EXHIBIT 3.4
4200217 CANADA INC.
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(Name of the Corporation)
GENERAL BY-LAWS
enacted in accordance with the provisions of the
Canada Business Corporations Act
Adopted as of _______________, 2004
GENERAL BY-LAWS
OF THE CORPORATION
enacted in accordance with the provisions of the
Canada Business Corporations Act
INDEX
Page
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DEFINITIONS............................................................................................... 1
SITUATION OF REGISTERED OFFICE AND OFFICES................................................................ 1
1. Registered Office....................................................................... 1
2. Offices................................................................................. 1
SHAREHOLDERS.............................................................................................. 1
3. Annual Meeting.......................................................................... 1
4. Special Meetings........................................................................ 2
5. Place of Meetings....................................................................... 2
6. Notice of Meetings...................................................................... 2
7. Waiver of Notice........................................................................ 3
8. Chairperson............................................................................. 3
9. Quorum.................................................................................. 3
10. Proxy................................................................................... 3
11. Participation by Telephone or Electronic Means and Meetings Held by Telephone or
Electronic Means........................................................................ 4
12. Voting Right............................................................................ 4
13. Decisions Taken by the Majority......................................................... 4
14. Casting Vote............................................................................ 4
15. Vote by a Show of Hands................................................................. 4
16. Voice Vote.............................................................................. 4
17. Secret Ballot........................................................................... 4
18. Electronic voting....................................................................... 5
19. Procedure at Meetings................................................................... 5
20. Scrutineers............................................................................. 5
21. Addresses of Shareholders and Subsequent Transferees.................................... 5
22. Signed Resolutions...................................................................... 5
BOARD OF DIRECTORS........................................................................................ 6
23. Number.................................................................................. 6
24. Qualifications.......................................................................... 6
25. Election and term of office............................................................. 6
26. Consent................................................................................. 6
27. Resignation............................................................................. 6
28. Removal................................................................................. 6
29. Vacancy................................................................................. 7
30. Filling of Vacancies.................................................................... 7
31. Remuneration............................................................................ 7
32. General Powers of Directors............................................................. 7
33. Irregularity............................................................................ 7
34. Use of Property or Information.......................................................... 8
35. Conflicts of Interest................................................................... 8
36. Contracts or transactions with the Corporation.......................................... 8
MEETINGS OF THE BOARD OF DIRECTORS........................................................................ 9
37. Calling of Meetings..................................................................... 9
38. Participation by Telephone or Electronic Means.......................................... 10
39. Quorum.................................................................................. 10
40. Meeting Chairperson and Secretary....................................................... 10
41. Procedure............................................................................... 10
42. Voting.................................................................................. 10
43. Signed Resolution....................................................................... 11
OFFICERS.................................................................................................. 11
44. Officers................................................................................ 11
45. Chairperson of the Board................................................................ 11
46. President............................................................................... 11
47. Vice-President.......................................................................... 11
48. Managing Director or General Manager.................................................... 11
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49. Comptroller............................................................................. 12
50. Secretary............................................................................... 12
51. Treasurer............................................................................... 12
52. Removal, Discharge and Resignation...................................................... 12
53. Vacancy................................................................................. 12
54. Remuneration............................................................................ 12
EXECUTIVE COMMITTEE....................................................................................... 12
55. Election................................................................................ 12
56. Officers, Quorum and Procedure.......................................................... 13
57. Chairpersonship......................................................................... 13
58. Secretary............................................................................... 13
59. Powers.................................................................................. 13
60. Supervisory Power of the Board of Directors............................................. 13
61. Participation by Telephone and Signed Resolutions....................................... 13
62. Meetings................................................................................ 13
63. Remuneration............................................................................ 13
64. Removal and Filling of Vacancies........................................................ 13
OTHER COMMITTEES.......................................................................................... 14
65. Other Committees........................................................................ 14
INDEMNIFICATION OF DIRECTORS AND OFFICERS................................................................. 14
66. Indemnity............................................................................... 14
67. Insurance............................................................................... 14
68. Reimbursement and advance of costs...................................................... 14
CAPITAL STOCK............................................................................................. 14
69. Issue and Stock Options................................................................. 14
70. Share Certificates and Share Transfers.................................................. 15
71. Securities Register..................................................................... 15
72. Lost or Destroyed Certificates.......................................................... 15
DIVIDENDS................................................................................................. 15
73. Dividends............................................................................... 15
FISCAL YEAR AND AUDIT..................................................................................... 15
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74. Fiscal Year............................................................................. 15
75. Audit................................................................................... 15
CORPORATION'S REPRESENTATION FOR CERTAIN PURPOSES......................................................... 16
76. Declaration............................................................................. 16
77. Representation at Meetings.............................................................. 16
78. Signature of Documents.................................................................. 16
79. Declarations in the Register............................................................ 17
MISCELLANEOUS PROVISIONS.................................................................................. 17
80. Conflict with the Articles.............................................................. 17
81. Amendments.............................................................................. 17
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GENERAL BY-LAWS
OF THE CORPORATION
enacted in accordance with the provisions of the
Canada Business Corporations Act
DEFINITIONS
For the purposes of these By-laws, unless otherwise provided:
"Act" means the Canada Business Corporations Act, R.S.C. (1985) ch. C-44, as
well as any amendment which may be made thereto, and any act which may be
substituted therefore.
"Auditor" means the auditor of the Corporation and includes an auditing firm.
"Ordinary Resolution" means a resolution adopted by the majority of the votes
cast by the shareholders who voted in respect of that resolution.
"Resident Canadian" has the particular meaning as described by the Act to such
expression but, as a summary, includes a Canadian citizen and a permanent
resident within the meaning of the Immigration Act, habitually residing in
Canada.
"Special Resolution" means a resolution adopted by two-thirds at least of the
votes cast by the shareholders who voted in respect of that resolution or signed
by all the shareholders entitled to vote on that resolution.
"Unanimous Shareholders Agreement" means an agreement described in subsection
146(2) of the Act entered into among all the shareholders of the Corporation.
SITUATION OF REGISTERED OFFICE AND OFFICES
1. Registered Office. The registered office of the Corporation is situated in
the Province specified in the Articles, at such address as the Board of
Directors may determine.
2. Offices. The Corporation may, in addition to its registered office, establish
and maintain any other offices and agencies elsewhere within or outside Canada.
SHAREHOLDERS
3. Annual Meeting. The annual meeting of the shareholders of the Corporation
shall be held on such date each year and at such time as may be fixed by the
Board of Directors, to receive and consider the financial statements with the
report of the Auditor, to elect directors, to appoint an Auditor and to fix or
to authorize the Board of Directors to fix his remuneration, and to consider,
deal with and dispose of such other business as may lawfully come before the
meeting. The annual meeting of the shareholders of the Corporation shall be
called no later than six (6) months after the end of the preceding financial
year.
4. Special Meetings. Special meetings of the shareholders may be called at any
time as determined by the President or the Board of Directors and shall be
called by the Board of Directors when required by one or more shareholders
holding no less than 5% of the outstanding voting shares in conformity with the
Act.
5. Place of Meetings. Meetings of the shareholders shall be held at the
registered office of the Corporation or at any other place in Canada that may be
fixed by the Board of Directors. Meetings of the shareholders may be held
outside Canada at the place specified in the Articles or if all shareholders
entitled to vote thereat so agree; a shareholder who attends a meeting held
outside Canada is deemed to have agreed to it being held outside Canada except
when he attends for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully held.
6. Notice of Meetings. Notice of each annual meeting and of each special meeting
of the shareholders shall be delivered to the shareholders entitled to vote
thereat, the directors and the Auditor or, in the discretion of the person
charged with the giving of such notice, mailed by ordinary mail or transmitted
by facsimile or e-mail to the shareholders entered in the books of the
Corporation, the directors and the Auditor, at their respective addresses or
facsimile numbers, not less than twenty-one (21) days and not more than sixty
(60) days prior to the date fixed for the meeting. If the address of the
shareholder is not entered in the books of the Corporation, the notice may be
sent as aforesaid to the address that the person sending the notice considers to
be most likely to reach such shareholder promptly. The irregularity in the
notice of meeting or the delivery thereof, including the accidental omission of
giving it or the non-reception by a shareholder, a director or the Auditor, does
not affect the validity of the procedures at the meeting.
Such notice shall specify the date, time and place of each meeting. The
notice of the annual meeting may, but need not, specify the nature of the
business when such meeting is called only to consider the financial statements
with the report of the Auditor, to elect directors and to re-appoint the
incumbent Auditor. The notice of the annual meeting at which other business
shall be transacted, as well as the notice of special meeting, shall state:
(a) the nature of business to be considered in sufficient detail to
permit the shareholders to form a reasoned judgment thereon; and
(b) the text of any Special Resolution to be submitted to the meeting.
It is not necessary to give notice of the reconvening of an adjourned
meeting other than by announcement at the earliest meeting that is adjourned; a
new notice of meeting is, however, required if the meeting of the shareholders
is adjourned one (1) or more times for an aggregate of thirty (30) days or more.
The signature to any notice of meeting may be written, stamped,
typewritten, printed or otherwise mechanically reproduced thereon.
A certificate of the Secretary or of any other duly authorized officer of
the Corporation in office at the time of the making of the certificate shall be
conclusive evidence that may be set up against any shareholder, director or the
Auditor of the sending or delivery of a notice of meeting.
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7. Waiver of Notice. A shareholder or any other person entitled to attend a
meeting of shareholders may waive the notice of a meeting of the shareholders
prior to, during or after the holding of such meeting. His sole attendance at a
meeting is a waiver except where he attends a meeting for the express purpose of
objecting to the transaction of any business on the grounds that the meeting is
not lawfully called.
8. Chairperson. The President of the Corporation, or such other person as may
from time to time be appointed for that purpose by the Board of Directors, shall
preside at meetings of shareholders.
9. Quorum. One (1) or more persons present in person or represented in
accordance with Section 10 below and holding not less than fifty percent (50%)
plus one of the aggregate number of votes attached to all the voting shares for
such meeting shall constitute a quorum at an annual or special meeting of the
shareholders, regardless of the actual number of persons physically present.
If a quorum is present at the opening of a meeting, the shareholders
present or represented may proceed with the business of the meeting, even though
a quorum is not maintained throughout the meeting.
If a quorum is not present at the opening of a meeting, the shareholders
present or represented may, by a majority vote to that effect, adjourn the
meeting to a fixed time and place, but may not transact any other business.
If a quorum is present at the reconvening of the meeting so adjourned,
said meeting may proceed, failing which, a new meeting shall be called.
10. Proxy. Shareholders shall be entitled to vote in person or, if a body
corporate, through a representative duly authorized by resolution of the
directors or other governing body of such body corporate. Shareholders shall
also be entitled to vote by proxy.
A proxyholder need not be a shareholder of the Corporation and may serve
as proxyholder for several shareholders.
The proxy appointing a proxyholder may be in the following form or in any
other appropriate form:
"I/We, the undersigned, being a shareholder of
_______________ hereby nominate, constitute and appoint
________ or failing him, _____________, my/our attorney,
representative and/or proxyholder with full power and
authority to attend, vote and otherwise act for me/us in
my/our name and on my/our behalf at the annual (or
special) meeting of shareholders of the Corporation, to be
held at _______________ on the ____________ day of
_________ and at any and all adjournments thereof, with
full power of substitution, and I/we, the undersigned,
hereby revoke all other proxy given by me/us, the
undersigned, which might be used in respect of such
meeting and at any and all adjournments thereof.
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Given this __________ day of ________.
(signed)"
Signatures of proxies need not be witnessed.
The Board of Directors may, in the notice of a meeting of shareholders,
specify a date and a time limit when proxies to be used at a meeting must be
deposited with the Corporation or its mandatory; such date and time limits shall
not precede the meeting by more than forty-eight (48) hours, excluding Saturdays
and statutory holidays.
11. Participation by Telephone or Electronic Means and Meetings Held by
Telephone or Electronic Means. Any person entitled to attend a meeting of
shareholders may participate in the meeting using means permitting all
participants to communicate adequately with each other, if the Corporation makes
available such a communication facility, in particular, telephonic or electronic
means. A person participating in a meeting by such means is deemed to be present
at the meeting.
The directors or the shareholders, as the case may be, who call a meeting
may determine that the meeting shall be held entirely by means permitting all
participants to communicate adequately with each other, in particular, by
telephonic or electronic means.
12. Voting Right. Subject to the provisions of the Articles and the Act, each
shareholder shall have as many votes as he has voting shares of the Corporation.
13. Decisions Taken by the Majority. Unless otherwise provided in the Act, all
matters submitted to a meeting of shareholders will be decided by Ordinary
Resolutions.
14. Casting Vote. In the event of an equality in the voting, the Chairperson
will have no casting vote.
15. Vote by a Show of Hands. Unless a voice vote or a vote by secret ballot is
requested, the vote shall be taken by a show of hands. In such case, the
shareholders or their proxyholders shall vote by raising their hands, and the
number of votes shall be calculated in accordance with the number of raised
hands.
16. Voice Vote. If the Chairperson so orders or if another person holding or
representing by proxy not less than ten percent (10%) of the votes attached to
the outstanding voting shares so requests (notwithstanding withdrawal of such
request), and if a vote by secret ballot is not requested, a voice vote shall be
taken. In such case, each shareholder or proxyholder shall verbally declare his
name and that of each shareholder for whom he holds a proxy, the number of votes
he has and the manner in which he shall cast such votes. The number of votes so
casts shall determine whether or not a resolution is carried.
17. Secret Ballot. If the Chairperson so orders or a shareholder or proxyholder
entitled to vote so requests, the vote shall be taken by secret ballot. A
request for a vote by secret ballot may be made at any time prior to the
adjournment of the meeting, even after the holding of a vote by a show of hands
or a voice vote, and such a request may also be withdrawn. Each
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shareholder or proxyholder shall remit to the scrutineers one or more ballots,
on which he shall enter the manner in which he shall cast the votes he has and,
as the case may be, his name and the number of votes he has. Whether or not a
vote by a show of hands or a voice vote has previously been taken on the same
matter, the result of a secret ballot shall be deemed to represent the
resolution of the meeting in respect thereof.
18. Electronic voting. The Corporation may allow the shareholders and their
proxyholders to vote by means of a telephonic or electronic communication
facility it makes available for that purpose and in conformity with the
explanation and instructions it provides them, inasmuch as this facility enables
the votes to be gathered in a manner that permits their subsequent verification
and permits the tallied votes to be presented to the Corporation without it
being possible for the Corporation to identify how each shareholder or group of
shareholders voted.
19. Procedure at Meetings. The Chairperson of any meeting of shareholders shall
be responsible for conducting the procedure thereat in all respects, and his
decision on any matter, even a matter pertaining to the validity or non-validity
of a proxy and the receivability or nonreceivability of a motion, shall be final
and binding on all the shareholders.
Unless a ballot is demanded a declaration by the Chairperson that a
resolution has been carried or defeated, with or without qualification of
unanimity, by a particular majority, and an entry to this effect in the minutes
of the meeting shall be conclusive evidence of the fact.
At all times during the meeting, the Chairperson, of his own initiative or
without the assent of the shareholders given by a simple majority, for a valid
reason, such as a disturbance or confusion rendering the harmonious and orderly
conduct of the meeting impossible, may adjourn the meeting from time to time and
no notice of any such adjourned meeting need be given; a new notice of meeting
is, however, required if the meeting of the shareholders is adjourned one (1) or
more times for an aggregate of thirty (30) days or more.
Should the Chairperson fail to carry out his duties in good faith, the
shareholders may remove him at any time and replace him by another person chosen
from among their number.
The directors of the Corporation shall be entitled, in such sole capacity,
to attend meetings of shareholders and to take the floor thereat.
20. Scrutineers. The Chairperson at any meeting of shareholders may appoint
scrutineers (who may but need not be directors, officers, employees, or
shareholders of the Corporation), who shall act in accordance with the
directives of the Chairperson.
21. Addresses of Shareholders and Subsequent Transferees. Every shareholder
shall furnish to the Corporation a mailing or electronic address to which all
notices intended for such shareholder may be sent to him. Every person who, by
operation of law, transfer or other means whatsoever, shall be entitled to any
share, shall be bound by every notice in respect of such share which was given
before his name and address were entered on the register to the person whose
name appears on the register at the time such notice is given.
22. Signed Resolutions. A resolution in writing signed by all the shareholders
entitled to vote on that resolution at a meeting of shareholders shall be as
valid as if it had been passed at a
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meeting of the shareholders. A copy of each signed resolution shall be kept with
the minutes of the meetings of shareholders.
BOARD OF DIRECTORS
23. Number. The Corporation shall be managed by a Board of Directors composed of
the fixed number of directors indicated in its Articles. If the Articles
establish a minimum and a maximum number of directors, the Board of Directors
shall be composed of the fixed number of directors established by by-law passed
by the Board of Directors or, failing this, selected by the shareholders within
such limits.
24. Qualifications. Any natural person may be a director, except a person who is
less than eighteen (18) years of age, a person under tutorship or curatorship, a
person declared incapable by a court in Canada or in another country, an
undischarged bankrupt or a person prohibited by the court from holding the
office of director. Unless otherwise provided in the Articles, a director need
not be a shareholder.
At least twenty-five percent (25%) of the directors shall be Resident
Canadians, unless otherwise set out in the Act. A retiring director, if
otherwise qualified, shall be eligible for re-election.
25. Election and term of office. Unless the Articles of the Corporation provide
for cumulative voting, or confer upon the holders of a category or a series of
shares the exclusive right to elect one (1) or more directors, in which case,
the provisions of the Articles shall prevail, each director shall be elected at
the annual meeting at which an election of directors is required, except for
appointing a director following a vacancy occurring during the term or for the
election of one or more additional directors. Each director shall be elected
either for a fixed term, which shall terminate no later than at the close of the
third following annual meeting, or an indeterminate term, which shall terminate
at the close of the first following annual meeting. It shall not be necessary
for all the directors to have the same term of office. Provided that no new
directors have been elected in a meeting of shareholders, the term of the
directors continue until the election of their successors.
26. Consent. A director who is elected or appointed must consent to hold office
as such, (i) by not refusing to hold office if he is present at the meeting when
the election or appointment takes place, (ii) by consenting to hold office in
writing before the election or appointment or within ten (10) days if he is not
present at the meeting, or (iii) by acting as a director pursuant to his
election or appointment.
27. Resignation. A director may resign his office by written notice to the
Corporation. Reasons need not be given for a resignation. Unless a subsequent
date is stipulated in such notice, the resignation shall take effect on the date
it is sent.
28. Removal. Subject to the Articles of the Corporation, any director may be
removed by Ordinary Resolution at a special meeting of shareholders. The removal
of a director, as well as his election, shall be at the discretion of the
shareholders. A director informed of his imminent removal may state in a written
statement to the Corporation the reason for his opposition to such
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removal, and the Corporation shall forward such written declaration to the
shareholders authorized to vote in the circumstances and to the Director of
Corporations.
A vacancy created by the removal of a director may be filled by the
shareholders at the meeting at which the removal took place; where such is the
case, the notice of calling of the meeting shall mention that an election is to
be held if the resolution for removal is carried.
Where the holders of a specific class or series of shares have an
exclusive right to elect a director, he may only be removed by Ordinary
Resolution at a special meeting of such shareholders called for that purpose.
The removal of a director, as well as his election, shall be at the
discretion of the shareholders. A director may be removed at any time and such
removal need not be based on any particular grounds, whether serious or not.
Neither the Corporation nor the shareholders voting in favour of the removal
shall incur any liability toward the director by the mere fact of his removal,
even if there be no grounds therefore.
29. Vacancy. The office of a director shall become vacant as of the moment his
resignation or removal takes effect; likewise, a vacancy shall be created the
moment a director is no longer qualified to fulfill his duties in accordance
with Section 24, or if he should die.
30. Filling of Vacancies. If a vacancy occurs in the Board of Directors, the
directors then in office shall have the power to appoint for the remainder of
the term any other qualified person as a director. However, the directors may
continue to act notwithstanding one or more vacancies provided a quorum exists.
If there is no quorum, the remaining directors shall forthwith call a special
meeting of shareholders to fill the vacancy, in accordance with Section 111 of
the Act.
31. Remuneration. Subject to restrictions in the Articles of the Corporation,
the remuneration to be paid to the directors shall be such as the directors
shall fix from time to time by resolution of the Board of Directors and such
remuneration shall be in addition to the salary or remuneration of any officer,
employee or supplier of services of the Corporation who is also a member of the
Board of Directors, unless a resolution states otherwise. The directors may also
be reimbursed for travel and other expenses incurred by them in connection with
their duties.
32. General Powers of Directors. Subject to restrictions in a Unanimous
Shareholders Agreement, the directors of the Corporation shall manage or
supervise the management of the business and affairs of the Corporation and may
make or cause to be made for the Corporation any contract which it may by law
enter into. The directors shall exercise all such powers and authority as the
Corporation by statute or by its Articles is authorized to exercise and do. The
directors shall always act by resolution.
The directors may, in particular, purchase or dispose of, by purchase,
sale, lease, exchange, hypothec or otherwise, stocks, rights, warrants, options
and other securities, buildings and other movable or immovable property or any
right or interest therein; for each transaction, they shall fix the
consideration and other conditions.
33. Irregularity. Notwithstanding that it be subsequently discovered that there
was some defect in the election of the board of directors or of any director or
in the appointment of any
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officer, or the absence or loss of his qualification, all acts regularly done by
them shall be as valid and binding upon the Corporation as if the election or
appointment had been regular or each person had been qualified.
34. Use of Property or Information. All directors and officers shall, in
exercising their powers and discharging their duties, act honestly and in good
faith with a view to the best interests of the Corporation. No director may
mingle the Corporation's property with his own property or use for his own
profit or that of a third person any property of the Corporation or any
information he obtains by reason of his duties, unless he is expressly and
specifically authorized to do so by the shareholders of the Corporation.
35. Conflicts of Interest. Each director shall avoid placing himself in any
situation where his personal interest would be in conflict with his obligations
as a director of the Corporation.
He shall promptly disclose to the Corporation any interest he has in an
enterprise or other entity that may place him in a situation of conflict of
interest and any right he may set up against it, indicating their nature and
extent, where applicable. Such disclosure of interest shall be entered in the
minutes of the meetings of directors. A general disclosure shall be valid as
long as the facts have not changed, and the director need not repeat it for a
specific subsequent transaction.
36. Contracts or transactions with the Corporation. A director or an officer
may, even in performing his duties, acquire, directly or indirectly, rights in
the Corporation's property or enter into material contracts or transactions with
the Corporation, or be a director, an officer or a holder of a material interest
in a party to such contract or transaction. He shall then, in accordance with
Section 120 of the Act, disclose in writing to the Corporation or request to
have entered in the minutes of meetings of directors the nature and extent of
his interest in such contract or transaction, even if such contract or
transaction, within the scope of the normal business activity of the
Corporation, does not require the approval of either the directors or the
shareholders. For the purposes of this by-law, a general notice that the
director or officer is a director, an officer or a holder of a material interest
in a body corporate and is to be regarded as interested in any contract or
transaction made with that body corporate, is a sufficient declaration of
interest.
A director who is so interested in a contract shall not discuss or vote on
such resolution to approve the contract or transaction unless the contract or
transaction is one of the contracts or transactions referred in subsection
120(5) of the Act, that is, relating primarily to the remuneration or
indemnification of such director, or a contract with an affiliate of the
Corporation.
At the request of the President or any director, the interested director
shall leave the meeting while the Board of Directors discusses and votes on the
contract concerned.
Neither the Corporation nor any of its shareholders may contest the
validity of a contract or transaction entered into with a director or an officer
of the Corporation, or with a party of which such director or officer is a
director, an officer or a holder of a material interest, for such sole reason or
for the reason that he was present or was counted to determine whether a quorum
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existed at the meeting, provided such director or officer has disclosed his
interest as aforementioned, the Board of Directors of the Corporation has
approved the contract or transaction, and the contract or transaction was, at
that time, reasonable and fair for the Corporation.
Such a contract or transaction is not invalid by reason only of the
interest of a director or officer in it or of his failure to disclose this
interest as aforementioned, provided such director or officer acted honestly and
in good faith, the contract or transaction is approved or confirmed by Special
Resolution at a meeting of the shareholders, disclosure of the interest is made
to the shareholders in a manner sufficient to indicate its nature before such
contract or transaction is approved or confirmed, and the contract or
transaction is reasonable and fair to the Corporation when it is approved or
confirmed.
MEETINGS OF THE BOARD OF DIRECTORS
37. Calling of Meetings. Every year, immediately after the annual meeting of the
shareholders, a meeting of the new directors present shall be held without
further notice if they constitute a quorum, to elect or appoint the officers of
the Corporation and consider, deal with and dispose of any other matter.
Meetings of the Board of Directors may be called by or by order of the
Chairperson of the Board of Directors, if any, the President of the Corporation
or two (2) directors and may be held anywhere within or outside Canada. A notice
of each meeting, specifying the place, date and time, shall be sent to each
director at his residence or usual place of business. The notice shall be sent
no less than two (2) days prior to the date fixed for the meeting by ordinary or
registered mail or by facsimile or electronic mail. In the absence of an address
for a director, the notice may be sent to the address at which the sender
considers that the notice is most likely to reach the director promptly.
The Board of Directors may resolve to hold periodic or fixed meetings of
the Board of Directors at such place, within Canada or elsewhere, with or
without notices of meeting.
It is not necessary to give notice of the reconvening of an adjourned
meeting if the date, time and place of the reconvening of this meeting are
announced at the initial meeting.
Any director may waive in writing the notice of a meeting of the Board of
Directors before, during or after the holding thereof. His sole presence is
equivalent to a waiver unless he attended the meeting solely to object to the
holding of the meeting on the ground that the manner of calling it was
irregular.
Except in the case of matters referred to in subsection 115(3) of the Act,
including, in particular, the declaration of dividends, the issuance of
securities, the acquisition of shares issued by the Corporation, the approval of
the annual financial statements, vacancies in the Board of Directors or in the
office of Auditor and the adoption, amendment or repeal of the by-laws, no
notice of any meeting of the Board of Directors need specify the purpose or the
business to be transacted at a meeting.
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38. Participation by Telephone or Electronic Means. Directors may, if all are in
agreement, participate in a board meeting using means permitting all
participants to communicate adequately with each other, in particular, by
telephonic or electronic means. A director participating in the meeting by such
means shall be deemed to have been present at that meeting. The directors
participating by telephonic means shall then vote by a voice vote, in derogation
of Section 42 hereinbelow. An electronic vote is deemed to have been given by
show of hands or by ballot, as the case may be.
39. Quorum. A majority of the directors in office shall constitute a quorum for
a meeting of the Board of Directors. A quorum shall be present for the entire
duration of the meeting. If the Board of Directors is composed of a sole
director, the decision of such director recorded in writing constitutes the
meeting.
When the quorum is reached, notwithstanding any vacancy on the Board of
Directors, the directors may exercise all their powers; however, no business
shall be transacted at a meeting of directors unless at least twenty-five per
cent (25%) of the directors present thereat are Resident Canadian directors,
except where (a) a Resident Canadian director who is unable to be present
approves in writing, or by telephonic, electronic or other communication
facility, the business transacted at the meeting and (b) at least twenty-five
per cent (25%) of the directors present thereat would have been Resident
Canadian directors had that director been present at that meeting.
40. Meeting Chairperson and Secretary. Meetings of the Board of Directors shall
be chaired by the Chairperson of the Board of Directors, if any, or, failing
him, by the President of the Corporation if he is a director or, failing him, by
a Vice-President who is a director and is designated for such purpose by the
President. The Secretary of the Corporation shall act as secretary of the
meetings. The directors present at a meeting may nevertheless appoint any other
person as Chairperson or secretary of such meeting.
41. Procedure. The meeting Chairperson ensures that the meeting is conducted
smoothly and submits to the Board the motions on which a vote is to be taken and
generally conducts the procedure thereat in all respects, in which regard his
decision shall be final and binding on all the directors. Should the meeting
Chairperson fail to submit a motion, any director may submit it himself before
the meeting is adjourned or closed and, if such motion lies within the
competence of the Board of Directors, the Board of Directors shall consider it.
For such purpose, the agenda of each meeting of the Board of Directors shall be
deemed to include a period for the submission of motions by the directors.
Should the meeting Chairperson fail to carry out his duties in good faith, the
directors may remove him at any time and replace him by another person.
42. Voting. Each director shall be entitled to one vote and all matters shall be
decided by the majority of the votes cast. The vote shall be taken by a show of
hands unless the meeting Chairperson or a director requests a ballot, in which
case the vote shall be taken by ballot. If the vote is taken by ballot, the
meeting secretary shall act as scrutineer and count the ballots. The fact of
having voted by ballot shall not deprive a director of the right to express his
dissidence in respect of the resolution concerned and to cause such dissidence
to be entered. Voting by proxy shall not be permitted, and the meeting
Chairperson shall have no casting vote in the case of an equality of votes.
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43. Signed Resolution. A resolution in writing, signed by all the directors
entitled to vote on that resolution at a meeting of directors, shall be as valid
as if it had been passed at a meeting of directors. A copy of each signed
resolution shall be kept with the minutes of the proceedings of the directors.
OFFICERS
44. Officers. The officers of the Corporation shall be the Chairperson of the
Board, if appointed, the President, and, if elected or appointed, one or more
Vice-Presidents, the Managing Director, the General Manager, the Comptroller,
the Secretary, the Treasurer, and such other officers as the Board of Directors
may appoint and whose duties it may determine by resolution. Subject to those
powers which, pursuant to the Act, may only be exercised by the Board of
Directors, the officers of the Corporation shall have the powers, functions and
duties prescribed by the Board of Directors, in addition to those specified in
the by-laws. The same person may hold more than one office. Other than the
President, or, if appointed, the Chairperson of the Board of Directors or, if
any, the Managing Director, who shall be a director, none of the officers shall
be required to be a director or a shareholder of the Corporation.
The Board of Directors may also appoint other agents, officers and
employees of the Corporation within or outside Canada; the titles, powers,
authority, and duties of such persons shall be determined by the Board of
Directors.
In case of the absence of an officer or for any other reason that the
Board of Directors may deem sufficient, the Board of Directors may delegate the
powers and authority of such officer to any other officer or to a director of
the Corporation.
If the Board of Directors consists of one (1) director, that director may
hold the offices of President, Secretary or of any other officer of the
Corporation.
45. Chairperson of the Board. The Chairperson of the Board shall preside at all
meetings of the Board of Directors.
46. President. The President shall be the chief officer of the Corporation and,
subject to the control of the Board of Directors and the appointment of a
Managing Director or General Manager, shall supervise, administer and manage the
business and affairs of the Corporation generally. The President shall preside
at all meetings of the shareholders and, in the event of the absence, inability
or failure of the Chairperson of the Board to act, the President shall preside
at all meetings of the Board of Directors.
47. Vice-President. In case of absence, incapacity and failure to act of the
President, the Vice-President or, if more than one, any Vice-President or other
officer designated for that purpose by the Board of Directors, shall assume the
powers and duties of the President. The powers, functions and duties of a
Vice-President shall be those which the Board of Directors or the President
prescribe.
48. Managing Director or General Manager. The Managing Director or General
Manager shall, subject to the control of the President, manage the operations of
the Corporation generally. He shall comply with all instructions received from
the Board of Directors and shall give to the
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Board of Directors or the members thereof the information that they require
concerning the affairs of the Corporation. The Board of Directors may delegate
to such Managing Director or General Manager any of the powers of the Board
except those that by law a Managing Director has no authority to exercise.
The Managing Director shall be a Resident Canadian and a director.
49. Comptroller. The Comptroller shall, subject to the control of the President,
be the chief accounting officer of the Corporation. He shall, upon request,
render account to the President and the directors of the financial situation of
the Corporation and all its transactions. He shall be entrusted with and have
custody of the books of account.
50. Secretary. The Secretary shall attend to the preparation and sending of all
notices of the Corporation. He shall act as secretary at all shareholders'
meetings and shall keep the minutes of all meetings of the Board of Directors,
the committees of directors and the shareholders in a book or books to be kept
for that purpose. He shall have charge of the records of the Corporation
including books containing the names and addresses of the members of the Board
of Directors of the Corporation, together with copies of all reports made by the
Corporation and such other books or documents as the directors may prescribe. He
shall be responsible for the keeping and filing of all books, reports,
certificates and all other documents required by law to be kept and filed by the
Corporation. He shall be subject to the control of the President.
51. Treasurer. Subject to the control of the President, the Treasurer shall have
general charge of the finances of the Corporation. He shall deposit the money
and other valuable effects of the Corporation in the name and to the credit of
the Corporation in a bank or another deposit institution designated by the Board
of Directors.
52. Removal, Discharge and Resignation. The Board of Directors may, by the
affirmative vote of the absolute majority of the Board, remove any officer, with
or without cause, at any time. Any agent or employee who is not an officer of
the Corporation may be discharged by the President or any other officer
authorized for such purpose, with or without cause, at any time.
Any officer may resign his office at any time by delivering his
resignation in writing to the President or the Secretary of the Corporation, or
at a meeting of the Board of Directors, unless otherwise agreed.
53. Vacancy. Any vacancy occurring in the office of any officer may be filled by
the Board of Directors.
54. Remuneration. The remuneration of all officers shall be fixed by the Board
of Directors. The remuneration of all other agents, officers and employees of
the Corporation shall be fixed by the President or any other officer authorized
for such purpose.
EXECUTIVE COMMITTEE
55. Election. The Board of Directors may appoint among their number one
committee of the Board of Directors, designated as "Executive Committee".
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56. Officers, Quorum and Procedure. The Executive Committee shall have power to
appoint officers thereto, to fix its quorum, which quorum shall consist of not
less than a majority of its members, and to determine its own procedure.
57. Chairpersonship. Meetings of the Executive Committee shall be chaired by the
Chairperson of the Board of Directors or, if none is appointed, by the President
of the Corporation. In his absence, meetings of the Executive Committee shall be
chaired by the person whom the members of the Executive Committee present choose
amongst themselves.
58. Secretary. The Secretary of the Corporation shall act as secretary of the
Executive Committee unless some other secretary be appointed by such committee.
59. Powers. The Executive Committee shall possess the powers and authority of
the Board of Directors for the administration of the day-to-day business and
affairs of the Corporation, except the powers which, by law, must be exercised
by the Board of Directors, as well as the powers which the Board of Directors
may expressly reserve for itself.
60. Supervisory Power of the Board of Directors. All acts of the Executive
Committee shall be subject to the supervision of the Board of Directors and
shall be reported to the Board of Directors when the Board of Directors so
directs. The Board of Directors may invalidate or modify decisions taken by the
Executive Committee, provided that the rights of third parties are not affected.
61. Participation by Telephone and Signed Resolutions. Sections 37 and 42 shall
apply, mutatis mutandis, to meetings of the Executive Committee.
62. Meetings. Meetings of the Executive Committee may be held at the head office
of the Corporation or at such other place within or outside Canada as the
Executive Committee may determine.
Meetings of the Executive Committee may be called by or by the order of
the President or by two members of such committee.
A member of the Executive Committee may waive in writing a notice of a
meeting of the Executive Committee, prior to or after the holding of the
meeting. His sole attendance at a meeting is a waiver except where he attends a
meeting solely for the purpose of objecting to the transaction of any business
on the grounds that the meeting was not lawfully called.
63. Remuneration. The members of the Executive Committee shall be entitled to
receive such remuneration for their services as members of the Executive
Committee as the Board of Directors may determine.
64. Removal and Filling of Vacancies. The Board of Directors may from time to
time remove any member of the Executive Committee from office.
The Board of Directors may also fill any vacancy which may occur in the
membership of the Executive Committee.
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OTHER COMMITTEES
65. Other Committees. The Board of Directors may appoint any other committee
that it may deem fit. Any such committee shall only have advisory power. The
members of any such committee need not be members of the Board of Directors.
Except as otherwise provided by the Board of Directors, each such committee
shall have the power to fix its quorum, which quorum shall consist of no less
than a majority of its members, to appoint it own president, and to determine
its own procedure.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
66. Indemnity. Subject to the limitations provided by the Act, the Corporation
shall indemnify a director or officer of the Corporation, a former director or
officer of the Corporation or a person who acts or acted at the Corporation's
request as a director or officer, or a person acting in a similar capacity, of
another entity, 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,
administrative or investigative or other proceeding in which he is involved by
reason of being or having been a director or officer of the Corporation or as a
director or officer, or a person acting in a similar capacity, of such entity,
if:
(a) he acted honestly and in good faith with a view to the best
interests of the Corporation or, as the case may be, the entity; 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.
67. Insurance. The Corporation may purchase and maintain insurance for the
benefit of any person referred to in Section 66 against such liability as the
Board of Directors may from time to time determine, and as permitted by the Act.
68. Reimbursement and advance of costs. Subject to a contract specifying and
restraining this obligation, the Corporation shall reimburse the director,
officer and any other agent for the reasonable and necessary costs paid by him
during the execution of his duties. This reimbursement shall be done after the
presentation of all relevant documents. Moreover, the Corporation shall at his
request advance moneys to such individual for the costs, charges and expenses
referred to in Section 66, and the individual must repay the moneys if he does
not fulfil the conditions set out in Section 66.
CAPITAL STOCK
69. Issue and Stock Options. Subject to all provisions contained in the Articles
of the Corporation or in a Unanimous Shareholders Agreement limiting the
allocation or issue of shares of the capital stock of the Corporation, the
directors may accept subscriptions for, allot, distribute, issue, in whole or in
part, the unissued shares of the Corporation, grant options thereon or otherwise
dispose thereof to any person, corporation, company, body corporate or other
entity, upon the conditions and for the lawful consideration in compliance with
the Articles
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of the Corporation which is determined by the directors, without any requirement
to offer such unissued shares to persons who are already shareholders rateably
to the shares held by them.
70. Share Certificates and Share Transfers. Certificates representing the shares
of the capital stock of the Corporation shall bear the signature of the
President or a Vice-President and that of the Secretary or an Assistant
Secretary. Such signatures may be engraved, lithographed or otherwise
mechanically reproduced. Any certificate bearing a facsimile of the signatures
of such authorized officers shall be deemed to have been signed manually,
notwithstanding the fact that the deemed signatory has since ceased to be an
officer of the Corporation.
71. Securities Register. A central securities register shall be maintained by
the Corporation or its agent at the registered office or at any other place in
Canada designated by the directors. The directors may from time to time provide
that one (1) or more branch securities registers shall be maintained at such
places within Canada or elsewhere as may be designated by a resolution and may
appoint officers or agents to maintain the same and to effect and record therein
transfers of shares of the capital stock of the Corporation.
72. Lost or Destroyed Certificates. The Board of Directors may, upon conditions
it shall establish, direct that one or more new certificates of shares may be
issued to replace any certificate or certificates of shares theretofore issued
by the Corporation that have been worn out, lost, stolen, or destroyed, and the
Board of Directors, when authorizing the issuance of such new certificate or
certificates, may, in its discretion, and as a condition precedent thereto,
require the owner of the worn-out, lost, stolen or destroyed certificate or
certificates or his legal representatives to give to the Corporation, a bond in
such sum as it may direct, as indemnity against any claim that may be made
against them for or in respect of the shares represented by such certificates
alleged to have been worn out, lost, stolen or destroyed.
DIVIDENDS
73. Dividends. The Board of Directors may, periodically and in compliance with
the law, declare and pay dividends to the shareholders, in accordance with their
respective rights.
The Board of Directors may stipulate that a dividend be payable, in whole
or in part, in shares of the Corporation.
A transfer of shares shall not transfer the right to the dividends
declared thereon before the registration of the transfer of shares. When two (2)
or more persons are registered as joint holders of one share, each of them may
give a valid receipt for any dividend payable or paid on such share.
FISCAL YEAR AND AUDIT
74. Fiscal Year. The fiscal year of the Corporation shall be determined by the
Board of Directors.
75. Audit. The shareholders, at each annual meeting, shall appoint an Auditor,
who shall hold such office until the next annual meeting or until a successor
has been appointed, unless he dies or resigns or his position otherwise becomes
vacant. At least once in every fiscal year such
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Auditor shall examine the accounts of the Corporation and the financial
statements to be presented at the annual meeting and shall report thereon to the
shareholders. The remuneration of the Auditor shall be fixed by the shareholders
or, if not so fixed, by the Board of Directors.
The Auditor shall be independent of the Corporation, of its affiliates, or
the directors or officers of the Corporation or its affiliates in accordance
with the Act. The shareholders may remove the Auditor from office at any time at
a special meeting. A vacancy created by the removal of the Auditor may be filled
at the meeting at which the Auditor is removed or, if not so filled, may be
filled by the Board of Directors. Any other vacancy which may occur shall be
filled by the directors in accordance with Section 166 of the Act.
The shareholders may decide not to appoint an auditor for any fiscal year,
by resolution receiving the consent of all the shareholders including those who
otherwise are not qualified to vote. The resolution shall be valid only until
the next annual meeting.
CORPORATION'S REPRESENTATION FOR CERTAIN PURPOSES
76. Declaration. The President, the Chairperson of the Board of Directors, any
Vice-President, the Managing Director, the General Manager, the Comptroller, the
Secretary and the Treasurer and each of them and, with the authorization of the
Board of Directors, any other officer, employee or person shall be authorized
and empowered to answer for the Corporation to all writs, orders or examinations
upon articulated facts issued by any court and to declare for and on behalf of
the Corporation any answer to writs of attachment by way of garnishment in which
the Corporation is garnishee and to sign all affidavits and sworn declarations
in connection therewith or any and all judicial proceedings to which the
Corporation is a party and to make demands for assignment of property or
petition for winding-up or receivership orders upon any debtor of the
Corporation and to attend and vote at all meetings of creditors of the
Corporation's debtors and grant proxies in connection therewith.
77. Representation at Meetings. The President, the Chairperson of the Board of
Directors, any Vice-President, the Managing Director, the General Manager, the
Comptroller, the Secretary and the Treasurer or any one of them or any other
officer or person authorized by the Board of Directors shall represent the
Corporation and attend and vote at any and all meetings of shareholders or
members of any entity in which the Corporation holds shares or is otherwise
interested, and any action taken or vote cast by them at any such meeting shall
be deemed to be the act or vote of the Corporation.
78. Signature of Documents. Contracts, documents, written acts, including
discharges and releases, requiring the signature of the Corporation may be
validly executed by the President alone, or by any two of the following persons,
any Vice-President, the Managing Director, the General Manager, the Secretary
and the Treasurer, acting jointly, and hence be binding on the Corporation. The
Board of Directors may also designate any other person to execute, alone or in
conjunction with one or more other persons, and to deliver on behalf of the
Corporation all contracts, documents and written acts, and such authorization
may be given by resolution in general or specific terms.
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79. Declarations in the Register. Declarations to be filed with The Enterprises
Registrar in accordance with the Act respecting the legal publicity of sole
proprietorships, partnerships and legal persons shall be signed by the
President, any director of the Corporation or any other person authorized for
such purpose by resolution of the Board of Directors. Any director having ceased
to hold such office as a result of his resignation, removal or otherwise shall
be authorized to sign on behalf of the Corporation and file an amending
declaration to the effect that he has ceased to be a director, from fifteen (15)
days after the date of such cessation, unless he receives proof that the
Corporation has filed such a declaration.
MISCELLANEOUS PROVISIONS
80. Conflict with the Articles. In the event of conflict between the provisions
of a by-law and those of the Articles, the latter shall prevail.
81. Amendments. The Board of Directors is empowered to adopt, abrogate or
modified a by-law, but these measures apply only until the next annual or
special meeting of shareholders. If the adoption, abrogation or modification is
not confirmed or modified by Ordinary Resolution during the annual or special
meeting, it will cease to apply, but only from this date. Any shareholder shall,
according to Section 137 of the Act, propose the adoption, modification or
abrogation of a by-law during an annual meeting.
/s/ Steven G. Segal
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Steven G. Segal
President
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