1
EXHIBIT 3.13
BYLAWS OF
BMG North America Limited
BY-LAW NO. 1
a by-law relating generally to the
transaction of the business and affairs of
827064 ONTARIO LIMITED
(the "Corporation")
DEFINITIONS AND INTERPRETATION
1. In this by-law:
"Act" means the Business Corporations Act, 1982 and the regulations
thereunder, as amended from time to time, or any successor Act or
regulations thereto, as the case may be;
"Board" means the board of directors of the Corporation;
"meetings of shareholders" includes annual and special meetings.
Unless it is otherwise provided for herein, any other words and expressions
used in this by-law have the meaning attributed thereto in the Act.
INTERPRETATION
2. Words importing the singular number only shall include, the plural and
vice versa; words importing the masculine gender shall include the
feminine and neuter genders and vice versa.
MEETINGS OF SHAREHOLDERS
3. ANNUAL MEETING - If required, the annual meeting of the shareholders shall
be held at the time and place determined by the Board, or failing it, subject
to the Act, by the president, or failing him, by the secretary, for the purpose
of hearing and receiving the reports and statements required by the Act to be
read or laid before the shareholders of the Corporation at an annual meeting,
electing directors, appointing auditors, if any, and fixing or authorizing the
Board to fix the auditor's remuneration and for the transaction of such other
business as may properly be brought before the meeting.
2
- 2 -
4. SPECIAL MEETING - Subject to the Act, the Board, the president or the
secretary may at any time call a special meeting of the shareholders of the
Corporation to be held at the time and place determined by the Board or the
person calling the meeting.
5. NOTICES - Notice of the time and place of each meeting of shareholders
shall be sent not less than 10 nor more than 50 days before the date of
the meeting to each director, to the auditor and to each shareholder entitled
to vote at the meeting. Notice of a meeting of shareholders called for any
purpose other than consideration of the minutes of an earlier meeting,
financial statements and auditors's report, election of directors and
reappointment of the incumbent auditor shall state the nature of such business
in sufficient detail to permit the shareholder to form a reasoned judgment
thereon and shall state the text of any special resolution to be submitted to
the meeting.
6. PERSONS ENTITLED TO BE PRESENT - The only persons entitled to attend a
meeting of shareholders are those persons entitled to vote thereat, the
directors of the Corporation, the auditor of the Corporation, if any, and
others who are entitled or required under any provision of the Act or the
by-laws of the Corporation 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.
7. QUORUM - Holders of 51% of the shares entitled to vote at a meeting of
shareholders, whether present in person or represented by proxy, constitute a
quorum. If a quorum is present at the opening of a meeting of shareholders,
the shareholders present may proceed with the business of the meeting
notwithstanding that a quorum is not present throughout the meeting.
8. PROXIES -
(a) A shareholder entitled to vote at a meeting of shareholders may by
means of a proxy appoint a proxyholder or one or more alternate
proxyholders, who are not required to be shareholders, to attend and act
at the meeting in the manner and to the extent authorized by the proxy
and with the authority conferred by the proxy.
(b) A proxy shall be executed by the shareholder or by his attorney
authorized in writing or, if the shareholder is a body corporate, by an
officer or attorney thereof duly authorized.
3
- 3 -
9. REPRESENTATIVE - If a body corporate or association is a shareholder of
the Corporation, the Corporation shall recognize any individual authorized by a
resolution of the board of directors or governing body of the body corporate or
association to represent it at meetings of shareholders of the Corporation. An
- -individual so authorized may exercise on behalf of the body corporate or
association he represents all the powers it could exercise if it were an
individual shareholder.
10. SCRUTINEERS - At each meeting of the shareholders one or more scrutineers
may be appointed to serve at the meeting by. a resolution of the meeting or by
the chairman with the consent of the meeting. Such scrutineers need not be
shareholders of the Corporation.
11. VOTES TO GOVERN - Subject to the Act or the articles of the Corporation or
a unanimous shareholder agreement, at all meetings of shareholders, all
questions proposed for the consideration of the shareholders shall be
determined by a majority of the votes cast on the question.
12. VOTING -
(a) Voting at a meeting of shareholders shall be by show of hands except
where a ballot is demanded by a shareholder or proxyholder entitled to
vote at the meeting. A shareholder or proxyholder may demand a ballot
either before or after any vote by show of hands. Upon a show of hands
every person present and entitled to vote has one vote. Whenever a vote
by show of hands has been taken upon a motion, unless a ballot thereon is
demanded, a declaration by the chairman of the meeting that the vote upon
the motion has been carried or carried by a particular majority or not
carried and an entry to that effect in the minutes of the meeting is
prima facie evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the motion, and
the result of the vote so taken is the decision of the shareholders of
the Corporation upon the motion. A demand for a ballot may be withdrawn
at any time prior to the taking of the ballot.
(b) Upon a ballot each shareholder who is present or represented by proxy
is entitled, in respect of the shares which he is entitled to vote at the
meeting upon
4
- 4 -
the motion, to that number of votes provided by the Act or
the articles in respect of those shares and the result of the ballot is
the decision of the shareholders of the Corporation upon the motion.
13. CHAIRMAN - If the chairman of the board, if one is appointed, the
president or any vice-president fails to assume the chairmanship of a
meeting in accordance with Paragraphs 21, 22 and 23 of this by-law within 15
minutes after the time appointed for the holding of the meeting, the persons
present at the meeting and entitled to vote thereat shall choose a person from
their number to be the chairman.
DIRECTORS
14. QUORUM - Subject to the articles of the Corporation, a quorum at any
meeting of directors is:
(a) where the articles set out the number of directors, a majority of
that number; or
(b) where the articles set out the minimum and maximum number of
directors, a majority of the number of directors which then constitutes
the Board.
15. ELECTION AND TERM - Shareholders of the Corporation shall, at the first
meeting of shareholders and at each succeeding annual meeting of shareholders,
elect directors to hold office for a term expiring at the first annual meeting
of shareholders following their election.
16. CALLING OF MEETINGS - The Board, a quorum of the directors, the president
or the secretary may at any time call a meeting of the Board to be held at the
time and place determined by the Board or by the person calling the meeting.
Meetings of the Board may be held at any place within or outside Ontario. In
any financial year of the Corporation, a majority of the meetings of the Board
need not be held within Canada. Notice of every meeting so called shall be
given to each director by sending the notice not less than 2 days before the
day on which the meeting is to be held. A director may in any manner and at
any time waive notice of a meeting of directors and attendance of a director at
a meeting of directors is a waiver of notice of the meeting, except where a
director 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.
5
- 5 -
If a quorum of directors is present, each newly elected Board may without
notice hold its first meeting for the purposes of its organization and the
election and appointment of officers immediately following the meeting of
shareholders at which such Board was elected.
17. CHAIRMAN - If the chairman of the board, if one is appointed, the
president or any vice-president fails to assume the chairmanship of a
meeting in accordance with Paragraphs 21, 22 and 23 of this by-law 15 minutes
after the time appointed for holding the meeting, the persons present at the
meeting and entitled to vote thereat shall choose one of their number to be
chairman.
18. NOTICES - Notice of a meeting of directors need not specify the purpose of
or the business to be transacted at the meeting except where the Act requires
such purpose or business to be specified.
19. VOTES TO GOVERN - At all meetings of the Board every question shall be
decided by a majority of the votes cast on the question and in the case of an
equality of votes the Chairman of the meeting shall not be entitled to a second
or casting vote.
OFFICERS
20. APPOINTMENT - Subject to the articles and any unanimous shareholder
agreement, the Board may from time to time appoint a president, one or more
vice-presidents (to which title may be added words indicating seniority or
function), a secretary, a treasurer and such other officers as the Board may
determine, including one or more assistants to any of the officers so
appointed. The Board may specify the duties of and, in accordance with this
by-law and subject to the provisions of the Act, delegate to such officers
powers to manage the business and affairs of the Corporation. Two or more
offices of the Corporation may be held by the same person.
21. CHAIRMAN OF THE BOARD - The Board may from time to time appoint a chairman
of the board who shall be a director. If appointed, the chairman shall,
subject to the provisions of the Act, the articles or any unanimous shareholder
agreement, preside at all meetings of the shareholders and of the Board and
have such other powers and duties as the Board may specify. During the absence
or disability of the chairman of the board, his
6
- 6 -
duties shall be performed and his powers exercised by the managing
director, if any, or by the president.
22. PRESIDENT - Subject to any duties imposed upon the chairman of the board,
if one is appointed, the president shall preside at all meetings of the
shareholders and of the Board and is responsible for the general supervision,
subject to the authority of the Board, of the business and affairs of the
Corporation.
23. VICE-PRESIDENT - During the absence or inability of the president to act,
his duties shall be performed and his powers shall be exercised by the
vice-president, if any, or if there is more than one, by the vice-president
selected by the Board. A vice-president shall also perform such duties and
exercise such powers as the president or the Board may from time to time
delegate to him.
24. SECRETARY - The secretary shall:
(a) give or cause to be given all notices required to be given to
shareholders, directors, auditors and members of committees;
(b) attend all meetings of directors, shareholders and committees and
enter or cause to be entered in books kept for that purpose minutes of
all proceedings at such meetings; and
(c) be the custodian of all books, papers, records, documents, corporate
seals, if any, and other instruments of the Corporation save those
entrusted by resolution of the Board to the custody of the treasurer or
other officer or agent of the corporation.
The secretary may delegate his duties to a nominee from time to time.
25. TREASURER - The treasurer shall keep or cause to be kept full and accurate
books of account in which shall be recorded all receipts and disbursements of
the Corporation; control the deposit of money, the safekeeping of securities
and the disbursement of funds; and render to the Board whenever required of
him, an account of the financial affairs of the Corporation.
7
- 7 -
26. POWERS AND DUTIES OF OTHER OFFICERS - The powers and duties of all other
officers shall be such as the terms of their engagement call for or as the
Board or the president may specify. Any of the powers and duties of an officer
to whom an assistant has been appointed may be exercised and performed by such
assistant unless the Board or the president otherwise directs.
27. VARIATION OF POWERS AND DUTIES - The Board may from time to time and
subject to the provisions of the Act, vary, add to or limit the powers and
duties of any officer.
28. TERM OF OFFICE - The terms of employment of the officers shall be settled
by the Board. In the absence of written agreement to the contrary, each
officer holds office until he resigns, his successor is appointed or he is
removed by the Board at its pleasure.
29. FIDELITY BONDS - The Board may at any time require any officer, employee
or agent of the Corporation to furnish a bond for the faithful
discharge of his duties, in such form and with such surety as the Board
determines.
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
30. LIMITATION OF LIABILITY - No director or officer 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 for or on behalf of the
corporation, or for the insufficiency or deficiency of any security in or upon
which any of the monies 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 monies, 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; provided that nothing herein shall relieve any director or officer
from the duty to act in accordance with the Act and the regulations thereunder
or from liability for any breach thereof.
8
- 8 -
31. INDEMNITY - Subject to the Act, the Corporation shall indemnify a director
or officer, a former director or officer, or a person who acts or acted at the
Corporation's request as a director or officer of a body corporate of which the
Corporation is or was a shareholder or creditor (or a person who undertakes or
has undertaken any liability on behalf of the Corporation or any such body
corporate) and his heirs and legal representatives, against all costs, charges
and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of the Corporation or such body
corporate, if:
(a) he acted honestly and in good faith with a view to the best interests
of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
BANKING ARRANGEMENTS, CONTRACTS, ETC.
32. BANKING ARRANGEMENTS - All funds of the Corporation shall be deposited in
its name in such account or accounts as are designated by the Board.
Withdrawals from such account or accounts and the making, signing, drawing,
accepting, endorsing, negotiating, lodging, depositing or transferring of any
cheques, promissory notes, drafts, acceptances, bills of exchange and orders
for the payment of money with the institution maintaining such account or
accounts shall be made by such person or persons as the Board from time to time
determines.
33. EXECUTION OF INSTRUMENTS - Deeds, transfers, assignments, contracts and
any other documents of the Corporation, shall be signed by any director.
The corporate seal shall be affixed to such instruments as require the
same.
Notwithstanding any provision to the contrary contained in the by-laws of
the Corporation, the Board may at any time or times direct the manner in which
and the person or persons by whom any particular deed, transfer, assignment,
contract or other document, or any class of deeds, transfers, assignments,
contracts or other documents, shall be signed.
9
- 9 -
SHARES
34. SHARE CERTIFICATES -
(a) Every shareholder is entitled, at his option, to a share certificate
or a non-transferable written acknowledgment of his right to obtain a
share certificate from the Corporation in respect of the shares of the
Corporation held by him, but the Corporation is not bound to issue more
than one share certificate in respect of a share or shares held jointly
by several persons, and delivery of a share certificate to one of several
joint shareholders is sufficient delivery to all.
(b) A share certificate shall be manually signed by at least one director
or officer of the Corporation or by or on behalf of a registrar, transfer
agent, branch transfer agent or other authenticating agent of the
Corporation.
(c) Notwithstanding the foregoing, a fractional share certificate need
not be manually signed.
35. REPLACEMENT OF SHARE CERTIFICATES - Where the registered holder of a share
certificate claims that the share certificate has been lost, apparently
destroyed or wrongfully taken, the Corporation shall issue a new share
certificate in place of the original share certificate if the owner:
(a) so requests before the Corporation has notice that the share
certificate has been acquired by a bona fide purchaser;
(b) files with the Corporation an indemnity bond sufficient in the
Corporation's opinion to protect the Corporation and any transfer agent,
registrar or other agent of the Corporation from any loss that it or any
of them may suffer by complying with the request to issue a new share
certificate; and
(c) satisfies any other reasonable requirements imposed by the
Corporation.
36. The Corporation has a lien on each share registered in the name of a
shareholder or his legal representative for a debt of that shareholder to the
Corporation.
10
- 10 -
37. ENFORCEMENT OF LIENS - If any shareholder (the "Defaulting
Shareholder") defaults in payment of any monies owing by such shareholder to
the Corporation, which default continues for a period of 30 days after notice
in writing of such default has been given by the Corporation to such
shareholder, the Corporation may sell all or any part of the shares then
registered in the name of the Defaulting Shareholder (the "shares") at a bona
fide public or private sale or auction, at which sale or auction any director,
officer or shareholder of the Corporation may purchase the shares or the
Corporation may purchase the shares free of any right or equity of redemption,
which right or equity is hereby expressly waived. The terms and manner of
auction or sale shall be at the sole discretion of the Corporation. The
Corporation may accept any offer which it in its absolute discretion considers
advisable upon such terms, whether cash or credit or partly cash and partly
credit, as it in its discretion considers advisable. Notice of any public or
private sale or auction shall be given to the Defaulting Shareholder at least
15 days prior to the date on which such sale is to be held. The proceeds of
such sale shall be used and applied firstly to the cost and expense of such
sale incurred by the Corporation, including legal fees, secondly to reimburse
the Corporation for out-of-pocket expenses incurred in connection with the sale
and thirdly, for the payment in full of the monies due to the Corporation from
any Defaulting Shareholder. The balance of the proceeds, if any, shall be paid
to the Defaulting Shareholder. If the proceeds of the sale are insufficient to
pay the amount due to the Corporation, then the Defaulting Shareholder shall
remain liable the Corporation for any such deficiency. The rights of the
Corporation hereunder shall be in addition to any rights at law available to
the Corporation for the enforcement of its liens or for the collection of the
debt of the Defaulting Shareholder.
CORPORATE DISTRIBUTIONS
38. DIVIDENDS - A dividend payable in cash shall be paid by cheque to the
order of each registered holder of shares of the class in respect of
which such dividend has been declared as at the record date for the
determination of shareholders entitled to receive such dividend and delivered
to each such holder or mailed by ordinary mail, postage prepaid, to such holder
at his last address appearing on the securities register of the Corporation
unless such holder otherwise directs in writing. In the case of joint holders
the cheque shall, unless such joint holders otherwise direct in writing, be
made payable to the order of all of such joint holders and if more than one
address appears on the securities register of the Corporation in respect of
such joint holding the cheque shall be delivered or mailed to the first
11
- 11 -
address so appearing. The mailing or delivery of such cheque as
aforesaid shall satisfy and discharge all liability for the dividend to the
extent of the sum represented thereby, unless such cheque be not paid at par in
Canadian funds on due presentation at the municipality in which the registered
office of the Corporation is situate or at any other place where it is by its
terms payable. In the event of non-receipt of any dividend cheque by the
person to whom it is mailed or delivered as aforesaid, the Corporation shall
issue to such person a replacement cheque for a like amount upon being
furnished with such indemnity and evidence of non-receipt as the Board may from
time to time prescribe, whether generally or in any particular case.
39. JOINT SHAREHOLDERS - If two or more persons are registered as joint
holders of any share, any one of such persons may give effectual
receipts for the certificates issued in respect thereof and for any dividend,
bonus, return of capital or other money payable or warrant issuable in respect
of such share.
NOTICE
40. METHOD OF GIVING - A notice or document required by the Act, the
regulations, the articles or the by-laws to be sent to a shareholder or
director of the Corporation may be sent' by prepaid mail addressed to, or may
be delivered personally to:
(a) the shareholder at his latest address shown in the records of the
Corporation or its transfer agent; and
(b) the director at his latest address as shown in the records of the
Corporation or in the most recent notice filed under the Corporations
Information Act, whichever is the more current.
41. WAIVER OF NOTICE - Where a notice or document is required by the Act or
the regulations or by any by-law to be sent, the notice may be waived
or the time for the notice may be waived or abridged at any time with the
consent in writing of the person entitled thereto.
42. OMISSIONS AND ERRORS - The accidental omission to give any notice to any
shareholder, director, officer or auditor or the non-receipt of any notice by
any shareholder, director, officer or auditor or any error in any notice not
affecting the
12
- 12 -
substance thereof shall not invalidate any action taken at any meeting held
pursuant or otherwise founded thereon.
43. NOTICE TO JOINT SHAREHOLDERS - All notices with respect to any shares
registered in more than one name may, if more than one address appears on the
books of the Corporation in respect to such joint holding, be given to such
joint shareholders at the first address so appearing, and notice so given shall
be sufficient notice to all the holders of such shares.
44. PERSONS ENTITLED BY DEATH OR OPERATION OF LAW - Every person who, by
operation of law, transfer, death of a shareholder or by any other means
whatsoever, becomes entitled to any share. or shares shall be bound by every
notice in respect of such share or shares which is duly given to the person
from whom he derived his title to such share or shares until such time as his
name and address are entered on the books of the Corporation (whether it be
before or after the event upon which he became so entitled).
45. SIGNATURE OF NOTICE - The signature of any notice to be given by the
Corporation may be written or printed or partly written and partly printed.
SHAREHOLDERS' AGREEMENT
46. Notwithstanding anything contained in this by-law and any amendment or
supplement hereto, the provisions of-this by-law and any amendment or
supplement hereto shall be amended to the extent necessary to give effect to
the provisions of any shareholders' agreement in force between the Corporation
and its shareholders, and to the extent that there is any conflict between the
provisions of this by-law and any amendment or supplement hereto and any such
shareholders, agreement, the provisions of such shareholders, agreement shall
prevail.
MADE by the Board the 21st day of March, 1989.
/s/ Leo Joseph Dion /s/ Leo Joseph Dion
- -------------------------------- -------------------------------------
President - Leo Joseph Dion Secretary - Leo Joseph Dion
CONFIRMED by the shareholder in accordance with the Act the 21st day of
March, 1989.
/s/ Leo Joseph Dion
----------------------------------------
Secretary - Leo Joseph Dion