EXHIBIT 3.2
BY-LAW NO. 1
A by-law relating generally to the transaction of the business
and affairs of Intercorp Excelle Inc.
CONTENTS
Section One - Interpretation
Section Two - Business of the Corporation
Section Three - Borrowing and Debt Obligations
Section Four - Directors
Section Five - Committees
Section Six - Officers
Section Seven - Protection of Directors, Officers and Others
Section Eight - Shares
Section Nine - Dividends and Rights
Section Ten - Meetings of Shareholders
Section Eleven - Notices
Section Twelve - Effective Date
BE IT ENACTED as a by-law of the Corporation as follows:
SECTION ONE
INTERPRETATION
1.01 DEFINITIONS. In the by-laws of the Corporation, unless the context
otherwise requires:
"Act" means the BUSINESS CORPORATIONS ACT, R.S.O. 1990 and any statute
that may be substituted therefor, as from time to time amended;
"appoint" includes "elect" and vice versa;
"articles" means the articles of incorporation of the Corporation
filed April 1, 1996, as from time to time amended, supplemented or
restated;
"board" means the board of directors of the Corporation and "director"
means a member of the board;
"by-laws" means this by-law and all other by-laws of the Corporation
from time to time in force and effect;
"Corporation" means the corporation incorporated by articles under
the Act and named Intercorp Excelle Inc.;
"meeting of shareholders" includes an annual or other general meeting
of shareholders and a special meeting of shareholders;
"non-business day" means Saturday, Sunday and any other day that is a
holiday as defined in the INTERPRETATION ACT, R.S.O. 1990, as from
time to time amended;
"recorded address" means in the case of a shareholder his address as
recorded in the register of shareholders; and in the case of joint
shareholders the address appearing in the register of shareholders in
respect of such joint holding or the first address so appearing if
there are more than one; and in the case of an officer, auditor or
member of a committee of the board, his latest address as recorded in
the records of the Corporation; and in the case of a director, his
latest address as recorded in the records of the Corporation or in the
most recent notice filed under the CORPORATIONS INFORMATION ACT,
R.S.O. 1990, as amended, whichever is more current;
"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;
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"special meeting of shareholders" includes a meeting of any class,
classes or series of shareholders and a special meeting of all
shareholders entitled to vote at an annual meeting of shareholders;
"unanimous shareholder agreement" means a written agreement among all
the shareholders of the Corporation or among all such shareholders and
one or more persons who are not shareholders, 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 or supervise the management of 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 imparting the singular number include the
plural and vice versa; words imparting the masculine gender include the feminine
and neuter genders; and words importing persons include individuals, bodies
corporate, partnerships, trusts and unincorporated organizations.
WHERE ANY PROVISION IN THESE BY-LAWS CONFLICTS WITH ANY PROVISION OF A UNANIMOUS
SHAREHOLDER AGREEMENT THE PROVISION OF SUCH UNANIMOUS SHAREHOLDER AGREEMENT
SHALL GOVERN.
SECTION TWO
BUSINESS OF THE CORPORATION
2.01 REGISTERED OFFICE. Until changed in accordance with the Act, the
registered office of the Corporation shall be in the municipality or geographic
township within Ontario initially specified in the articles and thereafter as
the shareholders may from time to time determine by special resolution and at
such location therein as the board may from time to time determine by ordinary
resolution.
2.02 CORPORATE SEAL. The Corporation may have one or more different seals,
which may be adopted or changed from time to time by resolution of the board.
Until changed by resolution of the board, the Corporation shall carry on
business without a seal.
2.03 FINANCIAL YEAR. The financial year of the Corporation shall end on
such date in each year as shall be determined from time to time by resolution of
the directors.
2.04 EXECUTION OF INSTRUMENTS. Subject to Section 2.05, deeds, transfers,
assignments, contracts, obligations, certificates and other instruments may be
signed on behalf of the Corporation by the President or Secretary of the
Corporation. The board may at any time, or from time to time, direct by
resolution the manner in which and the person or persons by whom any particular
instrument or class of instruments may or shall be signed. Any authorized
signing officer may affix the corporate seal of the Corporation, if any, to any
instrument requiring same.
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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, delegations, powers or
designations of authority to any one or more persons as the board may from time
to time prescribe or authorize.
2.06 VOTING RIGHTS IN OTHER BODIES CORPORATE. Any director or officer of
the Corporation may execute and deliver instruments of proxy 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, certificates or other evidence shall be in favour of such person or
persons as may be determined by the person or persons signing or arranging for
them. In addition, the board may from time to time direct the manner in which
and the person or 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 or segregated into one or more
divisions upon such basis, including without limitation, character or type 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, upon such basis as may be considered appropriate in each case:
(a) SUB-DIVISION 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 and 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, unless expressly designated as such.
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SECTION THREE
BORROWING AND DEBT OBLIGATIONS
3.01 BORROWING POWER. The board may from time to time, in such amounts and
on such terms as it deems expedient:
(a) borrow money on the credit of the Corporation;
(b) issue, reissue, sell or pledge bonds, debentures, notes or other
similar obligations, secured or unsecured, of the Corporation;
(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) 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 book debts, rights, powers, franchises and undertakings, to
secure any such bonds, debentures, notes or other evidences of
indebtedness or guarantee or any other present or future indebtedness,
liability or obligation of the Corporation.
3.02 DELEGATION. The board may from time to time delegate to such one or
more of the directors and officers of the Corporation as may be designated by
the board all or any of the powers conferred on the board by section 3.01 to
such extent and in such manner as the board shall determine at the time of each
such delegation.
SECTION FOUR
DIRECTORS
4.01 NUMBER OF DIRECTORS AND QUORUM. Subject to the articles, the board
shall consist of the number of directors specified in the articles. If the
articles provide for a minimum and maximum number of directors, the board shall
consist of the number of directors within such minimum and maximum determined
from time to time by a special resolution or, if the directors are empowered by
special resolution to determine the number by ordinary resolution, by a
resolution of the board, provided, however, that in the latter case the
directors may not, between meetings of shareholders, increase the number of
directors on the board to a total number greater than one and one-third times
the number of directors required to have been elected at the last annual meeting
of shareholders. A majority of the number of directors so specified or
determined shall constitute a quorum at any meeting of the board, but where the
board consists of fewer than three directors, all directors shall constitute a
quorum at any meeting of the board. A majority of the directors shall be
resident Canadians but where the Corporation
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has only one or two directors, that director, or one of the two directors, as
the case may be, shall be a resident Canadian.
4.02 QUALIFICATION. No person shall be qualified for election or
appointment as a director (i) if he is an undischarged bankrupt; (ii) if he is
mentally incompetent or incapable of managing his affairs; (iii) if he is not an
individual, or; (iv) if he is less than 18 years of age. A director need not be
a shareholder.
4.03 CONSENT. No election or appointment of a person as a director shall
be effective unless (a) he consents in writing to act as a director before his
election or appointment or within 10 days thereafter, or (b) he was present at
the meeting when he was elected or appointed and did not refuse at that meeting
to act as a director.
4.04 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 election may be by a
show of hands or by a resolution of the shareholders unless a poll is required
or demanded. If an election of directors is not held at the proper time, the
directors shall continue in office until their successors are elected.
4.05 REMOVAL OF DIRECTORS. Subject to the provisions of the Act, the
shareholders, by ordinary resolution of the shareholders at a meeting of
shareholders called for that purpose, may remove any director before the
expiration of his term of office and may elect any qualified person in his stead
for the remainder of his term.
4.06 VACATION OF OFFICE. The office of a director shall be immediately
vacated and shall be deemed to have been vacated upon the occurrence of any of
the following events: (a) if a receiving order is made against him or if he
makes an assignment under the Bankruptcy and Insolvency Act; (b) if an order is
made declaring him to be a mentally incompetent person or incapable of managing
his affairs; (c) if he shall be removed from office by resolution of the
shareholders as provided in section 4.05; or (d) if by notice in writing to the
Corporation he resigns his office and such resignation becomes effective in
accordance with its terms.
4.07 VACANCIES. If the number of directors is increased, the resulting
vacancies shall be filled at a meeting of shareholders duly called for that
purpose. Subject to the provisions of the Act, if a vacancy should otherwise
occur in the board, the remaining directors, if constituting a quorum, may
appoint a qualified person to fill the vacancy for the remainder of the term.
In the absence of a quorum the remaining directors shall forthwith call a
meeting of shareholders to fill the vacancy.
4.08 ACTION BY THE BOARD. The board shall manage or supervise the
management of the affairs and business of the Corporation. The powers of the
board may be exercised by a meeting at which a quorum of directors is present
and at which a majority of the directors present are resident Canadians or by
by-law or resolution consented to in accordance with the Act by the signatures
of all the directors then in office if constituting a quorum. Where all the
directors consent thereto, any director may participate in a meeting of the
board or of the
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executive committee by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and a director so participating in the meeting shall be deemed to be
present at that meeting. Where there is a vacancy or vacancies in the board,
the remaining directors may exercise all the powers of the board so long as a
quorum remains in office.
4.09 PLACE OF MEETINGS. Meetings of the board shall be held at the head
office of the Corporation or elsewhere in Ontario or, if the board so determines
or all absent directors consent, at some place outside Ontario, but in any
financial year of the Corporation a majority of the meetings of the board shall
be held in Canada.
4.10 MEETINGS BY TELEPHONE. Where all the directors have consented
thereto, any director may participate in a meeting of the board by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and a director
participating in a meeting pursuant to this section shall be deemed to be
present in person at the meeting. Any consent given hereunder shall be
effective whether given before or after the meeting to which it relates. If a
majority of the directors participating in a meeting held pursuant to this
section are then in Canada, the meeting shall be deemed to have been held in
Canada.
4.11 CALLING OF MEETINGS. Meetings of the board shall be held from time to
time at such place (subject to section 4.09) at such time and on such day as the
board, the chairman of the board, the president or any two directors may
determine. Notice of the time and place of every meeting so called shall be
given in the manner provided in Section Eleven to each director (a) not less
than 48 hours before the time when the meeting is to be held if the notice is
mailed, or (b) not less than 24 hours before the time when the meeting is to be
held if the notice is given personally or is delivered or is sent by any means
of transmitted or recorded communication; provided that no notice of a meeting
shall be necessary if all the directors in office are present or if those absent
waive notice of or otherwise consent to such meeting being held.
4.12 ATTENDANCE OF AUDITORS. The auditors of the Corporation, if any,
shall be entitled to attend and be heard at meetings of the board on matters
relating to their duties as auditors.
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 REGULAR MEETINGS. The board may appoint a day or days in any month or
months for regular meetings at a place and hour to be named. A copy of any
resolution of the board fixing the place and time of regular meetings of the
board shall be sent to each director forthwith after being passed, but no other
notice shall be required for any such regular meeting.
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4.15 CHAIRMAN. The chairman of the board, if such an officer has been
elected and is present, otherwise the president, or in his absence a
vice-president who is a director shall be chairman of any meeting of the board.
If no such officer is present, the directors present shall choose one of their
number to be chairman.
4.16 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 not be entitled to a second or
casting vote.
4.17 CONFLICT OF INTEREST. A director shall not be disqualified by reason
of his office from contracting with the Corporation or a subsidiary thereof.
Subject to the provisions of the Act, a director shall not by reason only of his
office be accountable to the Corporation or to its shareholders for any profit
or gain realized from a contract or transaction in which he has an interest, and
such contract or transaction shall not be voidable by reason only of such
interest, provided that, if a declaration and disclosure of such interest is
required by the Act, such declaration and disclosure shall have been made and,
if required by the Act, the director shall have refrained from voting as a
director on the contract or transaction and shall not have been counted in the
quorum.
4.18 REMUNERATION AND EXPENSES. Subject to any unanimous shareholder
agreement, the directors shall be paid such remuneration for their services as
directors as may from time to time be authorized by by-law confirmed at a
meeting of shareholders in accordance with the Act. 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.
SECTION FIVE
COMMITTEES
5.01 EXECUTIVE COMMITTEE. Whenever the board consists of more than
6 directors, the board may elect from among its number an executive committee to
be composed of not fewer than 3 directors, which committee may exercise all the
powers of the board. A majority of the members of the executive committee shall
be resident Canadians.
5.02 TRANSACTION OF BUSINESS. No business shall be transacted by the
executive committee except at a meeting of its members at which a quorum of the
committee is present and at which a majority of the members present are resident
Canadians. The provisions of sections 4.09 and 4.10 shall apply, with all
changes required by the context, to meetings of the executive committee.
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5.03 ADVISORY COMMITTEES. The board may from time to time elect or appoint
such other committees as it may deem advisable, but the functions of any such
other committees shall be advisory only.
5.04 PROCEDURE. Unless otherwise ordered by the board, each committee
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.
SECTION SIX
OFFICERS
6.01 ELECTION OR APPOINTMENT. Subject to any unanimous shareholder
agreement, from time to time the board shall elect or appoint a president and a
secretary, and may elect or appoint one or more vice-presidents (to which title
may be added words indicating seniority or function), a general manager, a
treasurer and such other officers as the board may determine, including one or
more assistants to any of the officers so elected or appointed. Subject to
section 6.02, the officers of the Corporation may but need not be directors and
one person may hold more than one office.
6.02 CHAIRMAN OF THE BOARD. From time to time the board may also elect or
appoint a chairman of the board who shall be a director. If so elected or
appointed, the chairman of the board shall, if present, preside at all meetings
of the board and, in the absence of the president, at all meetings of
shareholders and, unless otherwise determined at any such meeting, may also act
as secretary. In addition, the board may assign to him any of the powers and
duties that are by any provisions of this by-law assigned to the president, and
he shall have such other powers and duties as the board may prescribe. During
the absence or disability of the chairman of the board, the president shall
assume all his powers and duties.
6.03 MANAGING DIRECTOR. From time to time the board may 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, subject to the Act, 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.
6.04 PRESIDENT. If appointed, 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 he 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 and shall be the
chief executive officer.
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6.05 VICE-PRESIDENT. During the absence or disability of the president,
his duties shall be performed and his powers exercised by the vice-president or,
if there are more than one, by the vice-president designated from time to time
by the board or the president. A vice-president shall have such other powers
and duties as the board or the president may prescribe.
6.06 GENERAL MANAGER. If elected or appointed, the general manager shall
have, subject to the authority of the board and the supervision of the
president, general supervision of the affairs and business of the Corporation
and the power to appoint and remove any and all employees and agents of the
Corporation not elected or appointed by the board and to settle the terms of
their employment and remuneration; and he shall have such other duties as the
board or the president may prescribe. If and so long as the general manager is
a director, he may but need not be known as the managing director.
6.07 SECRETARY. The secretary shall attend and be the secretary of all
meetings of the board, shareholders, directors 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 or cause to be given, as and when
instructed, all notices to directors, shareholders, 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 duties as the board or the president may
prescribe.
6.08 TREASURER. The treasurer shall keep proper accounting records in
compliance with the Act and, under the direction of the board, shall control 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 duties as the board or the
president may prescribe.
6.09 DUTIES OF OTHER OFFICERS. The duties of all other officers of the
Corporation shall be such as the terms of their engagement call for or as the
board or the president may prescribe. 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 president otherwise directs.
6.10 VARIATION OF DUTIES. From time to time the board may vary, add to or
limit the powers and duties of any officer.
6.11 TERM OF OFFICE. The board may remove at its pleasure any officer of
the Corporation, without prejudice to any officer's rights under any employment
contract. Otherwise each officer elected or appointed by the board shall hold
office until his successor is elected or appointed.
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6.12 TERMS OF EMPLOYMENT AND REMUNERATION. The terms of employment and the
remuneration of officers elected or appointed by the board shall be settled by
it from time to time.
6.13 AGENTS AND ATTORNEYS. The board shall have power from time to time to
appoint agents or attorneys for the Corporation in or out of Canada with such
powers of management or otherwise (including the power to sub-delegate) as may
be thought fit.
6.14 FIDELITY BONDS. The board may require such officers, employees and
agents of the Corporation as the board deems advisable to furnish bonds for the
faithful discharge of their duties, in such form and with such surety as the
board may from time to time prescribe.
SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 LIMITATION OF LIABILITY. No director or officer of the Corporation
shall be liable for the acts, receipts, neglects or defaults of any other
director or 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 by
order of the board for or on behalf of the Corporation, or for the insufficiency
or deficiency of any security in or upon 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 whatever which shall happen in the execution of
the duties of his office or in relation thereto, unless the same are occasioned
by his own wilful neglect or default, provided that nothing herein shall relieve
any director or officer of any liability imposed upon him by the Act.
7.02 INDEMNITY. Subject to the limitations contained in the Act, every
director and every officer of the Corporation and every other person who has
undertaken or is about to undertake any liability on behalf of the Corporation
or any body corporate controlled by it and his heirs, executors, administrators
and other legal personal representatives shall, from time to time, be
indemnified and saved harmless by the Corporation from and against:
(a) any liability and all costs, charges and expenses that he sustains or
incurs in respect of any action, suit or proceeding that is proposed
or commenced against him for or in respect of anything done or
permitted by him in respect of the execution of the duties of his
office; and
(b) all other costs, charges and expenses that he sustains or incurs in
respect of the affairs of the Corporation.
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7.03 INSURANCE. Subject to the limitations contained in the Act, the
Corporation may purchase and maintain such insurance for the benefit of its
directors and officers as such as the board may from time to time determine.
SECTION EIGHT
SHARES
8.01 ALLOTMENT. 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, including any shares created by articles of amendment increasing or
otherwise varying the capital of the Corporation, in such manner and to such
persons or class of persons as the board shall by resolution determine, provided
that no share shall be issued until it is fully paid as provided by the Act.
8.02 COMMISSIONS AND DISCOUNTS. The board may from time to time authorize
the payment of commissions or the allowance of discounts to persons in
consideration of their subscribing or agreeing to subscribe, whether absolutely
or conditionally, for shares of the Corporation, or procuring or agreeing to
procure subscriptions, whether absolute or conditional, for such shares.
8.03 TRANSFER AGENTS AND REGISTRARS. The board may from time to time by
resolution appoint a registrar to keep the register of security holders and a
transfer agent to keep the register of transfers and may also appoint one or
more branch registrars to keep branch registers of security holders and one or
more branch transfer agents to keep branch registers of transfers, but one
person may be appointed both registrar and transfer agent. The board may at any
time terminate any such appointment.
8.04 REGISTRATION OF TRANSFER. Subject to the provisions of the Act, no
transfer of shares shall be registered in a register of transfers or branch
register of transfers except upon surrender of the certificate representing such
shares with a transfer endorsed thereon or delivered therewith, duly executed by
the registered holder or by his attorney or successor duly appointed, together
with such assurance or evidence of signature, identification and authority to
transfer as the board may from time to time prescribe, and upon payment of all
applicable taxes, compliance with such restrictions on transfer as are
authorized by the articles and satisfaction of any lien referred to in
section 8.05.
8.05 LIEN FOR INDEBTEDNESS. The Corporation shall have a lien on the
shares registered in the name of a shareholder who is indebted to the
Corporation, to the extent of such debt.
8.06 NON-RECOGNITION OF TRUSTS. The Corporation shall be entitled to treat
the registered holder of any share as the absolute owner thereof and accordingly
shall not, except as ordered by a court of competent jurisdiction or as required
by statute, be bound to see to the
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execution of any trust, whether express, implied or constructive, in respect of
any share or to recognize any other claim to or interest in such share on the
part of any person other than the registered holder thereof.
8.07 SHARE CERTIFICATES. Every holder of one or more fully paid shares of
the Corporation shall be entitled, without payment, to a share certificate
stating the number and class or series of shares held by him as shown by the
register, and stating that such shares are fully paid. Share certificates shall
be in such form as the board shall from time to time approve. They shall be
signed in accordance with section 2.04 and need not be under the corporate seal;
provided that, unless the board otherwise orders, certificates representing
shares 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 share certificates which are not valid unless countersigned by or on behalf
of a transfer agent and/or registrar, the signatures of both signing officers
may be mechanically reproduced in facsimile upon share certificates and 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 upon the
Corporation. A share certificate executed as aforesaid shall be valid
notwithstanding that one or both of the officers whose signature (whether manual
or facsimile) appears thereon no longer holds office at the date of issue or
delivery of the certificate.
8.08 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 certificate in lieu of and upon cancellation of a share certificate that
has been mutilated or in substitution for a share certificate that has been
lost, apparently destroyed or wrongfully taken on payment of such fee, not
exceeding $1.00, 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.
8.09 JOINT SHAREHOLDERS. 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.
8.10 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 register of shareholders in respect thereof or to make
payment of any dividends thereon except upon production of all such documents as
may be required by law and upon compliance with the reasonable requirements of
the Corporation and its transfer agent.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 CASH DIVIDENDS. Subject to the provisions of the Act and the
articles, the board may from time to time declare dividends payable to the
shareholders according to their respective rights and interests in the
Corporation.
9.02 STOCK DIVIDENDS. For the amount of any dividend that the board may
lawfully declare payable in money, it may declare a stock dividend and issue
therefor shares of the Corporation as fully paid.
9.03 DIVIDEND CHEQUES. A dividend payable in cash shall be paid by cheque
drawn on the Corporation's bankers or one of them 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 ordinary mail, postage prepaid, to such registered
holder at his address appearing on the register of shareholders, 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 the address appearing on the
register of shareholders in respect of such joint holding, or to the first
address so appearing, if there are more than one. The mailing of such cheque as
aforesaid, unless the same be 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
withhold.
9.04 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 evidence of non-receipt and of title as
the board may from time to time prescribe, whether generally or in any
particular case.
9.05 RECORD DATE FOR DIVIDENDS AND RIGHTS. The board may fix in advance a
date, preceding by not more than 31 days the date for the payment of any
dividend or the date for the issue of any warrant or other evidence of 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. In every such case only
such persons as shall be shareholders of record at the close of business on the
record date so fixed shall be entitled to receive payment of such dividend or to
exercise the right to subscribe for such securities and to receive the warrant
or other evidence in respect of such right, notwithstanding the transfer or
issue of any shares after the record date is fixed.
9.06 UNCLAIMED DIVIDENDS. Any dividend unclaimed after a period of
12 years from the date on which the same has been declared to be payable shall
be forfeited and shall revert to the Corporation.
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SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 ANNUAL MEETINGS. The annual meeting of shareholders shall be held at
such time and on such day in each year as the board, the chairman of the board
or the president may from time to time determine, for the purpose of receiving
the reports and statements required by the Act to be laid before the annual
meeting, electing directors, appointing auditors and fixing or authorizing the
board to fix their remuneration, 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 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 head
office of the Corporation or elsewhere in the municipality in which the head
office is situate or at such other place or places outside Ontario as the
articles permit or, if the board shall so determine, at some other place in
Ontario.
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 Eleven not less
than 10 nor more than 50 days before the date of the meeting to each director
and to each shareholder who at the close of business on the record date for
notice is entered in the register of shareholders as the holder of one or more
shares carrying the right to vote at the meeting. Notice of a special meeting
of shareholders shall state the general nature of the business to be transacted
at it. The auditors of the Corporation are entitled to receive all notices and
other communications relating to any meeting of shareholders that any
shareholder is entitled to receive.
10.05 RECORD DATE FOR NOTICE. The board may fix in advance a time and a
date, preceding the date of any meeting of shareholders by not more than 50 days
and not less than 21 days, for the determination of the shareholders entitled to
notice of the meeting. If no such record date for notice is fixed by the board,
the record date for notice shall be the day next preceding the day on which
notice is given.
10.06 MEETINGS WITHOUT NOTICE. A meeting of shareholders may be held
without notice at any time and at any place permitted by the Act or the articles
(a) if all the shareholders entitled to vote thereat are present in person or
represented by proxy or if those not present or represented by proxy waive
notice of or otherwise consent to such meeting being held, and (b) if the
auditors and the directors are present or waive notice, or otherwise consent to
such meeting being held; and at such meeting any business may be transacted
which the Corporation at a meeting of shareholders may transact.
10.07 CHAIRMAN, SECRETARY AND SCRUTINEERS. The president or, in his
absence, the chairman of the board, if such an officer has been elected or
appointed and is present, otherwise a vice-president who is a shareholder of the
Corporation shall be chairman of
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any meeting of shareholders. 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.
10.08 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to attend a
meeting of shareholders shall be those entitled to vote thereat, the auditors of
the Corporation, if any, and others who, although not entitled to vote, are
entitled or required under any 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.
10.09 QUORUM. A quorum for the transaction of business at any meeting of
shareholders shall be two (2) or more persons present in person, each being a
shareholder entitled to vote thereat or a duly appointed proxy for an absent
shareholder so entitled, holding or representing not less than 51% of the issued
shares of the Corporation, of the class or classes respectively (if there is
more than one class of shares outstanding for the time being), enjoying voting
rights at such meeting. If there is only one shareholder, that shareholder alone
shall constitute a quorum for the purposes of this section.
10.10 RIGHT TO VOTE. At any meeting of shareholders every person shall be
entitled to vote who, at the time of the taking of the vote (or, if there is a
record date for voting, at the close of business on such record date), is
entered in the register of shareholders as the holder of one more shares
carrying the right to vote at such meeting, subject to the provisions of the Act
as to shares that have been mortgaged or hypothecated.
10.11 RECORD DATE FOR VOTING. The board may fix in advance a date,
preceding the date of any meeting of shareholders by not more than two days,
excluding non-business days, for the determination of the shareholders entitled
to vote at the meeting. The record date for voting at a meeting of shareholders
shall be specified in the notice calling the meeting or in the information
circular relating thereto.
10.12 PROXIES. Every shareholder entitled to vote at a meeting of
shareholders may appoint a person, who need not be a shareholder, as his proxy
to attend and act for him at the meeting in the manner, to the extent and with
the power conferred by the instrument appointing him. An instrument appointing
a proxy shall be in writing executed by or on behalf of the appointor and shall
conform with the requirements of the Act.
10.13 TIME FOR DEPOSIT OF PROXIES. The board may fix in advance a time,
preceding the time of any meeting or adjourned meeting of shareholders by not
more than 48 hours, excluding non-business days, before which time instruments
appointing proxies must be deposited. An instrument appointing a proxy shall be
acted upon only if, prior to the time so fixed and specified in the notice
calling the meeting or in the information circular relating thereto, it shall
have been deposited with the Corporation or an agent thereof specified in such
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notice or information circular or, if no such time is specified in such notice
or information circular, unless it has been received by the secretary of the
Corporation or by the chairman of the meeting or any adjournment thereof prior
to the time of voting.
10.14 PERSONAL REPRESENTATIVE. If the shareholder of record is deceased,
his personal representative, upon filing with the secretary of the meeting
sufficient proof of his appointment, shall be entitled to exercise the same
voting rights at any meeting of shareholders as the shareholder of record would
have been entitled to exercise if he were living, and for the purposes of the
meeting shall be considered a shareholder. If there is more than one personal
representative, the provisions of section 10.15 shall apply.
10.15 JOINT SHAREHOLDERS. If shares are held jointly by two or more
persons, any one of them present in person or represented by proxy at a meeting
of shareholders may, in the absence of the other or others, vote thereon; but if
more than one of them shall be present in person or represented by proxy, they
shall vote together as one on the shares jointly held by them.
10.16 VOTES TO GOVERN. At any meeting of shareholders every question shall,
unless otherwise required by the articles or by-laws or by law, be determined by
the majority of the votes cast on the question. In case of an equality of votes
either upon a show of hands or upon a poll, the chairman of the meeting shall
not be entitled to a second or casting vote.
10.17 SHOW OF HANDS. Subject to the provisions of the Act, any question at
a meeting of shareholders shall be decided by a show of hands unless a poll
thereon is required or demanded as hereinafter provided. Upon 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 upon a question, unless a poll
thereon is so required or demanded, a declaration by the chairman of the meeting
that the vote upon 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 favour 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 upon the said question.
10.18 POLLS. 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 or any person entitled to vote on the question may demand a
poll thereon. A poll so required or demanded shall be taken in such manner as
the chairman shall direct. A requirement or demand for a poll may be withdrawn
at any time prior to the taking of the poll. Upon a poll each person present
shall be entitled, in respect of the shares which he is entitled to vote at the
meeting upon the question, to that number of votes provided by the Act or the
articles, and the result of the poll so taken shall be the decision of the
shareholders upon the said question.
10.19 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.
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10.20 ACTION IN WRITING BY SHAREHOLDERS. Any by-law or resolution passed by
the directors may, in lieu of confirmation at a general meeting of shareholders,
be confirmed and consented to in writing by all the shareholders entitled to
vote at such meeting. Any resolution may be consented to by the signature of
all the shareholders who would be entitled to vote at a meeting of shareholders
duly called, constituted and held for the purpose of considering such
resolution.
10.21 ONLY ONE SHAREHOLDER. Where there is only one shareholder or only
one holder of any class or series of shares, his presence alone, whether in
person or by proxy, constitutes a meeting.
SECTION ELEVEN
NOTICES
11.01 METHOD OF GIVING NOTICES. Any notice (which term includes any
communication or document) to be given, sent, delivered or served pursuant to
the Act, 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 air or ordinary 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 at 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 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 or auditor
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 a share, notice to one of such persons shall be sufficient
notice to all of them. Any notice shall be addressed to all of such joint
holders and the address to be used for the purposes of section 11.01 shall be
the address appearing on the register of shareholders in respect of such joint
holding, or the first address so appearing if there are more than one.
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 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
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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.
11.05 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 a person from whom
he derives his title to such share previously to his name and address being
entered on the register of shareholders, whether such notice was given before or
after the happening of the event upon which he became so entitled.
11.06 WAIVER OF NOTICE. Any shareholder (or his duly appointed proxy),
director, officer, auditor or member of a committee of the board may waive any
notice required to be given to him under any provision of the Act, the articles,
the by-laws or otherwise and such waiver, whether given before or after the
meeting or other event of which notice is required to be given, shall cure any
default in giving such notice.
SECTION TWELVE
EFFECTIVE DATE
12.01 EFFECTIVE DATE. This by-law shall come into force when passed by the
board, save that sections 3.01, 3.02, 5.01, 6.02 and 8.02 shall not come into
force until confirmed by the shareholders in accordance with the Act.
MADE by the board as of the 22nd day of May, 1997.
/s/ "Fred Burke", Director
CONFIRMED by the shareholders in accordance with the Act as of the 22nd day of
May, 1997.
/s/ "Fred Burke", Secretary
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