Exhibit 3.2
Consumer and Corporate Affairs Canada
Consommation et Corporations Canada
FORM 4
FORMULE 4
Canada Business Corporations Act
Loi sur les societes Commerciales canadiennes
ARTICLES OF AMENDMENT (SECTION 27 OR 171)
CLAUSES MODIFICATRICES
(ARTICLE 27 OU 171)
1. Name of Corporation - Denomination de la societe
imagicTV Inc.
2. Corporation No. - No. de la societe
345065-1
3. The articles of the above-named corporation are amended as follows:
Les status de la societe ci-haut mentionnee sont modifies de la facon suivante:
(i) The name of the Corporation shall be changed to ImagicTV Inc.
(ii) The number of directors shall be changed to Minimum of one (1) maximum of
ten (10) as the directors may from time to time determine.
(iii) The Rights, Privileges, Restrictions and Conditions attached to the Class
A Shares, the Class B Shares and the Class C Shares be amended as set out
in Schedule 1 hereto.
Date
June 22, 1998
Signature
Description of Office - Description du poste
Assistant Secretary
FOR DEPARTMENTAL USE ONLY - A L'USAGE DU MINISTERE SEULEMENT
Filed - Deposee
Jul 06 1998
Schedule "1"
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The Rights, Privileges, Restrictions and Conditions attached to the Class
A Shares, the Class B Shares and the Class C Shares be amended to the
intent that the provisions under "Optional Conversion of Class B Shares to
Class A Shares" in Schedule I to the Articles of Incorporation be deleted
and the following substituted in the place thereof.
OPTIONAL CONVERSION OF CLASS B SHARES TO CLASS A SHARES
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If:
a "Conversion Event" occurs, as defined in the Technology Transfer Option
Agreement dated January 5, 1998 and entered into between the Corporation,
the New Brunswick Telephone Company, Limited and 506048 N.B. Ltd.;
a take-over bid (as defined in the Securities Act (Ontario)) is made with
respect to the Class A Shares;
an acquisition of control of the Corporation (for purposes of the Income
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Tax Act (Canada)) occurs;
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the Corporation proposes to sell, lease or otherwise dispose of the whole,
or substantially the whole, of the undertaking of the Corporation (other
than to one or more wholly-owned subsidiaries of the Corporation or other
than by way of mortgage or any other secured debt obligation); or
the Corporation proposes to voluntarily liquidate, dissolve or wind-up or
distribute its assets among its shareholders for the purpose of winding-up
its affairs;
then each holder of Class B Shares shall be entitled at any time and from
time to time thereafter to have all or any part of the Class B Shares held by
him converted into fully paid and non-assessable Class A Shares as the same
shall be constituted at the time of such conversion on the basis of one Class A
Share for each Class B Share in respect of which the conversion right is
exercised.
The conversion right provided for in this Article may be exercised by
delivery to the Secretary of the Corporation of the certificate or certificates
representing the Class B Shares in respect of which the holder thereof desires
to exercise such right of conversion with the direction to convert on the
reverse of such certificate or certificates or a form to like effect, duly
completed and executed by the person registered on the books of the Corporation
as the holder of the Class B Shares in respect of which such right is being
exercised or by his duly authorized attorney. Upon receipt of such certificate
or certificates and the direction to convert, the Corporation shall issue a
certificate representing Class A Shares upon the basis above prescribed and in
accordance with the provisions hereof to the registered holder of the Class B
Shares in respect of which such right of conversion is being exercised. The
holder shall pay any governmental or other tax imposed on or in respect of such
conversion right. If less than all the Class B Shares represented by any
certificate are to be converted, the holder shall be entitled to be issued a new
certificate for the Class B Shares representing the shares comprised in the
original certificate which are not to be converted.
RESOLUTION OF THE DIRECTORS OF
imagicTV Inc.
BE IT RESOLVED THAT:
1. The existing By-laws of the Corporation be repealed effective January 21,
1998;
2. The following be enacted as the By-laws of the Corporation effective
January 21, 1998.
BY-LAW NO. 1
A BY-LAW TO REGULATE
THE BUSINESS AND AFFAIRS OF
imagicTV Inc.
1. INTERPRETATION
1.01 Definitions. In this By-law and all other by-laws and resolutions of the
Corporation, unless the context otherwise requires:
(a) the following terms shall have the means specified:
(i) "Act" means the Canada Business Corporations Act or any statute
which may be substituted therefor, as amended from time to time;
(ii) "articles" means the original or restated articles of
incorporation, articles of amendment, articles of amalgamation,
articles of continuance, articles of arrangement, articles of
dissolution, articles of reorganization or articles of revival
of the Corporation and includes any amendments;
(iii) "board" means the board of directors of the Corporation;
(iv) "Corporation" means imagicTV Inc.
(v) "director" means a member of the board; and
(vi) "meeting of shareholders" means an annual meeting of
shareholders of the Corporation, or a special meeting of
shareholders of the Corporation, or both, and includes a meeting
of any class or series of any class of shareholders of the
Corporation;
(b) terms used herein that are defined in the Act shall have the meanings
given to those terms in the Act; and
(c) words importing the masculine gender shall include the feminine and
neuter genders, and words importing the singular number shall include
the plural number, and vice versa.
2. SHAREHOLDERS
2.01 Annual and Special Meetings. The board shall call an annual meeting of
shareholders not later than 15 months after the holding of the last
preceding annual meeting. The board may at any time call a special meeting
of shareholders.
2.02 Place of Meetings. Meetings of shareholders shall he held at the registered
office of the Corporation or elsewhere in the municipality in which the
registered office is situate or, if the board shall so determine, at some
other place in Canada.
2.03 Notice of Meetings. Notice in writing of the time and place of each meeting
of shareholders shall be sent not less than 21 days nor more than 50 days
before the meeting to each shareholder entitled to vote at the meeting, to
each director and to the auditors of the Corporation. The accidental
failure to give notice of a meeting of shareholders to any person entitled
thereto or any error in such notice not affecting the substance thereof
shall not invalidate any action taken at the meeting.
2.04 Quorum. At any meeting of shareholders, the holders present in person or
represented by proxy of at least a majority of the outstanding shares of
the Corporation entitled to be voted at the meeting shall constitute a
quorum for the transaction of business.
2.05 Chairman and Secretary. The chairman of the board or, in the absence of the
chairman, the president or, in the absence of the president, a vice
president shall be chairman of any meeting of the shareholders and, if none
of the said officers be present within 15 minutes after the time appointed
for holding the meeting, the shareholders present and entitled to vote
shall choose a chairman from amongst themselves. The secretary of the
Corporation shall act as secretary at any meeting of shareholders or, if
the secretary of the Corporation be absent, the chairman of the meeting
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 resolution or by the chairman with the
consent of the meeting.
2.06 Show of Hands. 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. Upon a show of hands every person
who is present and entitled to vote thereon 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 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.
2.07 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, or any shareholder or proxyholder
entitled to vote 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 a ballot. If a ballot is taken,
each person present shall be entitled, in respect of the shares which
each person is entitled 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.
2.08 Dividend. A dividend payable in cash shall be paid by cheque drawn on
the Corporation's bankers or one of them to the order of each
registered holder of shares of the class or series in respect of
which it has been declared and mailed by prepaid ordinary mail to
such registered holder at such holder's address recorded in the
Corporation's securities register, unless in each case 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
address recorded in the securities register of the Corporation. 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.
2.09 Non-receipt of Cheques. In the event of non-receipt of any dividend
cheque by the person to whom it is sent, 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.
2.10 Unclaimed Dividends. Any dividends unclaimed after a period of 6
years from the date on which the same has been declared to be payable
shall be forfeited and shall revert to the Corporation.
3. DIRECTORS AND OFFICERS
3.01 Number of Directors and Quorum. Until changed in accordance with the
Act, the board shall consist of such number of directors not greater
than 9 not less than 1 as the board may from time to time determine.
A quorum for meetings of the Board shall consist of a majority of the
members of the Board, with at least one (1) nominee of the NBT Holder
and of the KRP Holder (as those terms are defined in the Shareholder
Agreement between 506048 N.B. Ltd., The New Brunswick Telephone
Company, Limited, imagicTV Inc. and Kanata Research Park Corporation
made as of January 21, 1998) being present. In the event that a
quorum is not obtained at any meeting, the meeting shall be adjourned
and may be reconvened upon 14 days notice to the directors. In the
event a quorum is not obtained at the reconvened meeting, the meeting
shall be again adjourned and when reconvened, the quorum shall be any
five directors. Where the required number of directors is one, the
sole director of the Corporation may constitute a meeting.
3.02 Election and Term. Directors shall be elected by the shareholders at
each annual meeting of shareholders at which an election of directors
is required and shall hold office for a term expiring not later than
the close of the next annual meeting of shareholders following the
election. The number of directors to be elected at any such meeting
shall be that number most recently determined by the board. The
election need not be by ballot unless a ballot is demanded by any
shareholder or required by the chairman in accordance with section
2.07. If an election of directors is not held at an annual meeting of
shareholders at which such election is required, the directors then
in office shall continue in office until their successors are
elected.
3.03 Meetings of Board. The Board shall meet at least once in every 12
month period during the term of this Agreement and in the event that
a meeting of the Board is not held during any 3 month period, any
director may call a meeting of the Board on 14 days prior notice to
the other directors. At each meeting of the Board, unless waived
unanimously by the Board, the President shall report fully to the
Board with respect to the current status of the operations of the
Corporation and with respect to all major developments or planned
action involving the Corporation and shall present to the meeting
complete current financial information with respect to the
Corporation.
3.04 Place of Meetings. Meetings of the board may be held at the
registered office of the Corporation or at any other place within or
outside Canada.
3.05 Calling of Meetings. Meetings of the board shall be held from time to
time at such place, on such day and at such time as the board, the
chairman of the board, the president or any two directors may
determine.
3.06 Notice. Written notice of the time and place of each meeting of the
board shall be given to each director at least 48 hours before the
meeting. A notice of meeting of the board need not specify the
business to be transacted at the meeting except as may be required by
the Act. The accidental failure to give notice of a meeting of the
board to a director or any error in such notice not affecting the
substance thereof shall not invalidate any action taken at the
meeting.
3.07 Votes to Govern. At all meetings of the board any question shall be
decided by a majority of the votes cast on the question and in the
case of an equality of votes the chairman of the meeting shall, in
addition to his original vote, cast a second or deciding vote. Any
question at a meeting of the board shall be decided by a show of
hands unless a ballot is required to demanded.
3.08 Chairman and Secretary. The chairman of the board or, in the
chairman's absence, the vice-chairman, or in the vice-chairman's
absence, the president or, in the president's absence, a vice-
president shall be chairman of any meeting of the board. If none of
the said officers is present, the directors present shall choose one
of their number to be the chairman. The secretary of the Corporation
shall act as secretary at any meeting of the board and, if the
secretary of the Corporation be absent, the chairman of the meeting
shall appoint a person who need not be a director to act as secretary
of the meeting.
3.09 Committees. The board may elect or appoint additional committees
composed of directors and/or other persons which may exercise such
powers as, subject to any limitations prescribed by the Act, the
board may delegate to them and shall have such other functions as the
board may determine.
3.10 Appointment of Officers. The board may from time to time appoint a
president, one or more vice-presidents, a secretary, a treasurer and
such other officers as the board may determine, including one or more
assistants to any of the officers so appointed. A chairman shall be
elected from among the directors nominated by the NBT Holder.
3.11 Indemnity of Directors and Officers. Except in respect of an action
by or on behalf of the Corporation or body corporate to procure a
judgment in its favour, the Corporation shall indemnify a director or
officer of the Corporation, a former director or officer of the
Corporation or a person who acts or acted at the Corporation's
request as a director or officer of a body corporate of which the
Corporation is or was
a shareholder or creditor (or a person who undertakes or has
undertaken any liability on behalf of the Corporation or at the
Corporation's request on behalf of any such body corporate) and such
director or officer's heirs and legal representatives, against all
costs, shares and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by such director or
officer in respect of any civil, criminal or administrative action or
proceeding to which such director or officer is made a party by
reason of being or having been a director or officer of such
Corporation or body corporate (or by reason of having undertaken such
liability); and the Corporation shall with the approval of a court
indemnify a person in respect of an action by or on behalf of the
Corporation or body corporate, to procure a judgment in its favour,
to which such person is made a party by reason of being or having
been a director or an officer of the Corporation or body corporate,
against all costs, charges and expenses reasonably incurred by such
director or officer in connection with such action;
if in each case such director or officer:
(a) acted honestly and in good faith with a view of 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, had reasonable grounds for believing that
his or her conduct was lawful.
Notwithstanding the foregoing, the Corporation shall, without requiring the
approval of a court, indemnify any person referred to above, in respect of
an action by or on behalf of the Corporation or body corporate to procure a
judgment in its favour who has been substantially successful on the merits
in the defence of any civil, criminal or administrative action or
proceeding to which such person is made a party by reason of being or
having been a director or officer of the Corporation or body corporate,
against all costs, charges and expenses reasonably incurred by such person
in respect of such action or proceeding, provided that such person has
satisfied the appropriate conditions referred to in (a) and (b) above.
3.12 Insurance. Subject to the limitations contained in the Act, the Corporation
may purchase and maintain insurance for the benefit of any person referred
to in section 3.10 as the board may from time to time determine.
4. EXECUTION OF DOCUMENTS
4.01 The Board may from time to time determine the officer or other persons by
whom any particular document or instrument or class of documents or
instruments of the Corporation shall be executed and the manner of
execution thereof, including the use of facsimile reproductions of any or
all signatures and the use of the corporate seal or a facsimile
reproduction thereof.
The foregoing resolution is signed by all the directors of the Corporation
pursuant to subsection 117(1) of the Canada Business Corporations Act as of
and effective from the 21/st/ day of January, 1998.
Peter G. Jollymore
G.L. Pond
Curtis I. Howe
Terry Matthews
Tom Vallis