Exhibit 3.3
BY-LAW NO. 1
of
COGNOS INCORPORATED
(the "Corporation")
(as amended by the Board of Directors on April 10, 2002)
1. REGISTERED OFFICE
1.1. The registered office of the Corporation shall be in the province or
territory of Canada specified in the articles of the Corporation and at such
location in the province or territory as the directors may from time to time
determine.
2. CORPORATE SEAL
2.1. Until changed by the directors the corporate seal of the Corporation
shall be in the form impressed in the margin hereof.
3. DIRECTORS
3.1. Number and Quorum. The number of directors shall be determined by the
directors but shall be not fewer than the minimum and not more than the
maximum provided in the articles. A majority of directors or such greater or
lesser number as the directors may from time to time determine shall
constitute a quorum for the transaction of business at any meeting of
directors.
3.2. Qualification. No person shall be qualified to be a director if that
person is less than eighteen years of age; is of unsound mind and has been so
found by a court in Canada or elsewhere; or has the status of a bankrupt. At
least twenty-five percent of the directors shall be resident Canadians.
3.3. Election and Term of Office. The directors shall be elected at each
annual meeting of shareholders of the Corporation and each director shall hold
office until the close of the first annual meeting following that director's
election. If an election of directors is not held at an annual meeting of
shareholders, the directors then in office shall continue in office until
their successors are elected. Retiring directors are eligible for re-election.
3.4. Vacation of Office. A director ceases to hold office if the director dies
while holding office, is removed from office by the shareholders, ceases to be
qualified for election as a director or resigns by a written resignation
received by the Corporation. A written resignation of a director becomes
effective at the time it is received by the Corporation, or at the time
specified in the resignation, whichever is later.
3.5. Removal of Directors. The shareholders may by ordinary resolution at a
special meeting of shareholders remove any director or directors from office
provided that where the holders of any class or series of shares have an
exclusive right to elect one or more directors, a director so elected may only
be removed by an ordinary resolution at a meeting of the shareholders of that
class or series. A vacancy created by the removal of a director may be filled
at the meeting of the shareholders at which the director is removed.
3.6. Vacancies. Subject to the Act, a quorum of directors may fill a vacancy
among the directors. A director
82
appointed or elected to fill a vacancy holds office for the unexpired term of
the director's predecessor.
3.7. Action by Directors. The directors shall manage, or supervise the
management of, the business and affairs of the Corporation. Subject to
sections 3.8 and 3.9 the powers of the directors may be exercised at a meeting
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 directors.
Where there is a vacancy in the board of directors the remaining directors may
exercise all the powers of the board so long as a quorum remains in office.
3.8. Canadian Residents Required at Meetings. The directors shall not transact
business at a meeting other than filling a vacancy in the board unless at
least twenty-five percent of the directors present are resident Canadians or
if a resident Canadian director who is unable to be present approves in
writing or by telephonic, electronic or other communication facility the
business transacted at the meeting and the required number of resident
Canadian directors would have been present had that director been present at
the meeting.
3.9. Telephonic or Electronic Meetings. If all the directors of the
Corporation present at or participating in the meeting consent, a meeting of
directors or of a committee of directors may be held by means of a telephonic,
electronic or other communication facility that permits all participants to
communicate adequately with each other during the meeting, and a director
participating in such a meeting by such means is deemed to be present at that
meeting.
3.10. Place of Meetings. Meetings of directors may be held at any place within
or outside of Canada.
3.11. Calling of Meetings. Meetings of the directors shall be held at such
time and place as the Chair of the Board or any two directors may determine.
3.12. Notice of Meeting. Notice of the time and place of each meeting of
directors shall be given to each director by telephone not less than 48 hours
before the time of the meeting or by written notice not less than four days
before the day of the meeting and, subject to the Act, need not specify the
purpose of or the business to be transacted at the meeting. Meetings of the
directors may be held at any time without notice if all the directors have
waived or are deemed to have waived notice.
3.13. First Meeting of New Board. No notice shall be necessary for the first
meeting of newly-elected directors held immediately following their election
at a meeting of shareholders.
3.14. Adjourned Meeting. Notice of an adjourned meeting of directors is not
required if the time and place of the adjourned meeting is announced at the
original meeting.
3.15. Regular Meetings. The directors may appoint a day or days in any month
or months for regular meetings and shall designate the place and time at which
such meetings are to be held. A copy of any resolution of directors fixing the
place and time of regular meetings of the board shall be sent to each director
forthwith after being passed, and no other notice shall be required for any
such regular meeting.
3.16. Chair. The Chair of the Board, or in that person's absence the Vice-
Chair (if one be appointed), or in that person's absence, the President (if a
director), or in that person's absence a director chosen by the directors at
the meeting shall be the chair of any meeting of directors.
3.17. Voting at Meetings. Questions arising at any meeting of directors shall
be decided by a majority of votes. In the case of an equality of votes, the
chair of the meeting, in addition to an original vote, shall have a second or
casting vote.
3.18. Conflict of Interest. A director or officer, or any individual acting in
a similar capacity, 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
83
material transaction, whether entered into or proposed with the Corporation
shall disclose the nature and extent of that interest at the time and in the
manner provided by the Act.
3.19. Remuneration and Expenses. The directors shall be paid such remuneration
as the directors may from time to time by resolution determine. The directors
are also be entitled to be paid their traveling and other expenses properly
incurred by them in going to, attending and returning from meetings of
directors or committees of directors. A director or officer of the Corporation
may be employed by or perform services for the Corporation otherwise than as a
director or officer, and may be a member of a firm or a shareholder, director
or officer of a body corporate which is employed by or performs services for
the Corporation, and such director, officer, firm or body corporate may
receive proper remuneration for this employment or services.
4. COMMITTEES
4.1. Committees of Directors. The directors may appoint from among their
number one or more committees of directors, establish their duties and
responsibilities, and delegate to them any of the powers of the directors
except those which under the Act a committee of directors has no authority to
exercise.
4.2. Audit Committee. The directors shall appoint from among their number an
audit committee composed of not fewer than three directors. No director who is
also an officer of the Corporation, or who is otherwise related to the
Corporation, except by reason of being a director or shareholder, may be a
member of the audit committee. In addition to such other duties as directors
may establish, the audit committee shall review the interim and annual
financial statements of the Corporation and shall report thereon to the
directors of the Corporation before such financial statements are approved by
the directors. In addition, the audit committee shall have such other duties,
responsibilities and powers as the directors may determine. 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 at
each meeting; 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 the
auditor. The auditor of the Corporation or any member of the audit committee
may call a meeting of the committee.
4.3. Transaction of Business. Subject to section 3.9, the powers of a
committee appointed by the directors may be exercised at a meeting at which a
quorum is present or by resolution in writing signed by all members of the
committee entitled to vote on that resolution at a meeting of the committee.
Meetings of a committee may be held at any place in or outside Canada.
4.4. Procedure. Unless otherwise determined by the directors each committee
has the power to fix its quorum and to regulate its procedure.
5. OFFICERS
5.1. General. The directors may from time to time appoint a Chair of the
Board, a vice-Chair, a President, one or more Vice-Presidents, a Secretary, a
Treasurer and such other officers as the directors may determine, including
one or more assistants to any of the officers so appointed. The officers so
appointed may but need not be members of the board of directors except as
provided in sections 5.3 and 5.4.
5.2. Term of Office. Any officer may be removed by the directors at any time
but such removal shall not affect the rights of that officer under any
contract of employment with the Corporation. Otherwise, each officer shall
hold office until the officer's successor is appointed.
5.3. The Chair of the Board. The Chair of the Board, if any, shall be
appointed from among the directors and shall, when present, be chair of
meetings of shareholders and directors and otherwise manage the processes of
the board of directors and be responsible for ensuring that it discharges its
responsibilities. If the Chair of the Board is
84
a full-time employee of the Corporation, that person may also perform such of
the powers and duties assigned to the President, including those of chief
executive officer, as the directors may determine.
5.4. Vice-Chair of the Board. The Vice-Chair of the Board, if any, shall be
appointed from among the directors and shall act in the absence or incapacity
of the Chair and shall have such other powers and duties as the directors may
determine.
5.5. The President. Unless the directors otherwise determine, the President
shall be the chief executive officer of the Corporation and shall have general
supervision of its business and affairs and, if a director and in the absence
of the Chair or the Vice-Chair of the Board, shall be chair at meetings of
shareholders and directors when present.
5.6. Vice-President. A Vice-President shall have such powers and duties as the
directors or the President may determine.
5.7. Secretary. The Secretary shall give, or cause to be given, all notices
required to be given to shareholders, directors, auditors and members of
committees; shall attend and be secretary of all meetings of shareholders,
directors and committees appointed by the directors and shall enter or cause
to be entered in books kept for that purpose minutes of all proceedings at
such meetings; shall be the custodian of the corporate seal of the Corporation
and of all records, books, documents and other instruments belonging to the
Corporation; and shall have such other powers and duties as the directors or
the President may determine.
5.8. Treasurer. The Treasurer shall keep proper books of account and
accounting records with respect to all financial and other transactions of the
Corporation; shall be responsible for the deposit of money, the safe-keeping
of securities and the disbursement of the funds of the Corporation; shall
render to the directors when required an account of all the Treasurer's
transactions and of the financial position of the Corporation; and the
Treasurer shall have such other powers and duties as the directors or the
President may determine.
5.9. Other Officers. The powers and duties of all other officers shall be such
as the directors or the President may determine. 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 directors or the President otherwise
direct.
5.10. Variation of Duties. The directors may, from time to time, vary, add to
or limit the powers and duties of any officer.
5.11. Conflict of Interest. An officer shall disclose the officer's interest
in any material contract or proposed material contract in accordance with
section 3.18.
5.12. Agents and Attorneys. The directors shall have power from time to time
to appoint agents or attorneys for the Corporation within or outside of Canada
with such powers (including the power to sub-delegate) of management,
administration or otherwise as the directors may specify.
6. PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
6.1. Indemnification of Directors and Officers. The Corporation shall
indemnify a director or officer, a former director or officer or a person who
acts or acted at the Corporation's request as a director or officer, or an
individual acting in a similar capacity, of another entity, and the heirs and
legal representatives of such a person to the extent permitted by the Act.
6.2. Insurance. The Corporation may purchase and maintain insurance for the
benefit of any person referred to in section 6.1 to the extent permitted by
the Act.
85
7. MEETINGS OF SHAREHOLDERS
7.1. Annual Meetings. The annual meeting of the shareholders shall be held at
the registered office of the Corporation or at such other place within Canada
as the directors may determine, or any place outside Canada specified in the
Articles or agreed to by all the shareholders entitled to vote at that
meeting, at such time in each year as the directors may determine, for the
purpose of receiving the reports and statements required to be placed before
the shareholders at an annual meeting, electing directors, appointing an
auditor or auditors, and for the transaction of such other business as may
properly be brought before the meeting.
7.2. Other Meetings. The directors shall have power at any time to call a
special meeting of shareholders to be held at such time and at such place
within Canada as the directors may determine, or any place outside Canada
specified in the Articles or agreed to by all the shareholders entitled to
vote at the meeting, as may be determined by the board of directors.
7.3. Notice of Meetings. Notice of the time and place of a meeting of
shareholders shall be given not less than twenty-one days nor more than sixty
days before the meeting to each holder of shares carrying voting rights at the
close of business on the record date for notice, to each director and to the
auditor of the Corporation. Notice of a meeting of shareholders at which
special business is to be transacted shall state the nature of that business
in sufficient detail to permit the shareholder to form a reasoned judgement
thereon and shall include the text of any special resolution to be submitted
to the meeting. All business transacted at a special meeting of shareholders
and all business transacted at an Annual meeting of shareholders, except
consideration of the financial statements, auditor's report, election of
directors and reappointment of the incumbent auditor, shall be deemed to be
special business.
7.4. Record Date for Notice. For the purpose of determining shareholders
entitled to receive notice of a meeting of shareholders, the directors may fix
in advance a date as the record date for such determination of shareholders,
but the record date shall not precede by more than sixty days or by less than
twenty-one days the date on which the meeting is to be held. Where no record
date is fixed, the record date for the determination of shareholders entitled
to receive notice of a meeting of shareholders 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. Subject to the provisions of the Act, if a record date is fixed, unless
notice of the record date is waived in writing by every holder of a share of
the class of shares or series affected whose name is set out in the securities
register at the close of business on the day the directors fix the record
date, notice thereof shall be given, not less than seven days before the date
so fixed, by advertisement in a newspaper published or distributed in the
place where the Corporation has its registered office and in each place in
Canada where it has a transfer agent or where a transfer of its shares may be
recorded and by written notice to each stock exchange in Canada on which the
shares of the Corporation are listed for trading.
7.5. Record Date for Voting. For the purpose of determining shareholders
entitled to vote at a meeting of shareholders, the directors may fix in
advance a date as the record date for such determination of shareholders, but
the record date shall not precede by more than sixty days or by less than
twenty-one days the date on which the meeting is to be held. If a record date
is fixed, unless notice of the record date is waived in writing by every
holder of a share of the class or series affected whose name is set out in the
securities register at the close of business on the day the directors fix the
record date, notice thereof shall be given, not less than seven days before
the date so fixed, by advertisement in a newspaper published or distributed in
the place where the Corporation has its registered office and in each place in
Canada where the transfer agent or where a transfer of its shares may be
recorded and by written notice to each stock exchange on which the shares of
the Corporation are listed for trading.
7.6. 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, the auditor and other persons who are entitled or required under
any provision of the Act or the articles or by-laws of the Corporation to
attend a meeting of shareholders of the Corporation. Any other person may be
admitted only on the invitation of the chair of the meeting or with the
consent of the meeting.
86
7.7. Chair. The Chair of the Board, or in the Chair's absence the Vice-Chair
(if one be appointed), or in the Vice-Chair's absence, the President (if a
director), or in the President's absence a person chosen by a vote at the
meeting shall be chair of meetings of shareholders.
7.8. Scrutineers. At each meeting of shareholders one or more scrutineers, who
need not be shareholders, may be appointed by a resolution or by the chair
with the consent of the meeting.
7.9. Quorum. A quorum of shareholders shall be the holders of thirty three and
one-third (33 1/3%) per cent of shares issued, either present in person or as
the duly appointed representative or proxy of a shareholder. A quorum must be
present at the opening of the meeting for the transaction of business but need
not be sustained throughout the meeting.
7.10. Right to Receive Notice. The Corporation shall prepare an alphabetical
list of its shareholders entitled to receive notice of a meeting, showing the
number of shares held by each shareholder, which list shall be prepared,
7.10.1. if a record date for notice is fixed under section 7.4, not later
than ten days after that record date; and
7.10.2. if no record date for notice is fixed under section 7.4, on the
record date for notice established under section 7.4.
7.11. Right to Vote. The Corporation shall prepare a list of shareholders
entitled to vote at a meeting, arranged in alphabetical order and showing the
number of shares held by each shareholder, which list shall be prepared,
7.11.1. if a record date for voting is fixed under section 7.5, not later
than ten days after that record date; and
7.11.2. if no record date for voting is fixed, not later than ten days
after the record date for notice fixed under section 7.4 or, if no record
date for notice was so fixed, then not later than the record date for
notice established under section 7.4, and in both cases the list shall be
prepared as of the record date for notice.
A shareholder whose name appears in the list prepared under this section 7.11
is entitled to vote the shares shown opposite that shareholder's name at the
meeting to which the list relates.
7.12. Joint Shareholders. Where two or more persons hold shares jointly, one
of those holders present at a meeting of shareholders may in the absence of
the others vote the shares, but if two or more of those persons are present,
in person or by proxy, they shall vote as one on the shares jointly held by
them.
7.13. Representatives. Where a body corporate or association is a shareholder
of the Corporation, the Corporation shall recognise any individual authorised
by a resolution of the directors or governing body of the body corporate or
association to represent it at meetings of shareholders of the Corporation. An
individual so authorised may exercise on behalf of the body corporate or
association the individual represents all the powers it could exercise if it
were an individual shareholder.
7.14. Executors and Others. An executor, administrator, committee of a
mentally incompetent person, guardian or trustee and, where a corporation is
such executor, administrator, committee, guardian or trustee of a testator,
intestate, mentally incompetent person, ward or cestui que trust, any duly
appointed representative of such corporation, upon filing with the secretary
of the meeting sufficient proof of the person's appointment, shall represent
the shares in the person's or its hands at all meetings of shareholders of the
Corporation and may vote accordingly as a shareholder in the same manner and
to the same extent as the shareholder of record. If there be more than one
executor, administrator, committee, guardian or trustee, the provisions of
this by-law respecting joint shareholders shall apply.
87
7.15. Proxyholders. Every shareholder entitled to vote at a meeting of
shareholders may by means of a proxy appoint a proxyholder or one or more
alternate proxyholders, who need not be shareholders, as the shareholder's
nominee to attend and act at the meeting in the manner, to the extent and with
the authority conferred by the proxy. A proxyholder or an alternative
proxyholder has the same rights as the shareholder who appointed the
proxyholder to speak at a meeting of shareholders in respect of any matter, to
vote by way of ballot at the meeting and, except where a proxyholder or an
alternative proxyholder has conflicting instructions from more than one
shareholder, to vote at such meeting in respect of any matter by way of any
show of hands. A proxy shall be executed by the shareholder or the
shareholder's attorney authorised in writing or, if the shareholder is a body
corporate, by an officer or attorney thereof duly authorised and shall be
valid only at the meeting in respect of which it is given or any adjournment
thereof. A proxy shall be in such form as may be prescribed from time to time
by the directors or in such other form as the chair of the meeting may accept
and as complies with all applicable laws and regulations.
7.16. Time for Deposit of Proxies. The directors may by resolution fix a time
not exceeding forty-eight hours, excluding Saturdays and holidays, preceding
any meeting or adjourned meeting of shareholders before which time proxies to
be used at that 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.
7.17. Votes to Govern. Subject to the Act and the articles of the Corporation,
at all meetings of shareholders every question shall be decided, either on a
show of hands or by ballot, by a majority of the votes cast on the question.
In case of an equality of votes, the chairman of the meeting shall have a
second or casting vote.
7.18. Electronic Meetings and Voting. If the directors or shareholders call a
meeting of shareholders, the directors or shareholders, as the case may be,
may determine that the meeting of shareholders shall be held entirely by means
of a telephonic, electronic or other communication facility that permits all
participants to communicate adequately with each other during the meeting (a
"communication facility"), and any vote at that meeting of shareholders shall
be held entirely by means of that communication facility. A meeting of
shareholders may also be held at which some, but not all, persons entitled to
attend may participate and vote by means of a communication facility, if the
Corporation makes one available. A person participating in a meeting by such
means is deemed to be present at the meeting. Any vote at a meeting of
shareholders may be held entirely by means of a communication facility, if the
Corporation makes one available, even if none of the persons entitled to
attend otherwise participates in the meeting by means of a communication
facility. For the purpose of voting, a communication facility that is made
available by the Corporation must enable votes to be gathered in a manner that
permits their subsequent verification and permits the tallied votes to be
presented to the Corporation without it being possible for the Corporation to
identify how each shareholder or group of shareholders voted.
7.19. Show of Hands. Voting at a meeting of shareholders shall be by show of
hands, or the functional equivalent of a show of hands by means of electronic,
telephonic or other communication facility, except where a ballot is demanded
by a shareholder or proxyholder entitled to vote at the meeting or where
required by the chair. A ballot may be demanded either before or after any
vote by show of hands or its functional equivalent. Upon a show of hands or
its functional equivalent, every person who is present and entitled to vote
shall have one vote. Whenever a vote by show of hands or its functional
equivalent shall have been taken upon a question, unless a ballot thereon be
required or demanded, an entry in the minutes of a meeting of shareholders to
the effect that the chair declared a resolution to be carried or defeated, in
the absence of evidence to the contrary, is proof of the number or proportion
of the votes recorded in favour of or against the resolution. A demand for a
ballot may be withdrawn at any time prior to taking of a poll on the ballot.
7.20. Ballots. If a ballot is demanded or required, the vote upon the question
shall be taken in such manner as the chair of the meeting shall direct, or as
provided by the electronic, telephonic or other communication facility through
which votes may be cast. Each person present and entitled to vote at the
meeting shall, unless the articles of the Corporation otherwise provide, be
entitled to one vote for each share in respect of which that person is
entitled to vote at the meeting.
7.21. Adjournment. The chair of any meeting of shareholders may, with the
consent of the meeting and subject to such conditions as the meeting may
decide, adjourn the same from time to time and from place to place. If a
88
meeting of shareholders is adjourned for less than thirty days it is not
necessary to give notice of the adjourned meeting other than by announcement
at the earliest meeting that is adjourned. If a meeting of shareholders is
adjourned by one or more adjournments for an aggregate of thirty days or more,
notice of the adjourned meeting shall be given as for an original meeting. Any
business may be brought before or dealt with at any adjourned meeting which
might have been brought before or dealt with at the original meeting in
accordance with the notice calling such original meeting.
7.22. Resolution in Lieu of Meeting. A resolution in writing signed 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 shareholders except where
a written statement in respect thereof has been submitted by a director or
where representations in writing are submitted by the auditor of the
Corporation, in either case, in accordance with the Act.
8. SHARES
8.1. Issue. Subject to the Act and the articles of the Corporation, shares of
the Corporation may be issued at such times and to such persons and for such
consideration as the directors may determine, provided that no shares may be
issued until it is fully paid as provided in the Act.
8.2. Commissions. The directors may authorize the Corporation to pay a
reasonable commission to any person in consideration of the person purchasing
or agreeing to purchase shares of the Corporation from the Corporation or from
any other person, or procuring or agreeing to procure purchasers for any such
shares.
8.3. Share Certificate. Every shareholder is entitled to receive a share
certificate in respect of the shares held by that shareholder that complies
with the Act or to a non-transferable written acknowledgement ("written
acknowledgement") of the shareholder's right to obtain a share certificate
from the Corporation in respect of the shares of the Corporation held by that
shareholder, but the Corporation is not bound to issue more than one share
certificate or written acknowledgement in respect of a share or shares held
jointly by several persons and delivery of a share certificate or written
acknowledgement to one of several joint holders is sufficient delivery to all.
Written acknowledgements shall be in such form or forms as the directors shall
from time to time by resolution determine. The Corporation may charge a fee
not exceeding the amount prescribed by the Act for a share certificate issued
in respect of a transfer. Subject to the provisions of the Act and to the
requirements of any stock exchange on which shares of the Corporation may be
listed, share certificates shall be in such form or forms as the directors
shall from time to time approve. Unless otherwise determined by the directors,
share certificates shall be signed by the Chair of the Board, the President,
or a Vice-President or a director and by the Secretary or an Assistant
Secretary and need not be under the corporate seal and certificates for shares
in respect of which a transfer agent or registrar has been appointed shall not
be valid unless countersigned on behalf of such transfer agent or registrar.
Share certificates shall be signed manually, or signatures shall be printed or
otherwise mechanically reproduced on the certificate, and shall include the
signature of, 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. If a share certificate contains a printed or mechanically
reproduced signature of a person, the Corporation may issue the share
certificate, even though the person has ceased to be a director or an officer
of the Corporation, and the share certificate is as valid as if the person
were a director or an officer at the date of its issue.
8.4. Transfer Agents and Registrars. For each class of shares issued by it,
the Corporation may appoint one or more agents to keep the securities register
and the register of transfers and one or more branch registers. Such an agent
may be designated as a transfer agent or registrar according to functions and
one agent may be designated both transfer agent and registrar. The securities
register, the register of transfers and the branch register or registers shall
be kept at the registered office of the Corporation or at such other place
designated by the directors as long as, if kept outside of Canada,
8.4.1. the records are available for inspection, by means of a computer
terminal or other technology, during regular office hours at the
registered office or any other place in Canada designated by the
directors; and
8.4.2. the Corporation provided the technical assistance to facilitate an
inspection referred in section 8.4.1.
89
8.5. Transfer of Shares. Subject to the Act, no transfer of a share shall be
registered except upon presentation of the certificate representing such share
with an endorsement which complies with the Act, together with such reasonable
assurance that the endorsement is genuine and effective as the directors may
prescribe, upon payment of all applicable taxes and fees and upon compliance
with the articles of the Corporation.
8.6. Non-Recognition of Trust. Subject to the Act, the Corporation may treat
the registered holder of any share as the person exclusively entitled to vote,
to receive notices, to receive any dividend or other payment in respect of the
share, and to exercise all the rights and powers of an owner of the share.
8.7. Replacement of Share Certificates. Where the owner of a share certificate
claims that the share certificate has been lost, apparently destroyed or
wrongfully taken, the Corporation shall issue or cause to be issued a new
certificate in place of the original certificate if the owner (i) so requests
before the Corporation has notice that the share certificate has been acquired
by a bona fide purchaser; (ii) files with the Corporation an indemnity bond
sufficient in the Corporation's opinion to protect the Corporation and any
transfer agent, registrar or other agent of the Corporation from any loss that
it or any of them may suffer by complying with the request to issue a new
share certificate; and (iii) satisfies any other reasonable requirements
imposed from time to time by the Corporation.
9. DIVIDENDS AND RIGHTS
9.1. Declaration of Dividends. Subject to the Act, the directors may from time
to time declare dividends payable to the shareholders according to their
respective rights and interest in the Corporation.
9.2. Cheques. A dividend payable in money 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 the address of such holder in the Corporation's securities register,
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 such joint holders and mailed to them at their address in the
Corporation's securities register. 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.
9.3. Non-Receipt of Cheques. 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 directors may from time to time prescribe, whether generally or
in any particular case.
9.4. Record Date for Dividends and Rights. The directors may fix in advance a
date, preceding by not more than fifty days the date for 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
directors.
9.5. Unclaimed Dividends. 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.
10. NOTICES
90
10.1. General. A notice or document required by the Act, the regulations
thereunder, the articles or the by-laws of the Corporation to be sent to a
shareholder or director of the Corporation may be sent by prepaid mail
addressed to, or may be delivered personally to, the shareholder or director
at the latest address of the shareholder or director as shown in the records
of the Corporation. A notice or document if mailed to a shareholder or
director of the Corporation shall be deemed to have been received at the time
it would be delivered in the ordinary course of mail unless there are
reasonable grounds for believing that the shareholder or director did not
receive the notice or document at that time or at all. If the Corporation
sends a notice or document to a shareholder in accordance with this section
and the notice or document is returned on two consecutive occasions because
the shareholder cannot be found, the Corporation is not required to send any
further notices or documents to the shareholder until the shareholder informs
the Corporation in writing of the shareholder's new address. An electronic
document is deemed to have been received when it enters the information system
designated by the addressee or, if the document is posted on or made available
through a generally accessible electronic source, when the addressee receives
notice in writing of the availability and location of that electronic
document, or, if such notice is sent electronically, when it enters the
information system designated by the addressee.
10.2. Electronic Delivery. Provided the addressee has consented in writing, or
electronically in accordance with the provisions of the Act and the
regulations thereunder, the Corporation may satisfy the requirement to send
any notice or document referred to in section 10.1 by providing an electronic
document in accordance with the Act and the regulations thereunder, unless the
notice or document is one that, as prescribed in the regulations under the
Act, may not be provided in electronic form.
10.3. Computation of Time. In computing the time when a notice or document
must be given or sent under any provision requiring a specified number of
days' notice of any meeting or other event, the day on which the notice or
document is given or sent shall be excluded and the day on which the meeting
or other event occurs shall be included.
10.4. Omission and Errors. The accidental omission to give any notice or send
any document to any shareholder, director or other person or the non-receipt
of any notice or document by any shareholder, director or other person or any
error in any notice or document not affecting the substance thereof shall not
invalidate any action taken at any meeting held pursuant to such notice or
otherwise founded on such notice or document.
10.5. Notice to Joint Shareholders. All notices or documents with respect to
any shares registered in more than one name may, if more than one address
appears on the securities register of the Corporation in respect of such joint
holding, be given to such joint shareholders at the first address so
appearing, and all notices so given or documents so sent shall be sufficient
notice to all the holders of such shares.
10.6. Proof of Service. A certificate of the Secretary or other duly
authorised officer of the Corporation, or of any agent of the Corporation, as
to facts in relation to the mailing or delivery or sending of any notice or
document to any shareholder or director of the Corporation or to any other
person or publication of any such notice or document, shall be conclusive
evidence thereof and shall be binding on every shareholder or director or
other person as the case may be.
10.7. Signature to Notice. The signature to any notice or document given by
the Corporation, if not in electronic form, may be printed or otherwise
mechanically reproduced thereon or partly printed or otherwise mechanically
reproduced thereon.
10.8. Waiver of Notice. Notice may be waived or the time for the sending of a
notice or document may be waived or abridged at any time with the consent in
writing of the person entitled thereto. Attendance of any director at a
meeting of the directors or of any shareholder at a meeting of shareholders is
a waiver of notice of such meeting, except where the director or shareholder
attends for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully called.
91
11. BUSINESS OF THE CORPORATION
11.1. Voting Shares and Securities in Other Corporations. All of the shares or
other securities carrying voting rights of any other body corporate or bodies
corporate held from time to time by the Corporation may be voted at any and
all meetings of holders of such securities of such other body corporate or
bodies corporate in such manner and by such person or persons as the directors
of the Corporation shall from time to time determine or failing such
determination the proper signing officers of the Corporation may also from
time to time execute and deliver for and on behalf of the Corporation
instruments of proxy and arrange for the issue of voting certificates and
other evidence of the right to vote in such names as they may determine.
11.2. Bank Accounts, Cheques, Drafts and Notes. The Corporation's bank
accounts shall be kept in such chartered bank or banks, trust company or trust
companies or other firm or corporation carrying on a banking business as the
directors may by resolution from time to time determine. Cheques on bank
accounts, drafts drawn or accepted by the Corporation, promissory notes given
by it, acceptances, bills of exchange, orders for the payment of money and
other instruments of a like nature may be made, signed, drawn, accepted or
endorsed, as the case may be, by such officer or officers, person or persons
as the directors may by resolution from time to time name for that purpose.
Cheques, promissory notes, bills of exchange, orders for the payment of money
and other negotiable paper may be endorsed for deposit to the credit of any
one of the Corporation's bank accounts by such officer or officers, person or
persons, as the directors may by resolution from time to time name for that
purpose, or they may be endorsed for such deposit by means of a stamp bearing
the Corporation's name.
11.3. Execution of Instruments. The Chair of the Board, the Vice-Chair, the
President, a Vice-President or any director, together with the Secretary, the
Treasurer, Assistant Secretary, Assistant Treasurer or any other director,
shall have authority to sign in the name and on behalf of the Corporation all
instruments in writing and any instruments in writing so signed shall be
binding upon the Corporation without any further authorisation or formality.
The board of directors shall have power from time to time by resolution to
appoint any other officer or officers or any person or persons on behalf of
the Corporation either to sign instruments in writing generally or to sign
specific instruments in writing. Any signing officer may affix the corporate
seal to any instrument requiring the same. The term "instruments in writing"
as used herein shall, without limiting the generality thereof, include
contracts, documents, powers of attorney, deeds, mortgages, hypothecs,
charges, conveyances, transfers and assignments of property (real or personal,
immovable or movable), agreements, tenders, releases, receipts and discharges
for the payment of money or other obligations, conveyances, transfers and
assignments of shares, stocks, bonds, debentures or other securities,
instruments of proxy and all paper writing.
11.4. Fiscal Year. Until changed by resolution of the directors, the fiscal
year of the Corporation shall terminate on the last day of February in each
year.
12. INTERPRETATION, REPEAL OF FORMER BY-LAWS & EFFECTIVE DATE
12.1. Interpretation. In this by-law, wherever the context requires or
permits, the singular shall include the plural and the plural the singular;
the word "person" shall include firms and corporations, and masculine gender
shall include the feminine and neuter genders. Wherever reference is made to
any determination or other action by the directors such shall mean
determination or other action by or pursuant to a resolution passed at a
meeting of the directors, or by or pursuant to a resolution consented to by
all the directors as evidenced by their signatures thereto. Wherever reference
is made to the "Canada Business Corporations Act" or the "Act", it shall mean
the Canada Business Corporations Act, R.S.C. l985, c. C-44, as amended, and
every other act or statute incorporated therewith or amending the same, or any
act or statute substituted therefor. Reference to the "Act", in the absence of
words to the contrary, includes all Regulations promulagated under the
provisions of the Act. Unless the context otherwise requires, all words used
in this by-law shall have the meanings given to such words in the Act. If
there is any conflict between the provisions of this by-law and the Act, the
provisions of the Act will prevail to the extent of such conflict.
92
12.2. Repeal of Former By-laws. All by-laws in force immediately prior to the
coming into force of this by-law are hereby repealed. The foregoing repeal
does not affect the previous operation of any by-law so repealed or affect the
validity of any action under or pursuant to such prior by-law. All officers
and persons acting under any by-law so repealed shall continue to act as if
appointed pursuant to the provisions of this by-law and all resolutions of
shareholders or of directors (including any committee of directors) with
continuing effect shall continue in full force and effect except to the extent
inconsistent with this by-law and until amended or repealed.
12.3. Effective Date. This by-law comes into force on the day it is adopted as
a by-law by the directors, subject to confirmation by an ordinary resolution
of shareholders at the next meeting of shareholders.
93