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EXHIBIT 3.2
PCI CHEMICALS CANADA INC.
PRODUITS CHIMIQUES PCI CANADA INC.
BY-LAW NO. ONE
A by-law relating generally to the regulation of the affairs of PCI
CHEMICALS CANADA INC. - PRODUITS CHIMIQUES PCI CANADA INC.
BE IT ENACTED AND IT IS HEREBY ENACTED as By-Law No. One of CHEMICALS
CANADA INC. - PRODUITS CHIMIQUES PCI CANADA INC. (hereinafter called the
"CORPORATION") as follows:
DEFINITIONS
1. In this by-law and all other by-laws of the Corporation, unless the
context otherwise specifies or requires:
(a) "ACT" means the Business Corporations Act, Statutes of New
Brunswick, 1981, c. B-9.1, as from time to time amended, and
every statute that may be substituted therefor and, in the
case of such amendment or substitution, any reference in the
by-laws of the Corporation shall be read as referring to the
amended or substituted provisions therefor;
(b) "ARTICLES" means the articles, as from time to time amended,
of the Corporation;
(c) "BY-LAW" means any by-law of the Corporation from time to time
in force and effect;
(d) "DIRECTOR" means an individual occupying the position of
director of the Corporation and "directors", "board of
directors" and "board" includes a single director;
(a) "UNANIMOUS SHAREHOLDER AGREEMENT" means an agreement as
described in subsection 99(2) of the Act or a declaration of a
shareholder described in subsection 99(3) of the Act;
(f) 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;
words importing persons shall include bodies corporate,
corporations, companies, partnerships, syndicates, trusts and
any number or aggregate of individuals;
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(g) the headings used in any by-law are inserted for reference
purposes only and are not to be considered or taken into
account in construing the terms or provisions thereof or to be
deemed in any way to clarify, modify or explain the effect of
any such terms or provisions; and
(h) any term contained in any by-law which is defined in the Act
shall have the meaning given to such term in the Act.
REGISTERED OFFICE
2. The Corporation may from time to time by resolution of the board of
directors change the location of the registered office of the Corporation to
another place within New Brunswick.
3. The Corporation may have one or more corporate seals which shall be
such as the board of directors may adopt by resolution from time to time,
DIRECTORS
4. Number and Powers. There shall be a board of directors consisting of
such fixed number, or minimum and maximum number, of directors as may be set
out in the articles or as may be determined as prescribed by the articles, or
failing that, as specified by by-law. Subject to any unanimous shareholder
agreement, the directors shall manage the business and affairs of the
Corporation and may exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation and are not by the Act, the
articles, the by-laws, any special resolution of the Corporation, any unanimous
shareholder agreement or by statute expressly directed or required to be done
in some other manner.
5. Vacancies. If the number of directors is increased, the resulting
vacancies shall be filled at a meeting of shareholders duly called for that
purpose. Notwithstanding the provisions of paragraph 7 of this by-law and
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 pursuant to subsection 69(2) of the Act. Where
a
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vacancy or vacancies exist in the board, the remaining directors may exercise
all of the powers of the board so long as a quorum remains in office.
6. Duties. Every director and officer of the Corporation in exercising
his powers and discharging his duties shall
(a) act honestly and in good faith; and
(b) exercise the care, diligence and skill that a reasonably prudent
person would exercise in comparable circumstances, in the best
interests of the Corporation.
7. Qualification. Every director shall be an individual nineteen (19) or
more years of age and no one who is of unsound mind and has been so found by a
court in Canada or elsewhere or who has the status of a bankrupt or who has
been convicted of an offence under the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as amended from time to time, or the criminal
law of any jurisdiction outside of Canada, in connection with the promotion,
formation or management of a corporation or involving fraud (unless three (3)
years have elapsed since the expiration of the period fixed for suspension of
the passing of sentence without sentencing or since a fine was imposed, or
unless the term of imprisonment and probation imposed, if any, was concluded,
whichever is the latest, but the disability imposed hereby ceases upon a pardon
being granted) shall be a director.
8. Term of Office. A director's term of office shall be from the meeting
at which he is elected or appointed until the annual meeting next following or
until his successor is elected or appointed, or until, if earlier, he dies or
resigns, or is removed or disqualified pursuant to the provisions of the Act.
9. Vacation of Office. The office of a director shall ipso facto be
vacated if
(a) he dies;
(b) by notice in writing to the Corporation he resigns his office
and such resignation, if not effective immediately, becomes
effective in accordance with its terms;
(c) he is removed from office in accordance with section 67 of the
Act; or
(d) he ceases to be qualified to be a director.
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10. Election and Removal. (1) Directors shall be elected by the
shareholders by ordinary resolution in general meeting on a show of hands
unless a poll is demanded and if a poll is demanded such election shall be by
ballot. All the directors then in office shall cease to hold office at the
close of the meeting of shareholders at which directors are to be elected. A
director if qualified, is eligible for re-election.
(2) Subject to sections 65 and 67 of the Act, the shareholders of
the Corporation may by ordinary resolution at a special meeting remove any
director before the expiration of his term of office and may, by a majority of
the votes cast at the meeting, elect any person in his stead for the remainder
of his term.
(3) Each shareholder entitled to vote at an election of directors
has the right to cast a number of votes equal to the number of votes attached
to the shares held by him multiplied by the number of directors to be elected,
and he may cast all such votes in favour of one candidate or distribute them
among the candidates in any manner.
(4) A separate vote of shareholders shall be taken with respect to
each candidate nominated for director unless a resolution is passed unanimously
permitting two (2) or more persons to be elected by a single resolution.
(5) If a shareholder has voted for more than one candidate without
specifying the distribution of his votes among the candidates, he shall be
deemed to have distributed his votes equally among the candidates for whom he
voted.
(6) If the number of candidates nominated for director exceeds the
number of positions to be filled, the candidates who receive the least number
of votes shall be eliminated until the number of candidates remaining equals
the number of positions to be filled.
(7) A retiring director shall retain office until the adjournment
or termination of the meeting at which his successor is elected unless such
meeting was called for the purpose of removing him from office as a director in
which case the director so removed shall vacate office forthwith upon the
passing of the resolution for his removal.
11. Validity of Acts. An act by a director or officer is valid
notwithstanding an irregularity in his election or appointment or a defect in
his qualification.
MEETINGS OF DIRECTORS
12. Place of Meeting. Subject to the articles, meetings of directors may
be held at any place within or outside New Brunswick as the directors may from
time to time
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determine or as the person convening the meeting may give notice. A meeting of
the directors may be convened by the chairman of the board (if any), the
president or any director at any time. The secretary shall upon direction of
any of the foregoing officers or director convene a meeting of the directors.
13. Notice. (1) Notice of the time and place for the holding of any such
meeting shall be delivered, mailed, telegraphed, cabled, telexed or transmitted
by facsimile to each director at his latest address as shown on the records of
the Corporation not less than two (2) days (exclusive of the day on which the
notice is delivered, mailed, telegraphed, cabled, telexed or transmitted by
facsimile but inclusive of the day for which notice is given) before the date
of the meeting, provided that meetings of the directors may be held at any time
without notice if all the directors have waived notice.
(2) For the first meeting of the board of directors to be held immediately
following the election of directors at an annual or special meeting of the
shareholders, no notice of such meeting need be given to the newly elected or
appointed director or directors in order for the meeting to be duly
constituted, provided a quorum of the directors is present.
(3) A notice of a meeting of directors shall specify any matter referred
to in subsection 73(2) of the Act that is to be dealt with at the meeting but,
unless a by-law otherwise provides, need not otherwise specify the purpose of
or the business to be transacted at the meeting.
14. Waiver of Notice. Notice of any meeting of the directors or any
irregularity in any meeting or in the notice thereof may be waived by any
director in writing or by telegram, cable, telex or facsimile transmission
addressed to the Corporation or in any other manner, and such waiver may be
validly given either before or after the meeting to which such waiver relates.
The 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.
15. Telephone Participation. A director may participate in a meeting of
directors or of a committee of directors by means of such telephone or other
communication facilities that permit all persons participating in the meeting
to hear each other, and a director participating in such a meeting by such
means shall be deemed to be present at that meeting.
16. Adjournment. Any meeting of the directors may be adjourned from time
to time by the chairman of the meeting, with the consent of the meeting, to a
fixed time and place and no notice of the time and place for the continuance of
the adjourned meeting
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need be given to any director if the time and place of the adjourned meeting is
announced at the original meeting. Any adjourned meeting shall be duly
constituted if held in accordance with the terms of the adjournment and a
quorum is present thereat. The directors who formed a quorum at the original
meeting are not required to form the quorum at the adjourned meeting. If there
is no quorum present at the adjourned meeting, the original meeting shall be
deemed to have terminated forthwith after its adjournment.
17. Quorum and Voting. Subject to the articles, a majority of directors
shall constitute a quorum for the transaction of business at any meeting of
directors. No business shall be transacted by the directors except at a meeting
of directors at which a quorum of the board is present. Questions arising at
any meeting of the directors shall be decided by a majority of votes cast.
Where the Corporation has only one director, that director may constitute a
meeting.
18. Resolution in lieu of meeting. A resolution in writing, signed by all
the directors or signed counterparts of such resolution by all the directors
entitled to vote on that resolution at a meeting of directors or a committee of
directors, is as valid as if it had been passed at a meeting of directors or
committee of directors duly called, constituted and held. A copy of every such
resolution or counterpart thereof shall be kept with the minutes of the
proceedings of the directors or such committee of directors.
REMUNERATION OF DIRECTORS
19. Subject to the articles or any unanimous shareholder agreement, the
remuneration to be paid to the directors shall be such as the board of
directors shall from time to time determine and such remuneration shall be in
addition to the salary paid to any officer of the Corporation who is also a
member of the board of directors. The directors may also by resolution award
special remuneration to any director undertaking any special services on the
Corporation's behalf other than the routine work ordinarily required of a
director by the Corporation. The confirmation of any such resolution or
resolutions by the shareholders shall not be required. The directors shall also
be entitled to be paid their travelling and other expenses properly incurred by
them in connection with the affairs of the Corporation.
SUBMISSION OF CONTRACTS OR TRANSACTIONS
TO SHAREHOLDERS FOR APPROVAL
20. The directors in their discretion may submit any contract, act or
transaction for approval, ratification or confirmation at any annual meeting of
the shareholders or at any
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special meeting of the shareholders called for the purpose of considering the
same and any contract, act or transaction that shall be approved, ratified or
confirmed by resolution passed by a majority of the votes cast at any such
meeting (unless any different or additional requirement is imposed by the Act
or by the articles or any other by-law) shall be as valid and as binding upon
the Corporation and upon all the shareholders as though it had been approved,
ratified and/or confirmed by every shareholder of the Corporation.
FOR THE PROTECTION OF DIRECTORS AND OFFICERS
21. No director or officer for the time being of the Corporation shall be
liable for the acts, receipts, neglects or defaults of any other director or
officer or employee of the Corporation or for joining in any receipt or 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 of directors 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 or belonging to the Corporation shall be placed out or invested or for any
loss or damage arising from the bankruptcy, insolvency or tortious act of any
person, firm or corporation including any person, firm or corporation with whom
or which any moneys, securities or effects of the Corporation shall be lodged
or deposited or for any loss, conversion, misapplication or misappropriation of
or any damage resulting from any dealings with any moneys, securities or other
assets belonging to the Corporation or for any other loss, damage or misfortune
whatever which may happen to the Corporation in the execution of the duties of
his respective office of trust or in relation thereto, unless the same shall
happen by or through his failure to exercise the powers and to discharge the
duties of his office honestly, in good faith with a view to the best interests
of the Corporation, and in connection therewith to exercise the care, diligence
and skill that a reasonably prudent person would exercise in comparable
circumstances, provided that nothing herein contained shall relieve a director
or officer from the duty to act in accordance with the Act or regulations made
thereunder or relieve him from liability for a breach thereof. The directors
for the time being of the Corporation shall not be under any duty or
responsibility in respect of any contract, act or transaction whether or not
made, done or entered into in the name or on behalf of the Corporation, except
such as shall have been submitted to and authorized or approved by the board of
directors. If any director or officer of the Corporation shall be employed by
or shall perform services for the Corporation, the fact of his being a
shareholder, director or officer of the Corporation shall not disentitle such
director or officer or such firm or body corporate, as the case may be, from
receiving proper remuneration for such services.
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INDEMNITIES TO DIRECTORS AND OTHERS
22. Subject to section 81 of the Act, except in respect of an action by or
on behalf of the Corporation or Another Body Corporate (as hereinafter defined)
to procure a judgement in its favor, the Corporation shall indemnify each
director and officer of the Corporation and each former director and officer of
the Corporation and each person who acts or acted at the Corporation's request
as a director or officer of Another Body Corporate, and his heirs and legal
representatives, against all costs, charges and expenses, including any 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 Another Body Corporate, as the case may be, 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.
"Another Body Corporate" as used herein means a body corporate of which the
Corporation is or was a shareholder or creditor.
OFFICERS
23. Appointment of Officers. Subject to the articles or any unanimous
shareholder agreement, the directors may appoint a chairman of the board, a
president and a secretary and, if deemed advisable, may also appoint one or
more vice-presidents, a treasurer and one or more assistant secretaries and/or
one or more assistant treasurers. None of such officers, except the chairman of
the board, need be a director of the Corporation. Any two or more of such
offices may be held by the same person. In case and whenever the same person
holds the offices of secretary and treasurer he may, but need not, be known as
the secretary-treasurer. The directors may from time to time designate such
other offices and appoint such other officers, employees and agents as it shall
deem necessary who shall have such authority and shall perform such functions
and duties as may from time to time be prescribed by resolution of the
directors.
24. Remuneration and Removal of Officers. Subject to the articles or any
unanimous shareholder agreement, the remuneration of all officers, employees
and agents appointed by the directors may be determined from time to time by
resolution of the directors. The fact that any officer, employee or agent is a
director or shareholder of
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the Corporation shall not disqualify him from receiving such remuneration as
may be so determined. The directors may by resolution remove any officer,
employee or agent at any time, with or without cause.
25. Duties of Officers may be Delegated. In case of the absence or
inability or refusal to act of any officer of the Corporation or for any other
reason that the directors may deem sufficient, the directors may delegate all
or any of the powers of such officer to any other officer or to any director
for the time being.
26. Chairman of the Board. The chairman of the board (if any) shall, if
present, preside at all meetings of the director. He shall sign such
contracts, documents or instruments in writing as require his signature and
shall have such other powers and duties as may from time to time be assigned to
him by resolution of the directors.
27. President. The president shall be the chief executive officer of the
Corporation and shall exercise general supervision over the business and
affairs of the Corporation. The president, in the absence of the chairman of
the board, or if a chairman of the board be not appointed, shall preside at all
meetings of the directors, and he shall act as chairman at all meetings of the
shareholders of the Corporation; he shall sign such contracts, documents or
instruments in writing as require his signature and he shall have such other
powers and shall perform such other duties as may from time to time be assigned
to him by resolution of the directors or as are incident to his office.
28. Vice-President. The vice-president (if any) or, if more than one, the
vice-presidents in order of seniority, shall be vested with all the powers and
shall perform all the duties of the president in the absence or inability or
refusal to act of the president.
The vice-president or, if more than one, the vice-presidents in order of
seniority, shall sign such contracts, documents or instruments in writing as
require his or their signatures and shall also have such other powers and
duties as may from time to time be assigned to him or them by resolution of the
directors.
29. Secretary. The secretary shall give or cause to be given notices for
all meetings of the directors or committees thereof (if any) and of
shareholders when directed to do so, and shall have charge, subject to the
provisions of paragraphs 30 and 50 hereof, of the records referred to in
section 18 of the Act and of the corporate seal or seals (if any). He shall
sign such contracts, documents or instruments in writing as require his
signature and shall have such other powers and duties as may from time to time
be assigned to him by resolution of the directors or as are incident to his
office.
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30. Treasurer. Subject to the provisions of any resolution of the
directors, the treasurer (if any) shall have the care and custody of all the
funds and securities of the Corporation and shall deposit the same in the name
of the Corporation in such bank or banks or with such other depositary or
depositaries as the directors may by resolution direct. He shall prepare,
maintain and keep or cause to be kept adequate books of accounts and accounting
records. He shall sign such contracts, documents or instruments in writing as
require his signature and shall have such other powers and duties as may from
time to time be assigned to him by resolution of the directors or as are
incident to his office. He may be required to give such bond for the faithful
performance of his duties as the directors in their uncontrolled discretion may
require, but no director shall be liable for failure to require any such bond
or for the insufficiency of any such bond or for any loss by reason of the
failure of the Corporation to receive any indemnity thereby provided.
31. Assistant Secretary and Assistant Treasurer. The assistant secretary
or, if more than one, the assistant secretaries in order of seniority, and the
assistant treasurer or, if more than one, the assistant treasurers in order of
seniority (if any), shall respectively perform all the duties of the secretary
and treasurer, respectively, in the absence or inability to act of the
secretary or treasurer as the case may be. The assistant secretary or assistant
secretaries, if more than one, and the assistant treasurer or assistant
treasurers, if more than one, shall sign such contracts, documents or
instruments in writing as require his or their signatures respectively and
shall have such other powers and duties as may from time to time be assigned to
them by resolution of the directors.
32. Managing Director. The directors may from time to time appoint from
their number a managing director and may delegate to him any of the powers of
the directors except as provided in subsection 73(2) of the Act. The managing
director shall conform to all lawful orders given to him by the directors and
shall at all reasonable times give to the directors or any of them all
information they may require regarding the affairs of the Corporation. Any
agent or employee appointed by the managing director shall be subject to
discharge by the directors.
33. Vacancies. If the office of chairman of the board, president,
vice-president, secretary, assistant secretary, treasurer, assistant treasurer,
or any other office created by the directors pursuant to paragraph 23 hereof,
shall be or become vacant by reason of death, resignation, removal or in any
other manner whatsoever, the directors may, subject to paragraph 23 hereof,
appoint another person to fill such vacancy.
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COMMITTEES OF DIRECTORS
34. The directors may from time to time appoint from their number one or
more committees of directors consisting of one or more individuals and delegate
to such committee or committees any of the powers of the directors except as
provided in subsection 73(2) of the Act. Unless otherwise ordered by the
directors, a committee of directors shall have power to fix its quorum, elect
its chairman and regulate its proceedings. All such committees shall report to
the directors as required by them.
SHAREHOLDERS' MEETING
35. Annual Meeting. Subject to compliance with section 85 of the Act, the
annual meeting of the shareholders shall be convened on such day in each year
and at such time as the directors may by resolution determine.
36. Special Meetings. (1) Special meetings of the shareholders may be
convened by order of the chairman of the board, the president or a
vice-president or by the directors, to be held at such time and place as may be
specified in such order.
(2) Shareholders holding between them not less then ten percent (10%) of
the issued shares of the Corporation that carry the right to vote at a meeting
sought to be held may requisition the directors to call a meeting of
shareholders. Such requisition shall state the business to be transacted at
the meeting and shall be sent to each director and the registered office of the
Corporation.
(3) Except as otherwise provided in subsection 96(3) of the Act, it shall
be the duty of the directors on receipt of such requisition, to cause such
meeting to be called by the secretary of the Corporation.
(4) If the directors do not, within twenty-one (21) days after receiving
such requisition call such meeting, any shareholder who signed the requisition
may call the meeting.
37. Place of Meetings. Meetings of shareholders of the Corporation shall
be held at the registered office of the Corporation or at such other place
within New Brunswick as the directors by resolution may determine.
Notwithstanding the foregoing, a meeting of shareholders of the Corporation may
be held outside New Brunswick if all the shareholders entitled to vote at that
meeting so agree, and a shareholder who attends a meeting of shareholders held
outside New Brunswick is deemed to have so agreed except when he attends the
meeting for the express purpose of objecting to the transaction of any business
on the grounds that the meeting is not lawfully held. Notwithstanding either of
the foregoing sentences, meetings of shareholders may be held outside New
Brunswick at one or more places as specified in the articles.
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38. Notice. (1) Subject to the articles or a unanimous shareholder
agreement, a printed, written or typewritten notice stating the day, hour,
place of meeting, the general nature of the business to be transacted and, if
special business is to be transacted thereat, stating
(a) the nature of that business in sufficient detail to permit the
shareholder to form a reasoned judgment thereon; and
(b) the text, of any special resolution to be submitted to the
meeting,
shall be sent to each person who is entitled to notice of such meeting and who
on the record date for notice appears on the records of the Corporation or its
transfer agent as a shareholder and to each director of the Corporation and the
auditor of the Corporation, if any, personally, by sending such notice by
prepaid mail or in such other manner as provided by-law for the giving of
notice, not less than twenty-one (21) days nor more than fifty (50) days before
the meeting. If such notice is sent by mail it shall be addressed to the latest
address of each such person as shown in the records of the Corporation or its
transfer agent, or if no address is shown therein, then to the last address of
each such person known to the secretary.
(2) The auditor of the Corporation, if any, is entitled to attend any
meeting of shareholders of the Corporation and to receive all notices and other
communications relating to any such meeting that a shareholder is entitled to
receive.
39. Waiver of Notice. A meeting of shareholders may be held for any
purpose at any time and, subject to section 84 of the Act, at any place without
notice if all the shareholders entitled to notice of such meeting are present
in person or represented by proxy at the meeting (except where the shareholder
attends the meeting for the express purpose of objecting to the transaction of
any business on the grounds that the meeting is not lawfully called) or if all
the shareholders entitled to notice of such meeting and not present in person
nor represented by proxy thereat waive notice of the meeting. Notice of any
meeting of shareholders or any irregularity in any such meeting or in the
notice thereof may be waived by any shareholder, the duly appointed proxy of
any shareholder, any directors or the auditor of the Corporation in writing, by
telegram, cable, telex or facsimile addressed to the Corporation or by any
other manner, and any such waiver may be validly given either before or after
the meeting to which such waiver relates.
40. Omission of Notice. The accidental omission to give notice of any
meeting to or the non-receipt of any notice by any person shall not invalidate
any resolution passed or any proceeding taken at any meeting of shareholders.
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41. Record Date. (1) The directors may by resolution fix in advance a date
as the record date for the determination of shareholders
(a) entitled to receive payment of a dividend;
(b) entitled to participate in a liquidation distribution; or
(c) for any other purpose except the right to receive notice of or
to vote at a meeting of shareholders,
but such record date shall not precede by more than fifty (50) days the
particular action to be taken.
(2) The directors may by resolution also fix in advance the date as the
record date for the determination of shareholders entitled to receive notice of
a meeting of shareholders, but such record date shall not precede by more than
fifty (50) days or by less than twenty-one (21) days the date on which the
meeting is to be held.
(3) If no record date is fixed,
(a) the record date for the determination of shareholders
entitled to receive notice of a meeting of shareholders shall
be
(i) at the close of business on the day immediately
preceding the day on which the notice is given; or
(ii) if no notice is given, the day on which the meeting
is held; and
(b) the record date for the determination of shareholders for any
purpose, other than that specified in subparagraph (a) above
or to vote, shall be at the close of business on the day on
which the directors pass the resolution relating thereto.
42. Voting. (1) Votes at meetings of the shareholders may be given either
personally or by proxy. At every meeting at which he is entitled to vote, every
shareholder present in person and every proxyholder shall have one (1) vote on
a show of hands. Upon a poll at which he is entitled to vote, every
shareholder present in person or by proxy shall (subject to the provisions, if
any, of the articles) have one (1) vote for every share registered in his name.
(2) 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.
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(3) At any meeting, unless a ballot is demanded, a declaration by the
chairman of the meeting that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact without proof of the number
or proportion of votes recorded in favour of or against the motion.
(4) In the absence of the chairman of the board, the president and every
vice-president, the shareholders present entitled to vote shall choose another
director as chairman of the meeting and if no director is present or if all the
directors present decline to take the chair then the shareholders or
proxyholders present shall choose one of their number to be chairman.
(5) If at any meeting a ballot is demanded on the election of a chairman
or on the question of adjournment or termination it shall be taken forthwith
without adjournment. If a ballot is demanded on any other question or as to the
election of directors it shall be taken in such manner and either at once or
later at the meeting or at an adjourned meeting as the chairman of the meeting
directs. The result of a ballot shall be deemed to be the resolution of the
meeting at which the ballot was demanded. A demand for a ballot may be
withdrawn.
(6) Where a person holds shares as a personal representative, such person
or his proxy is the person entitled to vote at all meetings of shareholders in
respect of the shares so held by him.
(7) Where a person mortgages or hypothecates his shares, such person or
his proxy is the person entitled to vote at all meetings of shareholders in
respect of such shares unless, in the instrument creating the mortgage or
hypothec, he has expressly empowered the person holding the mortgage or
hypothec to vote in respect of such shares, in which case, and subject to the
articles, such holder or his proxy is the person entitled to vote in respect of
the shares.
(8) Where two or more persons hold the same share or shares jointly, any
one of such persons present at a meeting of shareholders has the right, in the
absence of the other or others, to vote in respect of such share or shares, but
if more then one of such persons are present or represented by proxy and vote,
they shall vote together as one on the share or shares jointly held by them.
43. Proxies. (1) A shareholder, including a shareholder that is a body
corporate, entitled to vote at a meeting of shareholders may by means of a
proxy appoint a proxyholder or one or more alternate proxyholders, none of whom
are required to be a shareholder of the Corporation, which proxyholders shall
have all the rights of the shareholder to attend and act at the meeting in the
place and stead of the shareholder except to the extent limited by the proxy.
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(2) An instrument appointing a proxy shall be in writing and shall be
executed by the shareholder or by his attorney authorized in writing or, if the
shareholder is a body corporate, either under its seal or by an officer or
attorney thereof, duly authorized. A proxy is valid only at the meeting in
respect of which it is given or any adjournment thereof.
(3) Unless the Act requires another form, an instrument appointing a
proxyholder may be in the following form:
"The undersigned shareholder of hereby appoints of or
failing him, of as the proxy of the
undersigned to attend and act for and on behalf of the undersigned at
the meeting of the shareholders of the said corporation to be held on
the day of , 19 , and at any adjournment thereof to the same extent
and with the same power and authority as if the undersigned were
personally present at the said meeting or such adjournment thereof.
Dated the day of , 19 .
Signature of Shareholder
NOTE:
This form of proxy must be signed by a shareholder or his attorney
authorized in writing or, if the shareholder is a body corporate,
either under its seal or by an officer or attorney thereof duly
authorized."
44. Adjournment. (1) The chairman of the meeting may with the consent of
the meeting adjourn any meeting of shareholders from time to time to a fixed
time and place. If a meeting of shareholders is adjourned for less than sixty
(60) days, it is not necessary to give notice of the adjourned meeting other
than by announcement at the earlier meeting that is adjourned. If a meeting of
shareholders is adjourned by one or more adjournments for an aggregate of sixty
(60) days or more, notice of the adjourned meeting shall be given as for an
original meeting.
(2) Any adjourned meeting shall be duly constituted if held in accordance
with the terms of the adjournment and a quorum is present at the opening
thereat. The persons who formed a quorum at the original meeting are not
required to form the quorum at the adjourned meeting. If there is no quorum
present at the opening of the adjourned meeting, the original meeting shall be
deemed to have terminated forthwith after its adjournment. Any business may be
brought before or dealt with at any
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adjourned meeting which might have been brought before or dealt with at the
original meeting in accordance with the notice calling the same.
45. Quorum. (1) Except as hereinafter provided, a quorum for any meeting
of shareholders shall be two (2) or more shareholders or proxyholders holding
or representing not less than a majority of the shares entitled to be voted at
such meeting.
(2) If a quorum is present at the opening of a meeting of shareholders,
the shareholders present in person or represented by proxy may proceed with the
business of the meeting notwithstanding that a quorum is not present throughout
the meeting.
(3) If a quorum is not present at the opening of a meeting of
shareholders, the shareholders present in person or represented by proxy may
adjourn the meeting to a fixed time and place but not transact any other
business.
(4) Where the Corporation has only one shareholder or only one holder of
any class or series of shares, or if only one person is present at a meeting
holding or representing sufficient shares to constitute a quorum, the
shareholder present in person or by proxy constitutes a meeting.
46. Resolution in Lieu of meeting. A resolution in writing signed by
all the shareholders or signed counterparts of such resolution by all the
shareholders entitled to vote on that resolution at a meeting of shareholders
is as valid as if it had been passed at a meeting of the shareholders duly
called, constituted and held. A copy of every such resolution or counterpart
thereof shall be kept with the minutes of the meetings of shareholders.
47. Telephone Participation. A shareholder may participate in a meeting of
shareholders or of a committee of shareholders by means of such telephone or
other communication facilities that permit all persons participating in the
meeting to hear each other, and a shareholder participating in such a meeting
by such means shall be deemed to be present at that meeting.
SHARES AND TRANSFERS
48. Issuance. Subject to the articles, any unanimous shareholder agreement
and to section 27 of the Act, shares in the Corporation may be issued at such
times and to such persons or classes of persons and, subject to sections 23 and
24 of the Act, for such consideration as the directors may determine.
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49. Certificates. Share certificates (and the form of stock transfer power
on the reverse side thereof shall (subject to compliance with section 47 of the
Act) be in such form and be signed by such director(s) or officer(s) as the
directors may from time to time by resolution determine. Such certificates
shall be signed manually by at least one director or officer of the Corporation
or by or on behalf of a registrar, transfer agent or branch transfer agent of
the Corporation, and any additional signatures required on a share certificate
may be printed or otherwise mechanically reproduced thereon. If a share
certificate contains a printed or mechanically reproduced signature of a
person, the Corporation may issue the share certificate notwithstanding that
the person has ceased to be a director or an officer of the Corporation, and
the share certificate is as valid as if he were a director or an officer at the
date of its issue.
50. Registrar and Transfer Agent. The directors may from time to time by
resolution appoint or remove one or more registrars and/or branch registrars
(which may but need not be the same person) to keep the share register and/or
one or more transfer agents and/or branch transfer agents (which may but need
not be the same person) to keep the register of transfers, and (subject to
section 48 of the Act) may provide for the registration of issues and the
registration of transfers of the shares of the Corporation in one or more
places and such registrars and/or branch registrars and/or transfer agents
and/or branch transfer agents shall keep all necessary books and registers of
the Corporation for the registration of the issuance and the registration of
transfers of the shares of the Corporation for which they are so appointed. All
certificates issued after any such appointment representing shares issued by
the Corporation shall be countersigned by or on behalf of one of the said
registrars and/or branch registrars and/or transfer agents and/or branch
transfer agents, as the case may be.
51. Surrender of Share Certificates. No transfer of a share issued by the
Corporation shall be recorded or registered unless or until the certificate
representing the share to be transferred has been surrendered and cancelled or,
if no certificate has been issued by the Corporation in respect of such share,
unless or until a duly executed share transfer power in respect thereof has
been presented for registration.
52. Defaced, Destroyed, Stolen or Lost Certificates. If the defacement,
destruction or apparent destruction, theft, or, other wrongful taking or loss
of a share certificate is reported by the owner thereof to the Corporation or
to a registrar, branch registrar, transfer agent or branch transfer agent of
the Corporation (hereinafter, in this paragraph, called the "Corporation's
transfer agent") and such owner gives to the Corporation or the Corporation's
transfer agent a written statement verified by oath or statutory declaration as
to the defacement, destruction or apparent destruction, theft, or other
wrongful taking or loss and the circumstances concerning the same, a request
for the issuance of a new certificate to replace the one so defaced, destroyed,
wrongfully taken or lost and a bond of a surety company (or other security
approved by the directors) in such form as is approved by the directors or by
the chairman of the board,
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the president, a vice-president, the secretary or the treasurer of the
Corporation, indemnifying the Corporation (and the Corporation's transfer
agent, if any), against all loss, damage or expense, which the Corporation
and/or the Corporation's transfer agent may suffer or be liable for by reason
of the issuance of a new certificate to such shareholder, a new certificate may
be issued in replacement of the one defaced, destroyed or apparently destroyed,
stolen or otherwise wrongfully taken or lost, if such issuance is ordered and
authorized by any one of the chairman of the board, the president, a
vice-president, the secretary or the treasurer of the Corporation or by
resolution of the directors.
DIVIDENDS
53. Declaration and Payment of Dividends. (1) Subject to the following
subparagraph (2), the directors may from time to time by resolution declare and
the Corporation may pay dividends on its issued shares, subject to the
provisions (if any) of the articles.
(2) The directors shall not declare and the Corporation shall not pay a
dividend if there are reasonable grounds for believing that:
(a) the Corporation is, or would after the payment be, unable to pay its
liabilities as they become due; or
(b) the realizable value of the Corporation's assets would thereby be less
than the aggregate of its liabilities and stated capital of all
classes.
(3) Subject to section 41 of the Act, the Corporation may pay a dividend
in money or property or by issuing fully paid shares of the Corporation.
54. Receipt of Dividends by Joint Holders. In case two or more persons
are registered as the joint holders of any securities of the Corporation, any
one of such persons may give effectual receipts for all dividends and payments
on account of dividends, principal, interest and/or redemption payments on
redemption of securities (if any) subject to redemption in respect of such
securities.
VOTING SECURITIES IN OTHER BODIES CORPORATE
55. All securities of any other body corporate carrying voting rights held
from time to time by the Corporation may be voted at all meetings of
shareholders, bondholders debenture holders or holders of such securities, as
the case may be, of such other body corporate in such manner and by such person
or persons as the directors of the
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Corporation shall from time to time determine and authorize by resolution. The
duly authorized signing officers of the Corporation may also from time to time
execute and deliver for and on behalf of the Corporation proxies and/or arrange
for the issuance of voting certificates and/or other evidence of the right to
vote in such names as they may determine without the necessity of a resolution
or other action by the directors.
NOTICE
56. Service. (1) Any notice or other document required to be given or sent
by the Corporation to any shareholder, director or auditor of the Corporation
shall be delivered personally or sent by prepaid mail or by telegram, telex,
cablegram or facsimile addressed to:
(a) the shareholder at his latest address as shown on 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 last notice filed under section 64
or 71 of the Act.
With respect to every notice or other document sent by prepaid mail it shall be
sufficient to prove that the envelope or wrapper containing the notice or other
document was properly addressed and put into a post office letter box.
(2) If the Corporation sends a notice or document to a shareholder
in accordance with the provisions of the foregoing subparagraph (2) and the
notice or document is returned on three (3) consecutive occasions because the
shareholder cannot be found, the Corporation is not required to send any
further notices or documents to the shareholder until he informs the
Corporation in writing of his now address.
57. Shares registered in more than one name. All notices or other
documents required to be sent to a shareholder by the Act, the regulations
under the Act, the articles or the by-laws of the Corporation shall, with
respect to any shares in the capital of the Corporation registered in more then
one name, be given to whichever of such persons is named first in the records
of the Corporation and any notice or other document so given shall be
sufficient notice or delivery of such document to all the holders of such
shares.
58. Persons becoming entitled by operation of law. Every person who by
operation of law, transfer or by any other means whatsoever shall become
entitled to any shares in the capital of the Corporation shall be bound by
every notice or other document in respect of such shares which prior to his
name and address being entered on the
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records of the Corporation shall have been duly given to the person or persons
from whom he derives his title to such shares.
59. Deceased Shareholder. Any notice or other document delivered or sent
by post or left at the address of any shareholder as the same appears in the
records of the Corporation shall, notwithstanding that such shareholder be then
deceased and whether or not the Corporation has notice of his decease, be
deemed to have been duly served in respect of the shares held by such
shareholder (whether held solely or with other persons) until some other person
be entered in his stead in the records of the Corporation as the holder or one
of the holders thereof and such service shall for all purposes be deemed a
sufficient service of such notice or other document on his heirs, executors or
administrators and all persons (if any) interested with him in such shares.
60. Signatures to Notices. The signature of any director or officer of the
Corporation to any notice may be written, stamped, typewritten or printed or
partly written, stamped, typewritten or printed.
61. Computation of Time. Where a given number of days' notice or notice
extending over any period is required to be given under any provisions of the
articles or by-laws of the Corporation, the day of service or posting of the
notice shall, unless it is otherwise provided, be counted in such number of
days or other period and such notice shall be deemed to have been given or sent
on the day of service or posting.
62. Proof of Service. A certificate of any officer of the Corporation in
office at the time of the making of the certificate or of a transfer officer of
any transfer agent or branch transfer agent of shares of any class of the
Corporation as to facts in relation to the mailing or delivery or service of
any notice or other documents to any shareholder, director, officer or auditor
or publication of any notice or other document shall be conclusive evidence
thereof and shall be binding on every shareholder, director, officer or auditor
of the Corporation, as the case may be.
CHEQUES, DRAFTS NOTES, ETC
63. All cheques, drafts or orders for the payment of money and all notes,
acceptances and bills of exchange shall be signed by such officer or officers
or other person or persons, whether or not officers of the Corporation, and in
such manner as the directors may from time to time designate by resolution.
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CUSTODY OF SECURITIES
64. (1) All securities (including warrants) owned by the Corporation shall
be lodged (in the name of the Corporation) with a chartered bank or a trust
company or in a safety deposit box or, if so authorized by resolution of the
directors, with such other depositaries or in such other manner as may be
determined from time to time by the directors.
(2) All securities (including warrants) belonging to the Corporation may
be issued and held in the name of a nominee or nominees of the Corporation (and
if issued or held in the names of more than one nominee shall be held in the
names of the nominees jointly with right of survivorship) and shall be endorsed
in blank with endorsement guaranteed in order to enable transfer thereof to be
completed and registration thereof to be effected.
EXECUTION OF CONTRACTS, ETC,
65. (1) Contracts, documents or instruments in writing requiring the
signature of the Corporation may be signed by any one of the directors or
officers. All contracts, documents or instruments in writing so signed shall be
binding upon the Corporation without any further authorization or formality,
The directors are authorized from time to time by resolution to appoint any
officer or officers or any other person or persons on behalf of the Corporation
either to sign contracts, documents or instruments in writing generally or to
sign specific contracts, documents or instruments in writing. Where the
Corporation has only one director and officer, being the same person, that
person may sign all such contracts, documents or other written instruments.
(2) The corporate seal (if any) may, when required, be affixed to
contracts, documents or instruments in writing signed as aforesaid by an
officer or officers, person or persons appointed as aforesaid by resolution of
the directors.
(3) The term "contracts, documents or instruments in writing" as used in
this by-law shall include deeds, mortgages, hypothecs, charges, conveyances,
transfers and assignments of property, real or personal, immoveable or
moveable, agreements, releases, receipts and discharges for the payment of
money or other obligations, conveyances, transfers and assignments of shares,
warrants, bonds, debentures or other securities and all paper writings.
(4) In particular, without limiting the generality of the foregoing, any
one of the directors or officers of the Corporation are hereby authorized to
sell, assign, transfer, exchange, convert or convey all shares, bonds,
debentures, rights, warrants or other securities owned by or registered in the
name of the Corporation and to sign and execute (under the seal of the
Corporation or otherwise) all assignments, transfers, conveyances, powers of
attorney and other instruments that may be necessary for the
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purpose of selling, assigning, transferring, exchanging, converting or
conveying or enforcing or exercising any voting rights in respect of any such
shares, bonds, debentures, rights, warrants or other securities. Where the
Corporation has only one director and officer, being the same person, that
person may perform the functions and exercise the powers herein contemplated.
AUDITOR
66. At each annual meeting of the shareholders of the Corporation an auditor
may be appointed for the purpose of auditing and verifying the accounts of the
Corporation for the then current year and his report shall be submitted at the
next annual meeting of the shareholders. The auditor shall not be a director or
an officer of the Corporation, Unless fixed by the meeting of shareholders at
which he is appointed, the remuneration of the auditor shall be determined from
time to time by the directors.
FISCAL YEAR
67. The fiscal period of the Corporation shall terminate on such day in each
year as the directors may from time to time by resolution determine.
BORROWING
68. General Borrowing. The directors may from time to time:
(a) borrow money upon the credit of the Corporation;
(b) issue, reissue, sell or pledge debt obligations of the
Corporation;
(c) give a guarantee on behalf of the Corporation to secure
performance of an obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any property of the Corporation, owned or
subsequently acquired, to secure any obligation of the
Corporation.
The directors may from time to time authorize any director or directors, or
officer or officers, of the Corporation, to make arrangements with reference to
the money borrowed or to be borrowed as aforesaid, and as to the terms and
conditions of the loan thereof, and as to the securities to be given therefor,
with power to vary or modify such arrangements, terms and conditions and to
give such additional securities
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for any moneys borrowed or remaining due by the Corporation as the directors of
the Corporation may authorize, and generally to manage, transact and settle the
borrowing of money by the Corporation.