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EXHIBIT 3.2
FLOTEK INDUSTRIES INC.
BY-LAW NO. 1
A by-law relating generally to the
transaction of the business and
the conduct of the affairs of
Flotek Industries Inc.
SECTION 1
INTERPRETATION
1.1 DEFINITIONS. In this By-law No. 1, unless the context otherwise requires:
"ACT" means the Business Corporations Act (Alberta), or any statute that may be
substituted therefor, as from time to time amended;
"ARTICLES" means the articles of continuance on which is endorsed the
certificate of continuance of the Corporation, pursuant to the provisions of the
Act, as from time to time amended or restated;
"BOARD" means the board of directors of the Corporation;
"BY-LAW No. 1" means this by-law no. 1 of the Corporation as from time to
time amended or restated and in force and effect;
"CHEQUE" includes a draft;
"CORPORATION" means the corporation continued under the Act by the certificate
of continuance endorsed on the Articles and named Flotek Industries Inc.;
"DIRECTOR" means a member of the Board;
"MEETING of Shareholders" includes an annual meeting of Shareholders and a
Special Meeting of Shareholders;
"SECTION" means a section of this by-law no. 1 of the Corporation;
"SHAREHOLDERS" means the shareholders of the Corporation;
"SPECIAL MEETING OF SHAREHOLDERS" includes a meeting of any class or classes of
Shareholders and a special meeting of all Shareholders entitled to vote at an
annual meeting of Shareholders' and
"RECORDED ADDRESS" has the meaning set forth in Section 11.8;
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Save as aforesaid, words and expressions defined in the Act, including "resident
Canadian" and "unanimous shareholder agreement", have the same meanings when
used herein. Subject to the Act, the words "appoint" and "appointment" include
"elect" and "election", respectively, and vice versa.
1.2 INTERPRETATION. Words importing the singular number include the plural and
vice versa; words importing gender include the masculine, feminine and neuter
genders; and words importing a person include an individual, sole
proprietorship, partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, body corporate, and a natural
person in his capacity as trustee, executor, administrator, or other legal
representative.
1.3 HEADINGS. The division of this By-law No.1 into sections and the provision
of headings for all or any thereof are for convenience of reference only and
shall not affect the meaning of this By-law No 1.
SECTION 2
BUSINESS OF THE CORPORATION
2.1 REGISTERED OFFICE. The registered office of the Corporation shall be located
within Alberta as the Board may from time to time determine.
2.2 CORPORATE SEAL. The corporate seal of the Corporation shall be such as the
Board may by resolution from time to time adopt. An instrument or agreement
executed on behalf of the Corporation by a Director, an officer or an agent of
the Corporation is not invalid merely because the corporate seal is not affixed
thereto.
2.3 FINANCIAL YEAR. Until changed by the Board, the financial year of the
Corporation shall end on the last day of February in each year.
2.4 EXECUTION OF INSTRUMENTS. Deeds, transfers, assignments, contracts,
obligations, certificates and other instruments may be signed on behalf of the
Corporation by two persons, one of whom holds the office of chairman of the
Board, managing director, president, vice-president or is a Director and the
other of whom is a Director or holds one of the said offices or the office of
secretary, treasurer, assistant secretary or assistant treasurer or any other
office created by By-law or by the Board. In addition, the Board or the said two
persons may from time to time direct the manner in which and the person or
persons by whom any particular instrument or class of instruments may or shall
be signed. Any signing officer may affix the corporate seal to any instrument
requiring the same.
2.5 BANKING ARRANGEMENTS. The banking business of the Corporation including,
without limitation, the borrowing of money and the giving of security therefor,
shall be transacted with such banks, trust companies or other bodies corporate
or organizations as may from time to time be designated by or under the
authority of the Board. Such banking business or any part thereof shall be
transacted under such agreements, instructions and delegations of powers as
the Board may from time to time prescribe.
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2.6 VOTING RIGHTS IN OTHER BODIES CORPORATE. The signing officers of the
Corporation under Section 2.4 may execute and deliver proxies and arrange for
the issuance of voting certificates or other evidence of the right to exercise
the voting rights attaching to any securities held by the Corporation. Such
instruments shall be in favour of such persons as may be determined by the
officers executing or arranging for the same. In addition, the Board may from
time to time direct the manner in which and the persons by whom any particular
voting rights or class of voting rights may or shall be exercised.
2.7 DIVISIONS. The Board may cause the business and operations of the
Corporation or any part thereof to be divided into one or more divisions upon
such basis, including without limitation types of business or operations,
geographical territories, product lines or goods or services, as may be
considered appropriate in each case. In connection with any such division the
Board or, subject to any direction by the Board, the chief executive officer may
authorize from time to time, upon such basis as may be considered appropriate in
each case:
(a) Subdivision and Consolidation - the further division of the
business and operations of any such division into sub-units
and the consolidation of the business and operations of any
such divisions and sub-units;
(b) Name - the designation of any such division or sub-unit by,
and the carrying on of the business and operations of any such
division or sub-unit under, a name other than the name of the
Corporation; provided that the Corporation shall set out its
name in legible characters in all places required by law; and
(c) Officers - the appointment of officers for any such division
or sub-unit, the determination of their powers and duties, and
the removal of any of such officers so appointed, provided
that any such officers shall not, as such, be officers of the
Corporation.
SECTION 3
BORROWING AND SECURITY
3.1 BORROWING POWER. Without limiting the borrowing powers of the Corporation as
set forth in the Act, but subject to the Articles, the Board may from time to
time on behalf of the Corporation, without authorization of the Shareholders:
(a) borrow money upon the credit of the Corporation;
(b) issue, reissue, sell or pledge bonds, debentures, notes or
other evidences of indebtedness or guarantee of the
Corporation, whether secured or unsecured;
(c) to the extent permitted by the Act, give directly or
indirectly financial assistance to any person by means of a
loan, a guarantee on behalf of the Corporation to secure
performance of any present or future indebtedness, liability
or obligation of any person, or otherwise; and
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(d) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any currently owned or subsequently
acquired real or personal, movable or immovable, property of
the Corporation including book debts, rights, powers,
franchises and undertakings, to secure any such bonds,
debentures, notes or other evidences of indebtedness or
guarantee or any other present or future indebtedness,
liability or obligation of the Corporation.
Nothing in this Section limits or restricts the borrowing of money by the
Corporation on bills of exchange or promissory notes made, drawn, accepted or
endorsed by or on behalf of the Corporation.
3.2 DELEGATION. Subject to the Act and the Articles, the Board may from time to
time delegate to a committee of the Board, a Director or an officer of the
Corporation or any other person as may be designated by the Board all or any of
the powers conferred on the Board by Section 3.1 or by the Act to such extent
and in such manner as the Board may determine at the time of such delegation.
SECTION 4
DIRECTORS
4.1 NUMBER OF DIRECTORS. Until changed in accordance with the Act, the Board
shall consist of not fewer than the minimum number and not more than the maximum
number of Directors provided in the Articles.
4.2 QUALIFICATION. No person shall be qualified for election as a Director if he
is less than 18 years of age; if he is of unsound mind and has been so found by
a court in Canada or elsewhere; if he is not an individual; or if he has the
status of a bankrupt. A Director need not be a Shareholder. A majority of the
Directors shall be resident Canadians. At least two of the Directors shall not
be officers or employees of the Corporation or any of its affiliates.
4.3 ELECTION AND TERM. The election of Directors shall take place at each annual
meeting of Shareholders and all the Directors then in office shall retire but,
if qualified, shall be eligible for re-election. The number of directors to be
elected at any such meeting shall be the number then in office unless the
Directors otherwise determine, in which case the number of Directors to be
elected shall, subject to the Articles, be the number fixed by the Directors.
Where the Shareholders adopt an amendment to the Articles to increase the number
or minimum number of Directors, the Shareholders may, at the meeting at which
they adopt the amendment, elect the additional number of Directors authorized by
the amendment to take office from the effective date of the endorsement of the
articles of amendment with respect thereto. The election shall be by resolution.
If an election of Directors is not held at the proper time, the incumbent
Directors shall continue in office until their successors are elected. Whenever
at any election of Directors the number or the minimum number of Directors
required by the Articles is not elected by reason of the disqualification,
incapacity or the death of any candidates, the Directors elected at that meeting
may exercise all the powers of the Directors if the number of Directors so
elected constitutes a quorum.
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4.4 REMOVAL OF DIRECTORS. Subject to the Act, the Shareholders may by ordinary
resolution passed at a Meeting of Shareholders remove any Director from office
and the vacancy created by such removal may be filled by the election of any
qualified individual at the same meeting, failing which it may be filled by the
Board.
4.5 VACATION OF OFFICE. A Director ceases to hold office when he dies; he is
removed from office by the Shareholders; he ceases to be qualified for election
as a Director; or his written resignation is received by the Corporation, or, if
a time is specified in such resignation, at the time so specified, whichever is
later.
4.6 VACANCIES. Subject to the Act, a quorum of the Board may appoint a qualified
individual to fill a vacancy in the Board.
4.7 ACTION BY THE BOARD. The Board shall manage or supervise the management of
the business and affairs of the Corporation. The powers of the Board may be
exercised at a meeting (subject to Sections 4.8 and 4.9) at which a quorum is
present or by resolution in writing signed by all the Directors entitled to vote
on that resolution at a meeting of the Board. Where there is a vacancy in the
Board, the remaining Directors may exercise all the powers of the Board so long
as a quorum remains in office.
4.8 CANADIAN MAJORITY AT MEETINGS. The Board shall not transact business at a
meeting, other than filling a vacancy in the Board unless a majority of the
Directors present are resident Canadians, except where:
(a) a resident Canadian Director who is unable to be present
approves in writing or by telephone, electronic, or other
communications facilities the business transacted at the
meeting; and
(b) a majority of resident Canadians would have been present had
that Director been present at the meeting.
4.9 MEETING BY TELEPHONE. If all the Directors consent thereto generally or if
all the Directors present at or participating in the meeting consent, a Director
may participate in a meeting of the Board or of a committee of the Board by
means of such telephone, electronic or other communications facilities as permit
all persons participating in the meeting to communicate with each other,
simultaneously and instantaneously, and a Director participating in such a
meeting by such means is deemed to be present at the meeting. Any such consent
shall be effective whether given before or after the meeting to which it relates
and may be given with respect to all meetings of the Board and of committees of
the Board.
4.10 PLACE OF MEETINGS. Meetings of the Board may be held at any place within or
outside Canada and in any financial year of the Corporation a majority of the
meetings need not be held in Canada.
4.11 CALLING OF MEETINGS. Meetings of the Board shall be held from time to time
at such time and at such place as the Board, the chairman of the Board, the
president or any two Directors may determine.
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4.12 NOTICE OF MEETING. Notice of the time and place of each meeting of the
Board shall be given in the manner provided in Section 11 to each Director not
less than 48 hours before the time when the meeting is to be held. No notice of
a meeting shall be necessary if all the Directors in office are present or if
those absent waive notice of such 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. A notice of a meeting of
Directors need not specify the purpose of or the business to be transacted at
the meeting except where the Act requires such purpose or business or the
general nature thereof to be specified.
4.13 FIRST MEETING OF NEW BOARD. Provided a quorum of Directors is present, each
newly elected Board may without notice hold its first meeting immediately
following the Meeting of Shareholders at which such Board is elected.
4.14 ADJOURNED MEETING. Any meeting of Directors or of any committee of
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. Notice of an
adjourned meeting of the Board is not required 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.
4.15 REGULAR MEETINGS. The Board may appoint a day or days in any month or
months for regular meetings of the Board at a place and hour to be named. A copy
of any resolution of the Board fixing the place and time of such regular
meetings shall be sent to each Director forthwith after being passed, but no
other notice shall be required for any such regular meeting except where the Act
requires the purpose thereof or the business to be transacted thereat to be
specified.
4.16 CHAIRMAN. The chairman of any meeting of the Board shall be the first
mentioned of such of the following officers as have been appointed and who is a
director and is present at the meeting: chairman of the Board, managing director
or president. If no such officer is present, the Directors present shall choose
one of their number to be chairman.
4.17 QUORUM. Subject to Sections 4.6, 4.8 and 4.21, the quorum for the
transaction of business at any meeting of the Board shall be a majority of the
number of Directors or minimum number of Directors, as the case may be, or such
greater number of Directors as the Board may from time to time determine.
4.18 VOTES TO GOVERN. At all meetings of the Board every question shall be
decided by a majority of the votes cast on the question. In case of an equality
of votes the chairman of the meeting shall not be entitled to a second or
casting vote. audit committee may call a meeting of the committee. The audit
committee shall review the financial statements of the Corporation prior to
approval thereof by the Board and shall have such other powers and duties as may
from time to time by resolution be assigned to it by the Board.
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4.19 CONFLICT OF INTEREST. A Director who is a party to, or who is a Director or
officer of or has a material interest in any person who is a party to, a
material contract or transaction or proposed material contract or transaction
with the Corporation shall disclose to the Corporation the nature and extent of
his interest at the time and in the manner provided by the Act. Such a Director
shall not vote on any resolution to approve the same except as provided by the
Act.
4.20 REMUNERATION AND EXPENSES. The Directors shall be paid such remuneration
for their services as the Board may from time to time determine. The Directors
shall also be entitled to be reimbursed for traveling and other expenses
properly incurred by them in attending meetings of the Board or any committee
thereof. Nothing herein contained shall preclude any Director from serving the
Corporation in any other capacity and receiving remuneration therefor.
4.21 RESOLUTIONS IN LIEU OF MEETING. A resolution in writing signed by all the
Directors entitled to vote on that resolution at a meeting of Directors or
committee of Directors is as valid as if it had been passed at a meeting of
Directors or committee of Directors. Any such resolution in writing may be
signed in one or more counterparts, all of which together shall constitute one
and the same resolution, and a facsimile of a signed counterpart of such
resolution shall be deemed to be as valid as an originally signed counterpart
unless it is proven that such facsimile does not accurately reflect an authentic
originally signed counterpart.
SECTION 5
COMMITTEES
5.1 COMMITTEES OF THE BOARD. The Board may appoint from their number one or more
committees of the Board, however designated, and delegate to any such committee
any of the powers of the Board except those which pertain to items which, under
the Act, a committee of the Board has no authority to exercise. A majority of
the members of any such committee shall be resident Canadians.
5.2 TRANSACTION OF BUSINESS. The powers of a committee of the Board may be
exercised by a meeting at which a quorum is present or by resolution in writing
signed by all members of such committee who would have been entitled to vote on
that resolution at a meeting of the committee. Meetings of such committee may be
held at any place in or outside of Canada.
5.3 AUDIT COMMITTEE. The Board shall select annually from among their number an
audit committee to be composed of not fewer than three Directors of whom a
majority shall not be officers or employees of the Corporation or any of its
affiliates. The audit committee shall have the powers and duties provided in the
Act. Each member of the audit committee shall serve during the pleasure of the
Board and, in any event, only so long as he shall be a Director. The Directors
may fill vacancies in the audit committee by election from among their number.
The auditor of the Corporation is entitled to receive notice of every meeting of
the audit committee and, at the expense of the Corporation, to attend and be
heard thereat; and, if so requested by a member of the audit committee, shall
attend every meeting of the committee held during the term of office of
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the auditor. The auditor of the Corporation or any member of the 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.
5.4 ADVISORY BODIES. The Board may from time to time appoint such advisory
bodies as it may deem advisable.
5.5 PROCEDURE. Unless otherwise determined by the Board, each committee and
advisory body shall have power to fix its quorum at not less than a majority of
its members, to elect its chairman and to regulate its procedure.
SECTION 6
OFFICERS
6.1 APPOINTMENT. The Board shall annually, or as often as may be required,
appoint a president, one or more vice-presidents (to which title may be added
words indicating seniority or function) and such other officers as the Board may
determine, including one or more assistants to any of the officers so appointed.
One person may hold more than one office. The Board may specify the duties of
and, in accordance with this By-law and subject to the Act, delegate to such
officers powers to manage the business and affairs of the Corporation. Subject
to Sections 6.2 and 6.3, an officer may but need not be a Director.
6.2 CHAIRMAN OF THE BOARD. The Board may from time to time also appoint a
chairman of the Board who shall be a Director. If appointed, the Board may
assign to him any of the powers and duties that are by any provisions of this
By-law assigned to the managing director or to the president; and he shall have
such other powers and duties as the Board may specify.
6.3 MANAGING DIRECTOR. The Board may from time to time also appoint a managing
director who shall be a resident Canadian and a Director. If appointed, he shall
be the chief executive officer and, subject to the authority of the Board, shall
have general supervision of the business and affairs of the Corporation; and he
shall have such other powers and duties as the Board may specify. During the
absence or disability of the president, or if no president has been appointed,
the managing director shall also have the powers and duties of that office.
6.4 PRESIDENT. The president shall be the chief operating officer and, subject
to the authority of the Board, shall have general supervision of the business
of the Corporation; and he shall have such other powers and duties as the Board
may specify. During the absence or disability of the managing director, or if
no managing director has been appointed, the president shall also have the
powers and duties of that office.
6.5 VICE-PRESIDENT. The vice-president 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, inability or refusal to act of the
president; provided, however, that a vice-president who is not a Director shall
not preside as the chairman at any meeting of Directors or Shareholders. The
vice-president or, if more than one, the vice-presidents in order
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6.6 SECRETARY. Unless otherwise determined by the Board, the secretary, if
appointed, shall be the secretary of all meetings of the Board, Shareholders and
committees of the Board that he attends. The secretary shall enter or cause to
be entered in records kept for that purpose minutes of all proceedings at
meetings of the Board, Shareholders and committees of the Board, whether or not
he attends such meetings; he shall give or cause to be given, as and when
instructed, all notices to Shareholders, Directors, officers and auditors of the
Corporation, and members of committees of the Board; he shall be the custodian
of the stamp or mechanical device generally used for affixing the corporate seal
of the Corporation and of all books, records and instruments belonging to the
Corporation, except when some other officer or agent has been appointed for that
purpose; and he shall have such other powers and duties as otherwise may be
specified.
6.7 TREASURER. The treasurer, if appointed, shall keep proper accounting records
in compliance with the Act and shall be responsible for the deposit of money,
the safekeeping of securities and the disbursement of the funds of the
Corporation; he shall render to the Board whenever required an account of all
his transactions as treasurer and of the financial position of the Corporation;
and he shall have such other powers and duties as otherwise may be specified.
6.8 POWERS AND DUTIES OF OFFICERS. The powers and duties of all officers shall
be such as the terms of their engagement call for or as the Board or (except for
those whose powers and duties are to be specified only by the Board) the chief
executive officer may specify. The Board and (except as aforesaid) the chief
executive officer 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. Any of the
powers and duties of an officer to whom an assistant has been appointed may be
exercised and performed by such assistant, unless the Board or the chief
executive officer otherwise directs.
6.9 TERM OF OFFICE. The Board, in its discretion, may remove any officer of the
Corporation. Otherwise each officer appointed by the Board shall hold office
until his successor is appointed or until his earlier resignation.
6.10 AGENTS AND ATTORNEYS. The Corporation, by or under the authority of the
Board, shall have power from time to time to appoint agents or attorneys for the
Corporation in or outside Canada with such powers (including the power to
subdelegate) of management, administration or otherwise as may be thought fit.
6.11 CONFLICT OF INTEREST. An officer shall disclose his interest in any
material contract or transaction or proposed material contract or transaction
with the Corporation in accordance with Section 4.19.
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SECTION 7
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.1 LIMITATION OF LIABILITY. Every Director and officer of the Corporation in
exercising his powers and discharging his duties shall act honestly and in good
faith with a view to the best interests of the Corporation and exercise the
care, diligence and skill that a reasonably prudent person would exercise in
comparable circumstances. Every Director and officer of the Corporation shall
comply with the Act, the regulations thereunder, the Articles and the By-laws.
Subject to the foregoing, no Director or officer of the Corporation shall be
liable for the acts, receipts, neglects or defaults of any other Director,
officer or employee, or for joining in any receipt or other act for conformity,
or for any loss, damage or expense happening to the Corporation through the
insufficiency or deficiency of title to any property acquired for or on behalf
of the Corporation, or for the insufficiency or deficiency of any security in or
upon which any of the moneys of the Corporation shall be invested, or for any
loss or damage arising from the bankruptcy, insolvency or tortious acts of any
person with whom any of the moneys, securities or effects of the Corporation
shall be deposited, or for any loss occasioned by any error of judgment or
oversight on his part, or for any other loss, damage or misfortune 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 of the
Corporation from the duty to act in accordance with the Act and the regulations
thereunder or from liability for any breach thereof.
7.2 INDEMNITY. Subject to the Act, the Corporation shall indemnify a Director or
officer of the Corporation, a former Director or officer, or a person who acts
or acted at the Corporation's request as a director or officer of a body
corporate of which the Corporation is or was a shareholder or creditor, and his
heirs and legal representatives, against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by him in respect of any civil, criminal or administrative 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 a director or officer of such body
corporate, if (a) he acted honestly and in good faith with a view to the best
interests of the Corporation, and (b) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, he
had reasonable grounds for believing that his conduct was lawful. The
Corporation shall also indemnify such person in such other circumstances as the
Act or law permits or requires. Nothing in this By-law shall limit the right of
any person entitled to indemnity to claim indemnity apart from the provisions of
this By-law.
7.3 INSURANCE. Subject to the Act, the Corporation may purchase and maintain
such insurance for the benefit of any person referred to in Section 7.2 hereof
as the Board may from time to time determine.
SECTION 8
SHARES
8.1 ALLOTMENT OF SHARES. Subject to the Act and the Articles, the Board may from
time to time allot, or grant options to purchase, the whole or any part of the
authorized and unissued shares of the Corporation at such times and to such
persons and for such consideration as the Board shall determine, provided that
no share shall be issued until it is fully paid as provided by the Act.
8.2 COMMISSIONS. The Board may from time to time authorize the Corporation to
pay a reasonable commission to any person in consideration of his purchasing or
agreeing to purchase shares of the Corporation, whether from the Corporation or
from any other person, or procuring or agreeing to procure purchasers for any
such shares.
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8.3 REGISTRATION OF TRANSFERS. Subject to the Act, no transfer of a share of the
Corporation shall be registered in a securities register except upon
presentation of the certificate representing such share with an endorsement
which complies with the Act made thereon or delivered therewith duly executed by
an appropriate person as provided by the Act, together with such reasonable
assurance that the endorsement is genuine and effective as the Board may from
time to time prescribe, upon payment of all applicable taxes and any reasonable
fees prescribed by the Board, upon compliance with such restrictions on issue,
transfer or ownership as are authorized by the Articles.
8.4 NON-RECOGNITION OF TRUSTS. Subject to the Act, the Corporation may treat the
registered holder of any share of the Corporation as the person exclusively
entitled to vote, to receive notices, to receive any dividend or other payment
in respect of the share, and otherwise to exercise all the rights and powers of
an owner of the share.
8.5 SHARE CERTIFICATES. Every holder of one or more shares of the Corporation
shall be entitled, at his option, to a share certificate, or to a
non-transferable written certificate of acknowledgment of his right to obtain a
share certificate, stating the number and class or senes of shares held by him
as shown on the securities register. Such certificates shall be in such form as
the Board may from time to time approve. Any such certificate shall be signed in
accordance with Section 2.4 and need not be under the corporate seal.
Notwithstanding the foregoing, unless the Board otherwise determines,
certificates in respect of which a registrar, transfer agent, branch transfer
agent or issuing or other authenticating agent has been appointed shall not be
valid unless countersigned by or on behalf of such registrar, transfer agent,
branch transfer agent or issuing or other authenticating agent. The signature of
one of the signing officers under Section 2.4 (or, in the case of a certificate
which is not valid unless countersigned by or on behalf of a registrar, transfer
agent, branch transfer agent or issuing or other authenticating agent, the
signatures of both signing officers under section 2.4) may be printed or
otherwise mechanically reproduced thereon. Every such printed or mechanically
reproduced signature shall for all purposes be deemed to be the signature of the
officer whose signature it reproduces and shall be binding upon the Corporation.
A certificate executed as aforesaid shall be valid notwithstanding that one or
both of the officers whose printed or mechanically reproduced signature appears
thereon no longer holds office at the date of issue of the certificate.
8.6 REPLACEMENT OF SHARE CERTIFICATES. The Board or any officer or agent
designated by the Board may in its or his discretion direct the issue of a new
share of the Corporation or other such certificate in lieu of and upon
cancellation of a certificate that has been mutilated or in substitution for a
certificate claimed to have been lost, apparently destroyed or wrongfully taken
on payment of such reasonable fee and on such terms as to indemnity,
reimbursement of expenses and evidence of loss and of title as the Board may
from time to time prescribe, whether generally or in any particular case.
8.7 JOINT SHAREHOLDERS. If two or more persons are registered as joint holders
of any share of the Corporation, the Corporation shall not be bound to issue
more than one certificate in respect thereof, and delivery of such certificate
to one of such persons shall be sufficient delivery to all of them. Any one of
such persons may give effectual receipts for the certificate issued in respect
thereof or for any dividend, bonus, return of capital or other money payable or
warrant issuable in respect of such share.
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8.8 DECEASED SHAREHOLDERS. In the event of the death of a holder, or of one of
the joint holders, of any share of the Corporation, the Corporation shall not be
required to make any entry in the securities register in respect thereof or to
make any dividend or other payments in respect thereof except upon production of
all such documents as may be required by law and upon compliance with the
reasonable requirements of the Corporation and its transfer agents.
8.9 TRANSFER AGENTS AND REGISTRARS. The Corporation may from time to time, in
respect of each class of securities issued by it, appoint a trustee, transfer or
other agent to keep the securities register and the register of transfers and a
registrar, trustee or agent to maintain a record of issued security certificates
and may appoint one or more persons or agents to keep branch registers, and,
subject to the Act, one person may be appointed to keep the securities register,
register of transfers and the records of issued security certificates. Such
appointment may be terminated at any time by the Board.
SECTION 9
DIVIDENDS AND RIGHTS
9.1 DIVIDENDS. Subject to the Act and the Articles, the Board may from time to
time declare dividends payable to the Shareholders according to their respective
rights and interests in the Corporation. Dividends may be paid in money or
property or by issuing fully paid shares of the Corporation or options or rights
to acquire fully paid shares of the Corporation. Any dividend unclaimed after a
period of six years from the date on which the same has been declared to be
payable shall be forfeited and shall revert to the Corporation.
9.2 DIVIDEND CHEQUES. A dividend payable in money by the Corporation shall be
paid by Cheque to the order of each registered holder of shares of the class or
series in respect of which it has been declared and mailed by prepaid ordinary
mail to such registered holder at his recorded address, unless such holder
otherwise directs. In the case of joint holders the Cheque shall, unless such
joint holders otherwise direct, be made payable to the order of all of such
joint holders and mailed to them at their recorded address. The mailing of such
Cheque as aforesaid, unless the same is not paid on due presentation, shall
satisfy and discharge the liability for the dividend to the extent of the sum
represented thereby plus the amount of any tax which the Corporation is required
to and does withhold. In the event of non-receipt of any dividend Cheque by
the person to whom it is sent as aforesaid, the Corporation shall issue to such
person a replacement Cheque for a like amount on such terms as to indemnity,
reimbursement of expenses and evidence of non-receipt and of title as the Board
may from time to time prescribe, whether generally or in any particular case.
9.3 RECORD DATE FOR DIVIDENDS AND RIGHTS. The Board may fix in advance a date,
preceding by not more than 50 days the date for the payment of any dividend or
the date for the issue of any warrant or other evidence of the right to
subscribe for securities of the Corporation, as a record date for the
determination of the persons entitled to receive payment of such dividend or to
exercise the right to subscribe for such securities, and notice of any such
record date shall be given not less than seven days before such record date in
the manner provided by the Act. If no record date is so fixed, the record date
for the determination of the persons entitled to receive payment of any dividend
or to exercise the right to subscribe for securities of the Corporation shall be
at the close of business on the day on which the resolution relating to such
dividend or right to subscribe is passed by the Board.
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SECTION 10
MEETINGS OF SHAREHOLDERS
10.1 ANNUAL MEETINGS. Subject to the Act, the annual meeting of Shareholders
shall be held at such time in each year and, subject to Section 10.3, at such
place as the Board, the chairman of the Board, the managing director or the
president may from time to time determine, for the purpose of considering the
financial statements and reports required by the Act to be placed before the
annual meeting, electing Directors, appointing auditors and for the transaction
of such other business as may properly be brought before the meeting.
10.2 SPECIAL MEETINGS. The Board, the chairman of the Board, the managing
director or the president shall have power to call a Special Meeting of
Shareholders at any time.
10.3 PLACE OF MEETINGS. Subject to the Act and the Articles, Meetings of
Shareholders of the Corporation shall be held at such place in or outside
Alberta as the Directors determine or, in the absence of such a determination,
at the place where the registered office of the Corporation is located.
10.4 NOTICE OF MEETINGS. Notice of the time and place of each Meeting of
Shareholders shall be given in the manner provided in Section 11 not less than
21 days nor more than 50 days before the date of the meeting to each Director,
to the auditor of the Corporation, and to each Shareholder who at the close of
business on the record date for notice is entered in the securities register as
the holder of one or more shares carrying the right to vote at the meeting.
Notice of a Meeting of Shareholders called for any purpose other than
consideration of the minutes of an earlier meeting, financial statements and
auditor's report, election of Directors and reappointment of the incumbent
auditor shall state the nature of such business in sufficient detail to permit
the Shareholder to form a reasoned judgment thereon and shall state the text of
any special resolution or by-law to be submitted to the meeting.
10.5 LIST OF SHAREHOLDERS ENTITLED TO NOTICE. For every Meeting of Shareholders,
the Corporation shall prepare a list of Shareholders entitled to receive notice
of the meeting, arranged in alphabetical order and showing the number of shares
held by each Shareholder entitled to vote at the meeting. If a record date for
the meeting is fixed pursuant to Section 10.6, the Shareholders listed shall be
those registered at the close of business on such record date. If no record
date is fixed, the Shareholders listed shall be those registered at the close
of business on the day immediately preceding the day on which notice of the
meeting is given or, where no such notice is given, on the day on which the
meeting is held. The list shall be available for examination by any Shareholder
during usual business hours at the registered office of the Corporation or at
the place where the central securities register is maintained and at the
meeting for which the list was prepared. Where a separate list of Shareholders
has not been prepared, the names of persons appearing in the securities
register at the requisite time as the holder of one or more shares carrying the
right to vote at such meeting shall be deemed to be a list of Shareholders.
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10.6 RECORD DATE FOR NOTICE. The Board may fix in advance a date, preceding the
date of any Meeting of Shareholders by not more than 50 days and not less than
21 days, subject to the Act, as a record date for the determination of the
Shareholders entitled to notice of the meeting, and notice of any such record
date shall be given not less than seven days before such record date, by
newspaper advertisement in the manner provided in the Act and by written notice
to each stock exchange in Canada on which the shares of the Corporation are
listed for trading. If no such record date is so fixed, the record date for the
determination of the Shareholders entitled to receive notice of the meeting
shall be at the close of business on the day immediately preceding the day on
which the notice is given or, if no notice is given, shall be the day on which
the meeting is held.
10.7 MEETINGS WITHOUT NOTICE. A Meeting of Shareholders may be held without
notice at any time and place permitted by the Act (a) if all the Shareholders
entitled to vote thereat are present in person or duly represented or if those
not present or represented waive notice of or otherwise consent to such meeting
being held, and (b) if the auditors of the Corporation and the Directors are
present or waive notice of or otherwise consent to such meeting being held; so
long as such Shareholders, auditors or Directors present are not attending for
the express purpose of objecting to the transaction of any business on the
grounds that the meeting is not lawfully called. At such a meeting any business
may be transacted which the Corporation at a Meeting of Shareholders may
transact.
10.8 CHAIRMAN, SECRETARY AND SCRUTINEERS. The chairman of any Meeting of
Shareholders shall be the first mentioned of such of the following officers as
have been appointed and who is present at the meeting: chairman of the Board,
managing director, president, or a vice-president who is a Shareholder. If no
such officer is present within 15 minutes from the time fixed for holding the
meeting, the persons present and entitled to vote shall choose one of their
number to be chairman. If the secretary of the Corporation is absent, the
chairman shall appoint some person, who need not be a Shareholder, to act as
secretary of the meeting. If desired, one or more scrutineers, who need not be
Shareholders, may be appointed by a resolution or by the chairman with the
consent of the meeting.
10.9 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to be present at
a Meeting of Shareholders shall be those entitled to vote thereat, the
Directors and auditor of the Corporation and others who, although not entitled
to vote, are entitled or required under any provision of the Act or the
Articles or By-laws to be present at the meeting. Any other person may be
admitted only on the invitation of the chairman of the meeting or with the
consent of the meeting.
10.10 QUORUM. A quorum for the transaction of business at any Meeting of
Shareholders shall be two persons present in person, each being a Shareholder
entitled to vote thereat or a duly appointed proxyholder or representative for a
Shareholder so entitled, and holding or representing not less than 10% of the
shares entitled to vote at the Meeting of Shareholders. If a quorum is present
at the opening of any Meeting of Shareholders, the Shareholder or Shareholders
present or represented may proceed with the business of the meeting
notwithstanding that a quorum is not present throughout the meeting. If a quorum
is not present at the time appointed for the meeting or within a reasonable time
thereafter as the Shareholders may determine, the Shareholders present or
represented may adjourn the meeting to a fixed time and place but may not
transact any other business.
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10.11 RIGHT TO VOTE. Every person named in the list referred to in Section 10.5
shall be entitled to vote the shares shown thereon opposite his name at the
meeting to which such list relates, except to the extent that (a) where the
Corporation has fixed a record date in respect of such meeting, such person has
transferred any of his shares after such record date or, where the Corporation
has not fixed a record date in respect of such meeting, such person has
transferred any of his shares after the date on which such list is prepared, and
(b) the transferee, having produced properly endorsed certificates evidencing
such shares or having otherwise established that he owns such shares, has
demanded not later than ten days before the meeting that his name be included in
such list. In any such excepted case the transferee shall be entitled to vote
the transferred shares at such meeting.
10.12 PROXYHOLDERS AND REPRESENTATIVES. Every Shareholder entitled to vote at a
Meeting of Shareholders may appoint a proxyholder, or one or more alternate
proxyholders, as his nominee to attend and act at the meeting in the manner and
to the extent authorized and with the authority conferred by the proxy. A proxy
shall be in writing executed by the Shareholder or his attorney and shall
conform with the requirements of the Act. Alternatively, every such Shareholder
which is a body corporate or association may authorize by resolution of its
directors or governing body an individual to represent it at a Meeting of
Shareholders and such individual may exercise on the Shareholder's behalf all
the powers it could exercise if it were an individual Shareholder. The authority
of such an individual shall be established by depositing with the Corporation a
certified copy of such resolution, or in such other manner as may be
satisfactory to the secretary of the Corporation or the chairman of the meeting.
Any such proxyholder or representative need not be a Shareholder. A proxy ceases
to be valid one year from its date.
10.13 TIME FOR DEPOSIT OF PROXIES. The Board may fix a time not exceeding 48
hours, excluding Saturdays and holidays, preceding any Meeting or adjourned
Meeting of Shareholders before which time proxies to be used at the meeting must
be deposited with the Corporation or an agent thereof, and any period of time so
fixed shall be specified in the notice calling the meeting. A proxy shall be
acted upon only if, prior to the time so specified, it shall have been deposited
with the Corporation or an agent thereof specified in such notice or if, no such
time having been specified in such notice, it has been received by the secretary
of the Corporation or by the chairman of the meeting or any adjournment thereof
prior to the time of voting.
10.14 JOINT SHAREHOLDERS. If two or more persons hold shares jointly, any one of
them present in person or duly represented at a Meeting of Shareholders may, in
the absence of the other or others, vote the shares; but if two or more of those
persons are present in person or represented and vote, they shall vote as one
the shares jointly held by them.
10.15 VOTES TO GOVERN. At any Meeting of Shareholders every question shall,
unless otherwise required by the Articles or By-laws or by law, be determined by
a majority of the votes cast on the question. In case of an equality of votes
either upon a show of hands or upon a poll, the chairman of the meeting shall
not be entitled to a second or casting vote.
10.16 SHOW OF HANDS. Subject to the Act, any question at a Meeting of
Shareholders shall be decided by a show of hands, unless a ballot thereon is
required or demanded as hereinafter provided, and upon a show of hands every
person who is present and entitled to vote shall have one vote. Whenever a vote
by show of hands shall have been taken upon a question, unless a ballot thereon
is so required or demanded, a declaration by the
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chairman of the meeting that the vote upon the question has been carried or
carried by a particular majority or not carried and an entry to that effect in
the minutes of the meeting shall be prima facie evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or against
any resolution or other proceeding in respect of the said question, and the
result of the vote so taken shall be the decision of the Shareholders upon the
said question.
10.17 BALLOTS. On any question proposed for consideration at a Meeting of
Shareholders, and whether or not a show of hands has been taken thereon, the
chairman may require a ballot or any person who is present and entitled to vote
on such question at the meeting may demand a ballot. A ballot so required or
demanded shall be taken in such manner as the chairman shall direct. A
requirement or demand for a ballot may be withdrawn at any time prior to the
taking of the ballot. If a ballot is taken each person present shall be
entitled, in respect of the shares which he is entitled to vote at the meeting
upon the question, to that number of votes provided by the Act or the Articles,
and the result of the ballot so taken shall be the decision of the Shareholders
upon the said question.
10.18 ADJOURNMENT. The chairman at a Meeting of Shareholders may, with the
consent of the meeting and subject to such conditions as the meeting may decide,
adjourn the meeting from time to time and from place to place. If a Meeting of
Shareholders is adjourned for less than 30 days, it shall not be necessary to
give notice of the adjourned meeting, other than by announcement at the earliest
meeting that is adjourned; Subject to the Act, if a Meeting of Shareholders is
adjourned by one or more adjournments for an aggregate of 30 days or more,
notice of the adjourned meeting shall be given as for an original meeting.
10.19 RESOLUTIONS IN LIEU OF MEETING. A resolution in writing signed by all the
Shareholders entitled to vote on that resolution is as valid as if it had been
passed at a meeting of the Shareholders. Any such resolution in writing may be
signed in one or more counterparts, all of which together shall constitute one
and the same resolution, and a facsimile of a signed counterpart of such
resolution shall be deemed to be as valid as an originally signed counterpart
unless it is proven that such facsimile does not accurately reflect an authentic
originally signed counterpart.
SECTION 11
NOTICES
11.1 METHOD OF GIVING NOTICES. Any notice (which term includes any communication
or document) to be given (which term includes sent, delivered or served)
pursuant to the Act, the regulations thereunder, the Articles, the By-laws or
otherwise to a Shareholder, Director, officer or auditor of the Corporation, or
member of a committee of the Board shall be sufficiently given if delivered
personally to the person to whom it is to be given or if mailed to him at his
recorded address by prepaid mail. A notice so delivered shall be deemed to have
been received when it is delivered personally and a notice so mailed shall be
deemed to have been received on the fifth day after it is deposited in a post
office or public letter box. The Secretary may change or cause to be changed the
recorded address of any Shareholder, Director, officer or auditor of the
Corporation, or member of a committee of the Board in accordance with any
information believed by him to be reliable.
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11.2 NOTICE TO JOINT SHAREHOLDERS. If two or more persons are registered as
joint holders of any share of the Corporation, any notice may be addressed to
all such joint holders, but notice addressed to one of such persons shall be
sufficient notice to all of them.
11.3 COMPUTATION OF TIME. In computing the date when notice must be given under
any provision requiring a specified number of days notice of any meeting or
other event, the day of giving the notice shall be excluded and the day of the
meeting or other event shall be excluded.
11.4 UNDELIVERED NOTICES. If any notice given to a Shareholder pursuant to
Section 11.1 is returned on three consecutive occasions because he cannot be
found, the Corporation shall not be required to give any further notices to such
Shareholder until he informs the Corporation in writing of his new address.
11.5 OMISSIONS AND ERRORS. The accidental omission to give any notice to any
Shareholder, Director, officer or auditor of the Corporation, or member of a
committee of the Board or the non-receipt of any notice by any such person or
any error in any notice not affecting the substance thereof shall not invalidate
any action taken at any meeting held pursuant to such notice or otherwise
founded thereon.
11.6 PERSONS ENTITLED BY DEATH OR OPERATION OF LAW. Every person who, by
operation of law, transfer, death of a Shareholder or any other means
whatsoever, shall become entitled to any share of the Corporation, shall be
bound by every notice in respect of such share which shall have been duly given
to the Shareholder from whom he derives his title to such share prior to his
name and address being entered on the securities register (whether such notice
was given before or after the happening of the event upon which he became so
entitled) and prior to his furnishing to the Corporation the proof of authority
or evidence of his entitlement prescribed by the Act.
11.7 WAIVER OF NOTICE. Any Shareholder, proxyholder or other person entitled to
attend a Meeting of Shareholders, or any director, officer or auditor of the
Corporation, or member of a committee of the Board may at any time waive any
notice, or waive or abridge the time for any notice, required to be given to
him under the Act, the regulations thereunder, the Articles, the By-laws or
otherwise, and such waiver or abridgment, whether given before or after the
meeting or other event of which notice is required to be given, shall cure any
default in the giving or in the time of such notice, as the case may be. Any
such waiver or abridgment shall be in writing except a waiver of notice of a
Meeting of Shareholders, a meeting of the Board or a committee of the Board
which may be given in any manner.
11.8 INTERPRETATION. In this By-law, "Recorded Address" means in the case of a
Shareholder his address as recorded in the securities register; and in the case
of joint Shareholders the address appearing in the securities register in
respect of such joint holding or the first address so appearing if there are
more than one; in the case of an officer, auditor or member of a committee of
the Board of the Corporation, his latest address as recorded in the records of
the Corporation; and in the case of a Director, his latest address as shown in
the records of the Corporation or in the most recent notice filed under the Act,
whichever is the more current.
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SECTION 12
EFFECTIVE DATE
12.1 EFFECTIVE DATE. This By-law shall come into force when made by the
Board in accordance with the Act.
12.2 REPEAL. All previous By-laws of the Corporation are repealed as of the
coming into force of this By-law. Such repeal shall not affect the previous
operation of any By-law so repealed or affect the validity of any act done or
right, privilege, obligation or liability acquired or incurred under, or the
validity of any contract or agreement made pursuant to, or the validity of any
articles (as defined in the Act) or predecessor charter documents of the
Corporation obtained pursuant to, any such By-law prior to its repeal. All
officers and persons acting under any By-law so repealed shall continue to act
as if appointed under the provisions of this By-law and all resolutions of the
Shareholders or the Board or a committee of the Board with continuing effect
passed under any repealed By-law shall continue to be good and valid except to
the extent inconsistent with this By-law and until amended or repealed.
Approved by the Board of Directors on the 23rd day of June,
1995 and effective as of the date of the Articles of Continuance of the
Corporation under the laws of the Province of Alberta.
/s/ BILL JAYROE
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President
/s/ MICHAEL NOONAN
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Secretary
CONFIRMED by the Shareholders in accordance with the Act the 16th day
of August, 1995.
/s/ MICHAEL NOONAN
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Secretary
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