EXHIBIT 3.10
BY-LAW NO. 1
A by-law relating generally to the regulation of the
business and affairs of
SMC NOMINEECO INC.
CONTENTS
ONE INTERPRETATION
TWO DIRECTORS
THREE MEETINGS OF DIRECTORS
FOUR COMMITTEES
FIVE OFFICERS
SIX PROTECTION OF DIRECTORS,
OFFICERS AND OTHERS
SEVEN MEETINGS OF SHAREHOLDERS
EIGHT SECURITIES
NINE DIVIDENDS AND RIGHTS
TEN EXECUTION OF DOCUMENTS
AND VOTING OF SECURITIES
ELEVEN NOTICES
RESOLVED as a by-law of SMC NOMINEECO INC. (hereinafter called the
"Corporation") as follows:
SECTION ONE
INTERPRETATION
1.1 DEFINITIONS.
In this by-law and in all other by-laws of the Corporation, unless the
context otherwise requires:
(a) "Act" means the Business Corporations Act (Ontario) as amended or
re-enacted from time to time and includes the regulations made
pursuant thereto;
(b) "board" means the board of directors of the Corporation;
(c) "by-laws" means all by-laws of the Corporation;
(d) "director" means a director of the Corporation; and
(e) "non-business day" means Saturday, Sunday and any other day that is a
holiday as defined in the Interpretation Act (Ontario);
and
(f) "number of directors" means the number of directors provided for in
the articles or, where a minimum and maximum number of directors is
provided for in the articles, the number of directors determined by a
special resolution or resolution of the board where it is empowered by
special resolution to determine the number of directors.
Exhibit 3.10
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1.2 All terms used in the by-laws of the Corporation which are defined in
the Act shall have the meanings given to such terms under the Act.
1.3 In all by-laws of the Corporation, the singular shall include the
plural and the plural the singular and words importing gender include the
masculine, feminine and neuter genders.
1.4 Headings used in the by-laws are for convenience of reference only and
shall not affect the construction or interpretation thereof.
1.5 If any of the provisions contained in this by-law are inconsistent with
those contained in the articles or a unanimous shareholder agreement, the
provisions contained in the articles or unanimous shareholder agreement, as the
case may be, shall prevail.
SECTION TWO
DIRECTORS
2.1 QUORUM. The quorum for the transaction of business at any meeting of the
board shall consist of a majority of the number of directors; provided that
where the number of directors of the Corporation is two directors, both
directors must be present at any meeting of the board to constitute a quorum.
2.2 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 provided that if the number of directors
is fewer than three, at least one shall be a resident Canadian.
2.3 ELECTION AND TERM. The election of directors shall take place at the first
meeting of shareholders and at each annual meeting of shareholders. A director
not elected for an expressly stated term shall cease to hold office at the close
of the first annual meeting following his election or appointment, If an
election of directors is not held at the proper time, the incumbent directors
shall continue in office until their successors are elected.
2.4 REMOVAL OF DIRECTORS. Subject to the provisions of the Act, the
shareholders may by ordinary resolution passed at an annual or special meeting
remove any director from office and the vacancy created by such removal may be
filled at the same meeting failing which it may be filled by the directors.
2.5 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; provided that a director named in the articles is not permitted to resign
his office unless at the time the resignation is to become effective a successor
is elected or appointed.
2.6 VACANCIES. Subject to the provisions of the Act, if a quorum of the board
remains in office, the board may fill a vacancy in the board, except:
(a) a vacancy resulting from (i) an increase in the number of
directors otherwise than by a resolution of the directors, or in
the maximum number of directors, or from (ii) a failure to elect
the number of directors required to be elected at any meeting of
the shareholders; or
(b) where the directors are empowered to determine the number of
directors, if, after such appointment, the total number of
directors would be greater than one and one-third times the
number of directors required to have been elected at the last
annual meeting of shareholders.
In the absence of a quorum of the board, or if the board is not
permitted to fill such vacancy, the
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board shall forthwith call a special meeting of shareholders to fill the
vacancy. If the board fails to call such meeting or if there are no such
directors then in office, any shareholder may call the meeting.
2.7 REMUNERATION AND EXPENSES. The directors shall be paid such remuneration
for their services as the board may from time to time determine and shall also
be entitled to be reimbursed for travelling 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.
SECTION THREE
MEETINGS OF DIRECTORS
3.1 CANADIAN MAJORITY. 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 or other communications facilities the
business transacted at the meeting;
(b) a majority of resident Canadians would have been present had that
director been present at the meeting; and
(c) the Corporation has only one or two directors, that director or one of
the two directors, as the case may be, shall be a resident Canadian.
3.2 MEETINGS BY TELEPHONE. If all the directors present at or participating in
the meeting consent, any or all of the directors 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 to permit all persons participating in the
meeting to communicate with each other, simultaneously and instantaneously, and
any 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 held while a director holds
office.
3.3 PLACE OF MEETINGS. Meetings of the board may be held at any place within or
outside Ontario. In any financial year of the Corporation, a majority of the
meetings of the board need not be held within Canada.
3.4 CALLING OF MEETINGS. Meetings of the board may be convened at any time by
the president or any director upon notice given to all directors in accordance
with subsection 3.5.
3.5 NOTICE OF MEETING. Notice of the time and place of each meeting of the
board shall be given in the manner provided in subsection 11.1 to each director
(a) not less than 48 hours before the time when the meeting is to be held if the
notice is mailed, or (b) not less than 24 hours before the time the meeting is
to be held if the notice is given personally or is delivered or is sent by any
means of transmitted or recorded communication.
3.6 WAIVER OF NOTICE. A director may in any manner or at any time waive notice
of or otherwise consent to a meeting of the board. Attendance of a director at a
meeting of the board shall constitute a waiver of notice of that meeting except
where a director attends for the express purpose of objecting to the transaction
of any business on the grounds that the meeting has not been properly called.
3.7 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.
3.8 ADJOURNED MEETING. 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.
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3.9 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.
3.10 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,
with the exception of the Chairman of the Board, is a director and is present
at the meeting: chairman of the board, managing director, president, or a
vice-president (in order of seniority). If no such officer is present, the
directors present shall choose one of their number to be chairman.
3.11 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.
3.12 ONE DIRECTOR MEETING. Where the board consists of only one director,
that director may constitute a meeting.
SECTION FOUR
COMMITTEES
4.1 COMMITTEE OF DIRECTORS. The board may appoint from their number one or
more committees of the board, however designated, and delegate to such
committee any of the powers of the board except those 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.
4.2 AUDIT COMMITTEE. If the Corporation is an offering corporation the board
shall, and otherwise the board may, constitute an audit committee composed of
not fewer than three directors, a majority of whom are not officers or
employees of the Corporation or any of its affiliates, and who shall hold
office until the next annual meeting of shareholders. The audit committee
shall have the powers and duties provided in the Act.
4.3 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 the 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 within or outside Ontario.
4.4 PROCEDURE. Unless otherwise determined by the board, each committee
shall have the power to fix its quorum at not less than a majority of its
members, to elect its chairman and to regulate its procedure. To the extent
that the board or the committee does not establish rules to regulate the
procedure of the committee, the provisions of this by-law applicable to
meetings of the board shall apply mutatis mutandis.
SECTION FIVE
OFFICERS
5.1 APPOINTMENT. The board may designate the offices of the Corporation and
from time to time appoint a chairman of the board, managing director
(provided he is a resident Canadian), president, one or more vice-presidents
(to which title may be added words indicating seniority or function), a
secretary, a treasurer and such other officers as the board may determine,
including one or more assistants to any of the officers so appointed. The
board may specify the duties of and, in accordance with this by-law and
subject to the provisions of the Act, delegate to such officers powers to
manage the business and affairs of the Corporation. One person may hold more
than one office and, except for the chairman of the board and the managing
director, an officer need not be a director.
5.2 CHAIRMAN OF THE BOARD. If appointed, the board may assign to the
chairman of the
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board 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 subject to the Act,
such other powers and duties as the board may specify. The chairman of the board
shall, when present, preside at all meetings of the board and shareholders.
Subject to subsections 3.10 and 7.9, during the absence or disability of the
chairman of the board, his duties shall be performed and his powers exercised by
the first mentioned of the following officers then in office: the managing
director, the president, or a vice-president (in order of seniority).
5.3 MANAGING DIRECTOR. If appointed, the managing director 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, subject to the provisions of the Act, 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.
5.4 PRESIDENT. If appointed, the president shall have general supervision of
the business and affairs of the Corporation, subject to the direction and
authority of the board, the chairman of the board and the managing director;
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. In the absence of the appointment of a managing
director or the designation of the chairman of the board as such, the
president shall be the chief executive officer of the Corporation. Otherwise,
the president shall be the chief operating officer of the Corporation.
5.5 VICE-PRESIDENT. The vice-president, or if more than one, the
vice-presidents, in order of seniority as designated by the board, shall be
vested with all the powers and perform all the duties of the president in his
absence, inability or refusal to act except that he shall not preside at any
meeting of the directors unless he is appointed to do so by the board. A
vice-president shall have such powers and duties as the board or the chief
executive officer may specify.
5.6 SECRETARY. The secretary shall attend and be the secretary of all
meetings of the board, shareholders and committees of the board and shall
enter or cause to be entered in records kept for that purpose minutes of all
proceedings thereat; he shall give or cause to be given, as and when
instructed, all notices to shareholders, directors, officers and auditors; he
shall be the custodian of all books, papers, records, documents 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 the board or the chief executive officer may specify.
5.7 TREASURER. The treasurer shall keep or cause to be kept 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
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 the board
or the chief executive officer may specify.
5.8 POWERS AND DUTIES OF OTHER OFFICERS. The powers and duties of all other
officers shall be such as the terms of their engagement call for or as the
board or the chief executive officer may specify. Any of the powers and
duties of an officer to whom an assistant has been appointed may be exercised
and performed by such assistant, unless the board or the chief executive
officer otherwise directs.
5.9 VARIATION OF POWERS AND DUTIES. Subject to the provisions of the Act,
the board may from time to time vary, add to or limit the powers and duties
of any officer.
5.10 TERM OF OFFICE. The board, in its discretion, may remove any officer of
the Corporation, without prejudice to such officer's rights under any
employment contract. Otherwise, each officer appointed by the board shall
hold office until his successor is appointed, except that the term of office
of the chairman of the board or managing director shall expire when the
holder thereof ceases to be a director.
5.11 AGENTS AND ATTORNEYS. The board shall have power from time to time to
appoint agents or attorneys for the Corporation in or out of Ontario with
such powers of management or otherwise (including the
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power to sub-delegate) as may be thought fit.
5.12 FIDELITY BONDS. The board may require such officers, employees and
agents of the Corporation as the board deems advisable to furnish bonds for
the faithful discharge of their duties, in such form and with such surety as
the board may from time to time prescribe.
SECTION SIX
PROTECTION OF DIRECTORS AND OFFICERS
6.1 LIMITATION OF LIABILITY. No director or officer shall be liable for the
acts, receipts, neglects or defaults of any other director, officer,
employee, or agent, 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 whatever which shall happen in the execution of the duties of
his office or in relation thereto, unless the same are occasioned by his own
wilful neglect or default; provided that nothing herein shall relieve any
director or officer from the duty to act in accordance with the Act or from
liability for any breach thereof.
6.2 INDEMNITY. The Corporation shall indemnify and save harmless every
director or officer, every former director or officer, and every person who
acts or acted at the Corporation's request as a director or officer of a body
corporate of which the Corporation is or was a shareholder or creditor (or a
person who undertakes or has undertaken any liability on behalf of the
Corporation or any such body corporate) and his heirs and legal
representatives, from and against all costs, charges and expenses, including
an amount paid to settle an action or satisfy a judgment, reasonably incurred
by him in respect of any civil, criminal or administrative action or
proceeding to which he is made a party by reason of being or having been a
director or officer of the Corporation or such body corporate, if:
(a) he acted honestly and in good faith with a view to the best interests
of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
6.3 INSURANCE. Subject to the limitations contained in the Act, the
Corporation may purchase and maintain such insurance for the benefit of any
person referred to in subsection 6.2 hereof, as the board may from time to
time determine.
SECTION SEVEN
MEETINGS OF SHAREHOLDERS
7.1 ANNUAL MEETINGS. The annual meeting of shareholders shall be held at
such time in each year and, subject to subsection 7.3, 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 fixing or authorizing
the board to fix their remuneration, and for the transaction of such other
business as may properly be brought before the meeting.
7.2 SPECIAL MEETINGS. The board, the chairman of the board, the managing
director or the president or any registered shareholder shall have power to
call a special meeting of shareholders at any time.
7.3 PLACE OF MEETINGS. Meetings of shareholders shall be held at the place
where the registered office of the Corporation is situate or, if the board
shall so determine, at some other place within or outside of Ontario.
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7.4 MEETINGS BY TELEPHONE. If all the shareholders present at or
participating in the meeting consent, any or all of the shareholders may
participate in a meeting of the shareholders by means of such telephone,
electronic or other communications facilities as to permit all persons
participating in the meeting to communicate with each other, simultaneously
and instantaneously, and any shareholder 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 shareholders while such
individual(s) continue to be a shareholder.
7.5 NOTICE OF MEETINGS. Notice of the time and place of each meeting of
shareholders (and of each meeting of shareholders adjourned for an aggregate
of 30 days or more) shall be given in the manner provided in subsection 11 .1
not less than ten days (or such lesser number of days then required under the
Act or any other applicable legislation, regulation or administrative
policy), unless the Corporation is an offering corporation in which case not
less than 21 days, nor, in either case, more than 50 days before the date of
the meeting, to each director, to the auditor and to each shareholder who at
the close of business on the record date for notice, if any, 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 financial statements and
auditor's report, election of directors and re-appointment of the incumbent
auditor shall state the nature of such business in sufficient detail to
permit a 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. A
shareholder and any other person entitled to attend a meeting of shareholders
may in any manner and at any time waive notice of or otherwise consent to a
meeting of shareholders. Attendance of any such person at a meeting of
shareholders shall constitute a waiver of notice of the meeting except where
he attends a meeting for the express purpose of objecting to the transaction
of any business on the grounds that the meeting is not properly called.
7.6 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 entitled to vote at the meeting held by each
shareholder. If a record date for the meeting is fixed pursuant to subsection
7.7, the shareholders listed shall be those registered at the close of
business on the record date and such list shall be prepared not later than
ten days after such record date. If no record date is fixed, the list shall
be prepared 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,
the day on which the meeting is held and shall list all shareholders
registered at such time. 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 securities register is kept and at the
place where the meeting is held.
7.7 RECORD DATE FOR NOTICE. The board may fix in advance a record date,
preceding the date of any meeting of shareholders by not more than 50 days
and not less than 21 days, 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. If no record date is so fixed, the record
date for the determination of the shareholders entitled to notice of the
meeting shall be the close of business on the day immediately preceding the
day on which the notice is given.
7.8 MEETINGS WITHOUT NOTICE. A meeting of shareholders may be held without
notice at any time and place permitted by the Act in accordance with the
requirements of the Act and any other applicable legislation, regulation or
administrative policy. At such a meeting, any business may be transacted
which the Corporation at a meeting of shareholders may transact.
7.9 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.
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7.10 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to be present
at a meeting of the 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,
the articles or the 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.
7.11 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 proxy for an absent
shareholder so entitled. Notwithstanding the foregoing, if the Corporation
has only one shareholder, or only one shareholder of any class or series of
shares, the shareholder present in person or by proxy constitutes a meeting
and a quorum for such meeting.
7.12 RIGHT TO VOTE. Subject to the provisions of the Act as to authorized
representatives of any other body corporate, at any meeting of shareholders
in respect of which the Corporation has prepared the list referred to in
subsection 7.6, every person who is named in such list shall be entitled to
vote the shares shown thereon opposite his name except to the extent that
such person has transferred any of his shares after the date on which the
list is prepared or, where a record date has been fixed, after the record
date and the transferee, upon producing properly endorsed certificates
evidencing such shares or otherwise establishing that he owns such shares,
demands at any time prior to the meeting that his name be included to vote
the transferred shares at the meeting. In the absence of a list prepared as
aforesaid in respect of a meeting of shareholders, every person shall be
entitled to vote at the meeting who at the time is entered in the securities
register as the holder of one or more shares carrying the right to vote at
such meeting.
7.13 PROXIES. Every shareholder entitled to vote at a meeting of
shareholders may appoint a proxyholder, or one or more alternate
proxyholders, who need not be shareholders, 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.
7.14 TIME FOR DEPOSIT OF PROXIES. The board may specify in a notice calling
a meeting of shareholders a time, preceding the time of such meeting by not
more than 48 hours exclusive of non-business days, before which time proxies
to be used at such meeting must be deposited. 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 is specified in such notice, unless 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.
7.15 JOINT SHAREHOLDERS. If two or more persons hold shares jointly, any one
of them present in person or represented by proxy 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 by proxy
and vote, they shall vote as one the shares jointly held by them.
7.16 VOTES TO GOVERN. At any meeting of shareholders every question shall,
unless otherwise required by law, be determined by the majority of the votes
cast on the question. In the case of an equality of votes either upon a show
of hands or upon a ballot, the chairman of the meeting shall not be entitled
to a second or casting vote.
7.17 SHOW OF HANDS. Subject to the provisions of 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. 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
chairman of the meeting as to the result of the vote upon the question 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 such question, and the result of the vote so taken shall be the
decision of the shareholders upon such question.
7.18 BALLOTS. On any question proposed for consideration at a meeting of
shareholders, and whether or not a show of hands has been taken thereon, any
shareholder or proxyholder entitled to vote at the
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meeting may demand a ballot. A ballot so demanded shall be taken in such manner
as the chairman shall direct. A demand for a ballot may be withdrawn at any time
prior to the taking of the ballot. The result of the ballot so taken shall be
the decision of the shareholders upon the question.
7.19 RESOLUTION IN WRITING. A resolution in writing signed by all of the
shareholders entitled to vote on that resolution at a meeting of shareholders
(or such lesser number of shareholders as are then required for a written
resolution to be effective pursuant to the Act and any other applicable
legislation, regulation or administrative policy) is as valid as if it had
been passed at a meeting of the shareholders unless a written statement with
respect to the subject matter of the resolution is submitted by a director or
the auditor in accordance with the Act.
SECTION EIGHT
SECURITIES
8.1 REGISTRATION OF TRANSFER. Subject to the provisions of the Act, no
transfer of shares shall be registered in a securities register except upon
presentation of the certificate representing such shares with a transfer
endorsed thereon or delivered therewith duly executed by the registered
holder or by his attorney or successor duly appointed, together with such
reasonable assurance or evidence of signature, identification and authority
to transfer as the board may from time to time prescribe, upon payment of all
applicable taxes and any fees prescribed by the board, upon compliance with
such restrictions on transfer as are authorized by the articles and upon
satisfaction of any lien referred to in subsection 8.4.
8.2 TRANSFER AGENTS AND REGISTRARS. The board may from time to time appoint
a registrar to maintain the securities register and a transfer agent to
maintain the register of transfers and may also appoint one or more branch
registrars to maintain branch securities registers and one or more branch
transfer agents to maintain branch registers of transfers, but one person may
be appointed both registrar and transfer agent. The board may at any time
terminate any such appointment.
8.3 LIEN ON SHARES. The Corporation has a lien on any share or shares
registered in the name of a shareholder or his legal representative for any
debt of that shareholder to the Corporation.
8.4 ENFORCEMENT OF LIEN. The lien referred to in subsection 8.3 may be
enforced by any means permitted by law and:
(a) where the share or shares are redeemable pursuant to the articles of
the Corporation by redeeming such share or shares and applying the
redemption price to the debt;
(b) subject to the Act, by purchasing the share or shares for cancellation
for a price equal to the book value of such share or shares and
applying the proceeds to the debt;
(c) by selling the share or shares to any third party whether or not such
party is at arm's length to the Corporation, and including, without
limitation, any officer or director of the Corporation, for the best
price which the directors consider to be obtainable for such share or
shares; or
(d) by refusing to register a transfer of such share or shares until the
debt is paid.
8.5 SECURITY CERTIFICATES. Every holder of securities of the Corporation
shall be entitled, at his option, to a security certificate, or to a
non-transferable written acknowledgement of his right to obtain a security
certificate, stating the number and designation, class or series of
securities held by him as shown on the securities register. Security
certificates and acknowledgements of a securities holder's right to a
security certificate, respectively, shall be in such form as the board shall
from time to time approve. Any security certificate shall be signed in
accordance with subsection 10.1. A security certificate shall be signed
manually by at least one director or officer of the Corporation or by or on
behalf of the transfer agent and/or registrar. Any additional signatures
required may be printed or otherwise mechanically reproduced. A security
certificate executed as aforesaid shall be valid notwithstanding that one of
the directors or officers whose facsimile signature appears thereon no longer
holds
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office at the date of issue of the certificate.
8.6 REPLACEMENT OF SECURITY CERTIFICATES. The board, any officer or any
agent designated by the board may in its or his discretion direct the issue
of a new security certificate in lieu of and upon cancellation of a security
certificate that has been mutilated. In the case of a security certificate
claimed to have been lost, destroyed or wrongfully taken, the board, any
officer or any agent designated by the board shall issue a substitute
security certificate if so requested before the Corporation has notice that
the security has been acquired by a bona fide purchaser. The issuance of the
substitute security certificate shall be on such reasonable terms as to
indemnity, reimbursement of expenses and evidence of loss and of title as the
board or the officer or the agent designated by the board responsible for
such issuance 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 security, 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 security.
8.8 DECEASED SECURITY HOLDERS. Subject to the provisions of paragraph 8.9
below, in the event of the death of a holder of any security, the Corporation
shall not be required to make any entry in the securities register in respect
thereof or to make payment of any dividends thereon except upon production of
all such documents as may be required by law and upon compliance with the
reasonable requirements of the Corporation, which reasonable requirements
shall in the discretion of the board not necessarily include the production
of letters probate or letters of administration.
8.9 DECEASED JOINTLY-HELD SECURITY HOLDERS. Where a share is registered in
the name of two or more persons as joint holders with rights of survivorship,
upon satisfactory proof of the death of one joint holder and without the
requirement of letters probate or letters of administration, the Corporation
shall treat the surviving joint holder(s) as the sole owner(s) of the share
effective as of the date of death of such joint holder and the Corporation
shall make the appropriate entry in the securities register to reflect such
ownership.
SECTION NINE
DIVIDENDS AND RIGHTS
9.1 DIVIDENDS. Subject to the provisions of the Act, the board may from time
to time by resolution declare and the Corporation may pay dividends to the
shareholders according to their respective rights and interests in the
Corporation.
Dividends may be paid in money or property, subject to the restrictions on the
declaration and payment thereof under the Act, or by issuing fully paid shares
of the Corporation or options or rights to acquire fully paid shares of the
Corporation.
9.2 DIVIDEND CHEQUES. 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 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.
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 board may from time to time prescribe, whether generally or in
any particular case.
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9.4 RECORD DATE FOR DIVIDENDS AND RIGHTS. The board may fix in advance a
date as a record date for the determination of the persons entitled to
receive payment of dividends and to subscribe for securities of the
Corporation, provided that such record date shall not precede by more than 50
days the particular action to be taken. 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, unless notice of the record
date is waived 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. If the shares of the Corporation
are listed for trading on one or more stock exchanges in Canada, notice of
such record date shall also be sent to such stock exchanges. Where no record
date is fixed in advance as aforesaid, 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.
9.5 UNCLAIMED DIVIDENDS. Any dividend unclaimed after a period of six years
from the date on which it has been declared to be payable shall be forfeited
and shall revert to the Corporation.
SECTION TEN
GENERAL
10.1 EXECUTION OF INSTRUMENTS. Contracts, documents and other instruments in
writing may be signed on behalf of the Corporation by such person or persons
as the board may from time to time by resolution designate. In the absence of
an express designation as to the persons authorized to sign either contracts,
documents or instruments in writing generally or to sign specific contracts,
documents or instruments in writing, any one of the directors or officers of
the Corporation may sign contracts, documents or instruments in writing on
behalf of the Corporation. The corporate seal, if any, of the Corporation may
be affixed to any contract, obligation or instrument in writing requiring the
corporate seal of the Corporation by any person authorized to sign the same
on behalf of the Corporation.
The phrase "contracts, documents and other instruments in writing" as used
in this provision shall include deeds, mortgages, hypothecs, charges,
conveyances, transfers and assignments of property, real or personal, immovable
or movable, agreements, releases, receipts and discharges for the payment of
money or other obligations, conveyances, transfers and assignments of
securities, all paper writings, all cheques, drafts or orders for the payment of
money and all notes, acceptances and bills of exchange.
10.2 VOTING RIGHTS IN OTHER CORPORATIONS. All securities carrying voting
rights of any other corporation held from time to time by the Corporation may
be voted at any and all meetings of shareholders, bond holders, debenture
holders or holders of other securities (as the case may be) of such other
corporation and in such manner as the board may from time to time determine.
Any person or persons authorized to sign on behalf of the Corporation may
also from time to time execute and deliver for and on behalf of the
Corporation proxies and/or arrange for the issuance of voting certificates
and/or other evidence of the right to vote in such names as they may
determine.
SECTION ELEVEN
NOTICES
11.1 METHOD OF SENDING NOTICE. Any notice (which term includes any
communication or document) to be sent pursuant to the Act, the articles, the
by-laws or otherwise to a shareholder, director, officer, or to the auditor
shall be sufficiently sent if delivered personally to the person to whom it
is to be sent or if delivered to his recorded address or if mailed to him at
his recorded address by prepaid mail or if sent to him at his recorded
address by any means of prepaid transmitted or recorded communication. A
notice so delivered shall be deemed to have been sent when it is delivered
personally or to the recorded address as aforesaid; a notice so mailed shall
be deemed to have been sent when deposited in a post office or public letter
box and shall be deemed to have been received on the fifth day after so
depositing; and a notice so sent by any means of transmitted or recorded
communication shall be deemed to have been sent when dispatched by the
Corporation if it uses its own facilities and otherwise when delivered to the
appropriate communication company or agency or its representative for
dispatch. The secretary may change or cause to be changed the recorded
address of any shareholder, director, officer
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or auditor in accordance with any information believed by him to be reliable.
The recorded address of a director shall be his latest address as shown in the
records of the Corporation or in the most recent notice filed under the
Corporations Information Act, whichever is the more current.
11.2 NOTICE TO JOINT SHAREHOLDERS. If two or more persons are registered as
joint holders of any share, any notice shall be addressed to all of such
joint holders but notice sent 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 sent
under any provision requiring a specified number of days notice of any
meeting or other event, both the date of sending the notice and the date of
the meeting or other event shall be excluded.
11.4 UNDELIVERED NOTICES. If any notice sent to a shareholder pursuant to
subsection 11.1 is returned on three consecutive occasions because the
shareholder 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 send any notice to any
shareholder, director, officer or to the auditor 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 OPERATION OF LAW. Every person who, by operation of
law, transfer or by any other means whatsoever, shall become entitled to any
share, shall be bound by every notice in respect of such share which shall
have been duly sent 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).
11.7 DECEASED SHAREHOLDERS. Any notice duly sent to any shareholder shall be
deemed to have been duly served in respect of the shares held by the
shareholder (whether held solely or with other persons), notwithstanding that
such shareholder is then deceased and whether or not the Corporation has
notice of his death, until some other person is entered in his stead in the
securities register of the Corporation as the holder or as one of the holders
thereof and such service shall for all purposes be deemed a sufficient
service of notice to his heirs, executors or administrators and all persons,
if any, interested with him in such shares.
11.8 WAIVER OF NOTICE. Any shareholder (or his duly appointed proxyholder),
director, officer or auditor may at any time waive any notice, or waive or
abridge the time for any notice, required to be given to him under any
provisions of the Act, the regulations thereunder, the articles, the by-laws
or otherwise and such waiver or abridgement shall cure any default in the
giving or in the time of such notice, as the case may be. Any such waiver or
abridgement shall be in writing except a waiver of notice of a meeting of
shareholders or of the board which may be given in any manner.
11.9 EXECUTION OF NOTICES. The signature of any director or officer of the
Corporation to any notice may be written, stamped, typewritten or printed or
partly written, stamped, typewritten or printed.
11.10 PROOF OF SERVICE. A certificate of any officer or director of
the Corporation in office at the time of making of the certificate or of an
agent of the Corporation as to facts in relation to the sending of any
notice to any shareholder, director, officer or auditor or publication of
any notice shall be conclusive evidence thereof and shall be binding on every
shareholder, director, officer or auditor of the Corporation, as the case may
be.
The foregoing resolution making By-law No. 1 of the Corporation, being a
by-law relating generally to the regulation of the business and affairs of the
Corporation, is hereby signed by all of the directors of the Corporation.
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DATED the 29th day of December, 1998.
/s/ Paul V. Godfrey /s/ Trudy A. Eagan
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Paul V. Godfrey Trudy A. Eagan
/s/ Bruce L. Jackson
----------------------
Bruce L. Jackson
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The foregoing By-law No. 1 of the Corporation, made by all of the
directors, is hereby confirmed by the sole shareholder of the Corporation
entitled to vote at a meeting of shareholders.
DATED the 29th day of December, 1998.
SUN MEDIA (TORONTO)
CORPORATION
Per: /s/ Bruce L. Jackson
----------------------
Bruce L. Jackson