary mail to such
registered holder at his recorded address, unless such holder otherwise directs.
In the case of joint holders the cheque shall, unless such joint holders
otherwise direct, be made payable to the order of all of such joint holders and
mailed to them at their recorded address. The mailing of such cheque as
aforesaid, unless the same is not paid on due presentation, shall satisfy and
discharge the liability for the dividend to the extent of the sum represented
thereby plus the amount of any tax which the Corporation is required to and does
not withhold.
9.03 NON-RECEIPT OF CHEQUES. In the event of non-receipt of any dividend cheque
by the person to whom it is sent as aforesaid, the Corporation shall issue to
such person a replacement cheque for a like amount on such terms as to
indemnity, reimbursement of expenses and
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evidence of non-receipt and of tide as the board may from time to time
prescribe, whether generally or in any particular case.
9.04 RECORD DATE FOR DIVIDENDS AND RIGHTS. The board may fix in advance a date,
preceding by not more than 50 days the date for the payment of any dividend or
the date for the issue of any warrant or other evidence of the right to
subscribe for securities of the Corporation, as a record date for the
determination of the persons entitled to receive payment of such dividend or to
exercise the right to subscribe for such securities, and notice of any such
record date shall be given not less than 7 days before such record date in the
manner provided by the Act. If no record date is so fixed, the record date for
the determination of the persons entitled to receive payment of any dividend or
to exercise the right to subscribe for securities of the Corporation shall be at
the close of business on the day on which the resolution relating to such
dividend or right to subscribe is passed by the board.
9.05 UNCLAIMED DIVIDENDS. Any dividend unclaimed after a period of 6 years from
the date on which the same has been declared to be payable shall be forfeited
and shall revert to the Corporation.
10.00 MEETINGS OF SHAREHOLDERS
10.01 ANNUAL MEETINGS. The annual meeting of shareholders shall be held at such
time in each year and, subject to section 10.03, at such place as the board, the
chairman of the board, the managing director or the president may from time to
time determine, for the purpose of considering the financial statements and
reports required by the Act to be placed before the annual meeting, of electing
directors, and of appointing an auditor, and for the transaction of such other
business as may properly be brought before the meeting.
10.02 SPECIAL MEETINGS. The board, the chairman of the board, the managing
director or the president shall have power to call a special meeting- of
shareholders at any time.
10.03 PLACE OF MEETINGS. Meetings of shareholders shall be held at the
registered office of the Corporation or elsewhere in the municipality in which
the registered office is situate or, if the board shall so determine, at such
other place in Canada or, if all the shareholders entitled to vote at the
meeting so agree, at some place outside Canada.
10.04 NOTICE OF MEETINGS. Notice of the time and place of each meeting of
shareholders shall be given in the manner provided in section 11 not less than
21 nor more than 50 days before the date of the meeting to each director, to the
auditor, and to each shareholder who at the close of business on the record date
for notice is entered in the securities register as the holder of one or more
shares carrying the right to vote at the meeting. Notice of a meeting of
shareholders called for any purpose other than consideration of the financial
statements and auditor's report, election of directors and reappointment of the
incumbent auditor shall state the nature of such business in sufficient detail
to permit the shareholder to form a reasoned judgment thereon and shall set out
the text of any special resolution to be submitted to the meeting.
10.05 LIST OF SHAREHOLDERS ENTITLED TO NOTICE. For every meeting of
shareholders, the Corporation shall prepare a list of shareholders entitled to
receive notice of the meeting, arranged
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in alphabetical order and showing the number of shares held by each shareholder
entitled to vote at the meeting. If a record date for the meeting is fixed
pursuant to section 10.06, the shareholders listed shall be those registered at
the close of business on such record date. If no record date is fixed, the
shareholders listed shall be those registered at the close of business on the
day immediately preceding the day on which notice of the meeting is given or,
where no such notice is given, on the day on which the meeting is held. The list
shall be available for examination by any shareholder during usual business
hours at the registered office of the Corporation or at the place where the
central securities register is maintained and at the meeting for which the list
was prepared. Where a separate list of shareholders has not been prepared, the
names of persons appearing in the securities register at the requisite time as
the holder of one or more shares carrying the right to vote at the meeting shall
be deemed to be a list of shareholders.
10.06 RECORD DATE FOR NOTICE. The board may fix in advance a date, preceding the
date of any meeting of shareholders by not more than 50 days and not less than
21 days, as a record date for the determination of the shareholders entitled to
notice of the meeting, and notice of any such record date shall be given not
less than 7 days before the record date, by newspaper advertisement in the
manner provided in the Act. If no record date is so fixed, the record date for
the determination of the shareholders entitled to receive notice of the meeting
shall be at the close of business on the day immediately preceding the day on
which the notice is given or, if no notice is given, the day on which the
meeting is held.
10.07 MEETINGS WITHOUT NOTICE. A meeting of shareholders may be held without
notice at any time and place permitted by the Act(a) if all the shareholders
entitled to vote at the meeting are present in person or duly represented or if
those not present or represented waive notice of or other-wise consent to the
meeting being held, and (b) if the auditors and the directors are present or
waive notice of or otherwise consent to the meeting being held, so long as the
shareholders, auditors or directors present are not attending for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called. At such a meeting any business may be transacted
which the Corporation may transact at a meeting of shareholders. If the meeting
is held at a place outside Canada, shareholders not present or duly represented,
but who have waived notice of or otherwise consented to the meeting, shall also
be deemed to have consented to the meeting being held at that place.
10.08 CHAIRMAN, SECRETARY AND SCRUTINEERS. The chairman of any meeting of
shareholders shall be the first mentioned of such of the following officers as
have been appointed and who is present at the meeting: managing director,
president, chair-man of the board, or a vice-president who is a shareholder. If
no such officer is present within 15 minutes from the time fixed for holding the
meeting, the persons present and entitled to vote shall choose one of their
number to be chairman. If the secretary of the Corporation is absent, the
chairman shall appoint some person, who need not be a shareholder, to act as
secretary of the meeting. If desired, one or more scrutineers, who need not be
shareholders, may be appointed by a resolution or by the chairman with the
consent of the meeting.
10.09 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to be present at
a meeting of shareholders shall be those entitled to vote at the meeting, the
directors and auditor of the Corporation and others who, although not entitled
to vote, are entitled or required under any
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provision of the Act or the articles or by-laws to be present at the meeting.
Any other person may be admitted only on the invitation of the chairman of the
meeting or with the consent of the meeting.
10.10 QUORUM. Subject to the Act, a quorum for the transaction of business at
any meeting of shareholders shall be two persons present in person, each being a
shareholder entitled to vote at the meeting or a duly appointed proxyholder or
representative for a shareholder so entitled. If a quorum is present at the
opening of any meeting of shareholders, the shareholders present or represented
may proceed with the business of the meeting even though a quorum is not present
throughout the meeting. If a quorum is not present at the opening of any meeting
of shareholders, the shareholders present or represented may adjourn the meeting
to a fixed time and place but may not transact any other business. If there is
only one shareholder the quorum shall be one person.
10.11 RIGHT TO VOTE. Every person named in the list referred to in section 10.05
shall be entitled to vote the shares shown opposite his name at the meeting to
which the list relates, except to the extent that (a) where the Corporation has
fixed a record date in respect of the meeting, the person has transferred any of
his shares after the record date or, where the Corporation has not fixed a
record date in respect of the meeting, the person has transferred any of his
shares after the date on which the list is prepared, and (b) the transferee,
having produced properly endorsed certificates evidencing the shares or having
otherwise established that he owns the shares, has demanded not later than 10
days before the meeting that his name be included in the list. In any such
excepted case the transferee shall be entitled to vote the transferred shares at
the meeting.
10.12 PROXYHOLDERS AND REPRESENTATIVES. Every shareholder entitled to vote at a
meeting of shareholders may appoint a proxy-holder, or one or more alternate
proxyholders, to attend and act as his representative at the meeting in the
manner and to the extent authorized and with the authority conferred by the
proxy. A proxy shall be in writing executed by the shareholder or his attorney
and shall conform with the requirements of the Act.
Alternatively, every such shareholder which is a body corporate or association
may authorize by resolution of its directors or governing body an individual to
represent it at a meeting of shareholders and that individual may exercise on
the shareholder's behalf all the powers it could exercise if it were an
individual shareholder. The authority of such an individual shall be established
by the deposit with the Corporation of a certified copy of the resolution, or in
such other manner as may be satisfactory to the secretary of the Corporation or
the chairman of the meeting. Any such proxyholder or representative need not be
a shareholder.
10.13 TIME FOR DEPOSIT OF PROXIES. The board may specify in a notice calling a
meeting of shareholders a time, preceding the time of the meeting by not more
than 48 hours exclusive of non-business days, before which time proxies to be
used at the meeting must be deposited. A proxy shall be acted on only if, before
the time so specified, it has been deposited with the Corporation or an agent
specified in the notice or if, no such time having been specified in the notice,
it has been received by the secretary of the Corporation or by the chairman of
the meeting or any adjournment before the time of voting.
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10.14 JOINT SHAREHOLDERS. If two or more persons hold shares jointly, any one of
them present in person or duly represented at a meeting of shareholders may, in
the absence of the other or others, vote the shares; but if two or more of those
persons are present in person or represented and vote, they shall vote as one
the shares jointly held by them.
10.15 VOTES TO GOVERN. At any meeting of shareholders every question shall,
unless otherwise required by he articles or by-laws or by-law, be determined by
a majority of the votes cast on the question. In case of an equality of votes
either on a show of hands or on a poll, the chairman of the meeting shall be
entitled to a second or casting vote.
10.16 SHOW OF HANDS. Subject to the Act, any question at a meeting of
shareholders shall be decided by a show of hands, unless a ballot thereon is
required or demanded as hereinafter provided. On a show of hands every person
who is present and entitled to vote shall have one vote. Whenever a vote by show
of hands shall have been taken on a question, unless a ballot thereon is so
required or demanded, a declaration by the chairman of the meeting that the vote
on the question has been carried or carried by a particular majority or not
carried, and an entry to that effect in the minutes of the meeting, shall be
prima facie evidence of the fact without proof of the number or proportion of
the votes recorded in favor of or against any resolution or other proceeding in
respect of the said question, and the result of the vote so taken shall be the
decision of the shareholders on the said question.
10.17 BALLOTS. On any question proposed for consideration at a meeting of
shareholders, and whether or not a show of hands has been taken thereon, the
chairman may require a ballot, or any person who is present and entitled to vote
on such question at the meeting may demand a ballot. A ballot so required or
demanded shall be taken in such manner as the chairman shall direct. A
requirement or demand for a ballot may be withdrawn at any time prior to the
taking of the ballot. If a ballot is taken each person present shall be
entitled, in respect of the shares which he is entitled to vote at the meeting
on the question, to that number of votes provided by the Act or the articles,
and the result of the ballot so taken shall be the decision of the shareholders
on the said question.
10.18 ADJOURNMENT. The Chairman at a meeting of shareholders may, with the
consent of the meeting and subject to such conditions as the meeting may decide,
adjourn the meeting from time to time and from place to place. If a meeting of
shareholders is adjourned for less than 30 days, it shall not be necessary to
give notice of the adjourned meeting, other than by announcement at the earliest
meeting that is adjourned. Subject to the Act, if a meeting of shareholders is
adjourned by one or more adjournments for an aggregate of 30 days or more,
notice of the adjourned meeting shall be given as for an original meeting.
10.19 RESOLUTION IN WRITING. A resolution in writing signed by all the
shareholders entitled to vote on that resolution at a meeting of shareholders is
as valid as if it had been passed at a meeting of the shareholders, unless a
written statement with respect to the subject matter of the resolution is
submitted by a director or the auditor in accordance with the Act.
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10.20 ONLY ONE SHAREHOLDER. Where the Corporation has only one shareholder or
only one holder of any class of shares, the shareholder present in person or
duly represented constitutes a meeting.
11.00 NOTICES
11.01 Method of Giving Notices. Any notice (which term includes any
communication or document) to be given (which term includes sent, delivered or
served) pursuant to the Act, the regulations thereunder, the articles, the
by-laws or otherwise to a shareholder, director, officer auditor or member of a
committee of the board shall be sufficiently given if delivered personally to
the person to whom it is to be given or if delivered to his recorded address or
if mailed to him at his recorded address by prepaid ordinary or air mail or if
sent to him at his recorded address by any means of prepaid transmitted or
recorded communication. A notice so delivered shall be deemed to have been given
when it is delivered personally or to the recorded address as aforesaid; a
notice so mailed shall be deemed to have been given when deposited in a post
office or public letter box; and a notice so sent by any means of transmitted or
recorded communication shall be deemed to have been given when dispatched or
delivered to the appropriate communication company or agency or its
representative for dispatch. The secretary may change or cause to be changed the
recorded address of any shareholder, director, officer, auditor or member of a
committee of the board in accordance with any information believed by him to be
reliable.
11.02 NOTICE TO JOINT SHAREHOLDERS. If two or more persons are registered as
joint holders of any share, any notice may be addressed to all of such joint
holders but notice addressed to one of such persons shall be sufficient notice
to all of them.
11.03 COMPUTATION OF TIME. In computing the date when notice must be given under
any provision requiring a specified number of days' notice of any meeting or
other event, the date of giving the notice shall be excluded and the date of the
meeting or other event shall be included.
11.04 UNDELIVERED NOTICES. If any notice given to a shareholder pursuant to
section 11.01 is returned on three consecutive occasions because he cannot be
found, the Corporation shall not be required to give any further notices to such
shareholder until he informs the Corporation in writing of his new address.
11.05 OMISSIONS AND ERRORS. The accidental omission to give any notice to any
shareholder, director, officer, auditor or member of a committee of the board or
the non-receipt of any notice by any such person or any error in any notice not
affecting the substance thereof shall not invalidate any action taken at any
meeting held pursuant to such notice or otherwise founded thereon.
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11.06 PERSONS ENTITLED BY DEATH OR OPERATION OF LAW. Every person who, by
operation of law, transfer, death of a shareholder or any other means
whatsoever, shall become entitled to any share shall be bound by every notice in
respect of such share which shall have been duly given to the shareholder from
which he derives his title to such share prior to his name and address being
entered on the securities register (whether such notice was given before or
after the happening of the event on which he became so entitled) and prior to
his furnishing to the Corporation the proof of authority or evidence of his
entitlement prescribed by the Act.
11.07 WAIVER OF NOTICE. Any shareholder, proxyholder, other person entitled to
attend a meeting of shareholders, director, officer, auditor or member of a
committee of the board may at any time waive or abridge the time for any notice
required to be given to him under the Act, the regulations under the Act, the
articles, the by-laws or otherwise, and the waiver or abridgement, whether given
before or after the meeting or other of which notice is required to be given,
shall cure any default in the giving or in the time of the notice, as the case
may be. Any such waiver or abridgement shall be in writing, except a waiver of
notice of a meeting of shareholders or of the board or a committee of the board,
which may be given in any manner.
12.00 EFFECTIVE DATE
12.01 EFFECTIVE DATE. This by-law shall come into force when made by the board
in accordance with the Act.
12.02 REPEAL. All previous by-laws of the Corporation are repealed as of the
coming into force of this by-law. The repeal shall not affect the previous
operation of any by-law so repealed or affect the validity of any act done or
right, privilege, obligation or liability acquired or incurred under, or the
validity of any contract or agreement made pursuant to, or the validity of any
articles (as defined in the Act) or predecessor charter documents of the
Corporation obtained pursuant to, any such by-law prior to its repeal. All
officers and persons acting under any bylaw so repealed shall continue to act as
if appointed under the provisions of this by-law and all resolutions of the
shareholders or the board or a committee of the board with continuing effect
passed under any repealed by-law shall continue good and valid except to the
extent inconsistent with this by-law and until amended or repealed.
The foregoing resolutions are hereby passed by the sole director of the
Corporation pursuant to the Business Corporations Act, 1990, as evidenced by his
signature hereto.
ENACTED the 10th day of August, 1994.
/s/ PATRICK J. CUMMINGS
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PATRICK J. CUMMINS
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In lieu of confirmation at a general meeting of the Shareholders, we the
undersigned, being all of the Shareholders of the Corporation entitled to vote
at a meeting of Shareholders, hereby confirm in writing the above by-law
pursuant to the Business Corporations Act, 1990.
DATED the 10th day of August, 1994.
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BY-LAW NO. 2
PENSTAR WIRECOM, LTD.
A By-law respecting the borrowing of money and the issuing of securities by
PENSTAR WIRECOM, LTD. (herein called the "Corporation") BE IT ENACTED as a
By-law of the Corporation as follows:
1. Without limiting the borrowing powers of the Corporation as
set forth in the Business Corporations Act, Ontario (the "Act") the Directors of
the Corporation may, from time to time, without the authorization of the
Shareholders:
a) borrow money upon the credit of the Corporation;
b) issue, re-issue, sell or pledge debt obligations of the
Corporation, including without limitation, bonds,
debentures, notes or other similar obligations of the
Corporation whether secured or unsecured;
c) subject to the Act, give a guarantee on behalf of the
Corporation to secure performance of any present or
future indebtedness, liability or obligation of any
person; and
d) charge, mortgage, hypothecate, pledge or otherwise
create a security interest in all or any currently
owned or subsequently acquired, real or personal,
movable or immovable, property of the Corporation,
including without limitation, book debts, rights,
powers, franchises and undertakings, to secure any
present or future indebtedness, liabilities or other
obligations of the Corporation.
2. The Directors may, from time to time, by resolution delegate
any or all of the powers referred to in paragraph I of this By-law to a
Director, a Committee of Directors or one or more officers of the Corporation.
The foregoing by-law is hereby passed by the sole director of the Corporation
pursuant to the Business Corporations Act, as evidenced by his signature hereto.
ENACTED the 10th day of August, 1994.
/s/ PATRICK J. CUMMINGS
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PATRICK J. CUMMINS
21
BY-LAW NO. 2 (cont'd.)
PENSTAR WIRECOM, LTD.
In lieu of confirmation at a general meeting of the
Shareholders, we the undersigned, being all of the Shareholders of the
Corporation entitled to vote at a meeting of Shareholders, hereby confirm in
writing the above by-law pursuant to the Business Corporations Act, Ontario.
DATED the 10th day of August, 1994.
/s/ MURRAY R. NYE
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MURRAY R. NYE