Exhibit 3.2
COTT CORPORATION
CORPORATION COTT
AMENDED AND RESTATED
BY-LAW NO. 2002-1
being a by-law relating generally to the transaction of the business and affairs
of the Corporation, which by-law amended and restates By-Law No. 1986-1 and all
prior amendments thereto.
ARTICLE ONE
INTERPRETATION
SECTION 1.01 DEFINITIONS. In the by-laws of the Corporation, unless the context
otherwise requires:
"Act" means the Canada Business Corporations Act and all regulations made
pursuant to it, and any statute and regulations that may be substituted
therefor, as from time to time amended;
"appoint" includes "elect" and vice versa;
"articles" means the articles of amalgamation of the Corporation attached to the
certificate of amalgamation dated January 2, 2000, as from time to time amended
or restated;
"board" means the board of directors of the Corporation;
"by-laws" means this by-law and all other by-laws of the Corporation from time
to time in force and effect;
"Corporation" means Cott Corporation, a corporation amalgamated under the laws
of Canada;
"electronic document" means any form of representation of information or of
concepts fixed in any medium in or by electronic, optical or other similar means
and that can be read or perceived by a person or by any means;
"information system" means a system used to generate, send, receive, store, or
otherwise process an electronic document;
"meeting of shareowners" means an annual meeting of shareowners or a special
meeting of shareowners;
"non-business day" means Saturday, Sunday and any other day that is a holiday as
defined in the Interpretation Act (Canada);
"recorded address" means in the case of a shareowner his latest address as
recorded in the securities register; and in the case of joint shareowners the
address appearing in the securities register in respect of such joint holding or
the first address so appearing if there are more than
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one; and in the case of a director, officer, auditor or member of a committee of
the board, his latest address as shown in the records of the Corporation;
"signing officer" means, in relation to any instrument, any person authorized to
sign the same on behalf of the Corporation by section 2.02, or by a resolution
passed pursuant thereto;
save as aforesaid, words and expressions defined in the Act have the same
meanings when used herein or in any other by-law; and
words importing the singular number include the plural and vice versa; words
importing gender include the masculine, feminine and neuter genders; and words
importing persons include individuals, bodies corporate, partnerships, trusts
and unincorporated organizations; and a reference to a section means that
section in the by-laws in which such section appears.
In the case of any conflict between the articles and the provisions of this or
any other by-law the provisions of the articles shall prevail.
ARTICLE TWO
BUSINESS OF THE CORPORATION
SECTION 2.01 REGISTERED OFFICE. Until changed in accordance with the Act, the
address of the registered office of the Corporation will be within the place
specified in the articles or within articles of amendment changing the place in
which its registered office is situated.
SECTION 2.02 EXECUTION OF INSTRUMENTS. Deeds, documents, bonds, debentures,
transfers, assignments, contracts, obligations, certificates and other
instruments may be signed on behalf of the Corporation by two persons, one of
whom holds the office of chairman of the board, chairman of the executive
committee, president, vice-president or director and the other of whom holds one
of the said offices or the office of secretary, treasurer, assistant-secretary
or assistant-treasurer or director or any other office created by by-law or by
resolution of the board. Where one person holds more than one office, he may
sign any of the above said deeds, documents, bonds, debentures, transfers,
assignments, contracts, obligations, certificates and other instruments on
behalf of the Corporation in one or more capacities. In addition, the board may
from time to time direct the manner in which and the person or persons by whom
any particular instrument or class of instruments may or shall be signed. Any
signing officer may affix the corporate seal to any instrument requiring the
same.
SECTION 2.03 BANKING AND FINANCIAL ARRANGEMENTS. The banking and financial
business of the Corporation including, without limitation, the borrowing of
money and the giving of security therefor, shall be transacted with such banks,
trust companies or other bodies corporate or organizations as may from time to
time be designated by or under the authority of the board. Such banking and
financial business or any part thereof shall be transacted under such
agreements, instructions and delegations of powers as the board may from time to
time prescribe or authorize.
SECTION 2.04 VOTING RIGHTS IN OTHER BODIES CORPORATE. The signing officers of
the Corporation may execute and deliver proxies and arrange for the issuance of
voting
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certificates or other evidence of the right to exercise the voting rights
attaching to any securities held by the Corporation. Such instruments,
certificates or other evidence shall be in favour of such person or persons as
may be determined by the officers executing such proxies or arranging for the
issuance of voting certificates or such other evidence of the right to exercise
such voting rights. In addition, the board may from time to time direct the
manner in which and the person or persons by whom any particular voting rights
or class of voting rights may or shall be exercised.
SECTION 2.05 WITHHOLDING INFORMATION FROM SHAREOWNERS. Subject to the provisions
of the Act, no shareowner shall be entitled to discovery of any information
respecting any details or conduct of the Corporation's business which, in the
opinion of the board, it would be inexpedient in the interests of the
shareowners or the Corporation to communicate to the public. The board may from
time to time determine whether and to what extent and at what time and place and
under what conditions or regulations the accounts, records and documents of the
Corporation or any of them shall be open to the inspection of shareowners and no
shareowner shall have any right of inspecting any account, record or document of
the Corporation except as conferred by the Act or authorized by the board or by
resolution passed at a general meeting of shareowners.
SECTION 2.06 DECLARATIONS. Any officer of the Corporation or any other person
appointed for the purpose by resolution of the board is authorized and empowered
to appear and make answer for, on behalf and in the name of the Corporation, to
writs, orders and interrogatories upon articulated facts issued out of any court
and to declare for, on behalf and in the name of the Corporation, any answer to
writs of attachment by way of garnishment or otherwise and to make all
affidavits and sworn declarations in connection therewith or in connection with
any and all judicial proceedings. Such officers and persons may make demands of
abandonment or petitions for winding-up or bankruptcy orders upon any debtor of
the Corporation, may attend and vote at all meetings of creditors of the
Corporation's debtors and grant proxies in connection therewith, and may
generally do all such things in respect thereof as they deem to be in the best
interests of the Corporation.
ARTICLE THREE
BORROWING AND SECURITIES
SECTION 3.01 BORROWING POWER. Without limiting the borrowing powers of the
Corporation as set forth in the Act or in the articles, the board may from time
to time:
(a) borrow money upon the credit of the Corporation and limit or increase
the amount to be borrowed;
(b) issue, reissue, sell or pledge bonds, debentures, notes or other
evidences of indebtedness, guarantees or securities of the
Corporation, whether secured or unsecured;
(c) to the extent permitted by the Act, give guarantees on behalf of the
Corporation to secure performance of an obligation of any person or
give, directly or indirectly, financial assistance to any person on
behalf of the Corporation by means of a loan, guarantee or otherwise;
and
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(d) mortgage, hypothecate, pledge or otherwise create a security interest
in all or any of the real or personal, moveable or immoveable property
of the Corporation, currently owned or subsequently acquired,
including book debts, rights, powers, franchises and undertakings, to
secure any present or future debt obligations or any money borrowed or
other debt or liability of the Corporation, including any bonds,
debentures, notes, debenture stock, other evidences of indebtedness,
guarantees or securities of the Corporation which it is by law
entitled to issue. Nothing in this section limits or restricts the
borrowing of money by the Corporation on bills of exchange or
promissory notes made, drawn, accepted or endorsed by or on behalf of
the Corporation.
SECTION 3.02 DELEGATION. The board may from time to time delegate to such one or
more of the directors or officers of the Corporation as may be designated by the
board all or any of the powers conferred on the board by section 3.01 or by the
Act to such extent and in such manner as the board shall determine at the time
of each such delegation.
ARTICLE FOUR
DIRECTORS
SECTION 4.01 NUMBER OF DIRECTORS AND QUORUM. Until changed in accordance with
the Act, the board shall consist of such fixed number, or minimum and maximum
number, of directors as may be set out in the articles.
The directors may, from time to time, fix by resolution the quorum for meetings
of directors, but until otherwise fixed, a majority of the directors in office
from time to time shall constitute a quorum. Subject to the provisions of
section 4.06 hereof, any meeting of directors at which a quorum is present shall
be competent to exercise all or any of the authorities, powers and discretions
by or under the by-laws of the Corporation for the time being vested in or
exercisable by the directors generally.
Subject to the Act and to the articles of the Corporation, the directors may
appoint one or more directors, who shall hold office for a term expiring not
later than the close of the next annual meeting of shareowners, but the total
number of directors so appointed may not exceed one-third of the number of
directors elected at the previous annual meeting of shareowners.
SECTION 4.02 QUALIFICATION. No person shall be qualified for election as a
director if he is less than eighteen (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
shareowner. At least 25% of the directors, or such lesser number as may be
permitted by the Act, must be resident Canadians. However, if the Corporation
has fewer than four directors, at least one director, or such lesser number as
may be permitted by the Act, must be a resident Canadian.
SECTION 4.03 ELECTION AND TERM. The election of directors shall take place at
each annual meeting of shareowners at which time all the directors then in
office shall cease to hold office, but, if qualified, shall be eligible for
re-election. The number of directors to be elected at any such meeting shall be
the number of directors then in office unless the directors or the shareowners
otherwise determine. The election shall be by resolution. If an election of
directors
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is not held at any such meeting of shareowners, the incumbent directors shall
continue in office until their successors are elected.
SECTION 4.04 VACATION OF OFFICE. A director ceases to hold office when he dies;
when he is removed from office by the shareowners in accordance with the
provisions of the Act; when he ceases to be qualified for election as a
director; or when 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.
SECTION 4.05 VACANCIES. Subject to the Act, a quorum of the board may fill a
vacancy in the board, except a vacancy resulting from an increase in the number
or minimum number of directors or from a failure of the shareowners to elect the
number or minimum number of directors. In the absence of a quorum of the board,
or if the vacancy has arisen from a failure of the shareowners to elect the
number or minimum number of directors, the board may call a special meeting of
shareowners to fill the vacancy. If the board fails to call such meeting or if
there are no such directors then in office, any shareowner may call the meeting.
Where there is a vacancy in the board, the remaining directors may exercise all
the authorities, powers and discretions of the board so long as a quorum remains
in office.
SECTION 4.06 CANADIAN RESIDENCY REQUIREMENTS. The board shall not transact
business at a meeting, other than filling a vacancy in the board, unless at
least 25% of the directors present, or such lesser number as may be permitted by
the Act, are resident Canadians, or, if the Corporation has fewer than 4
directors, at least one of the directors present, or such lesser number as may
be permitted by the Act, is a resident Canadian. The board may, however,
transact business at a meeting of directors where the required number of
resident Canadian directors is not present if
(a) a resident Canadian director who is unable to be present approves in
writing or by telephonic, electronic or other communication
facilities, the business transacted at the meeting; and
(b) the required number of resident Canadian directors would have been
present had that director been present at the meeting.
SECTION 4.07 MEETINGS BY TELEPHONE, ELECTRONIC OR OTHER COMMUNICATION FACILITY.
A director may, to the extent and in the manner permitted by law, participate in
a meeting of directors or of a committee of directors by means of a telephonic,
electronic or other communication facility that permits all participants to
communicate adequately with each other during the meeting, but only if all the
directors of the Corporation have consented to that form of participation. A
director participating in such a meeting by such means is deemed for the
purposes of the Act to be present at that 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.
SECTION 4.08 PLACE OF MEETINGS. Meetings of the board may be held at any place
in or outside Canada.
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SECTION 4.09 CALLING OF MEETINGS. Meetings of the board shall be held from time
to time and at such place as the board, the chairman of the board, the chairman
of the executive committee, the president or any two directors may determine.
SECTION 4.10 NOTICE OF MEETING. Notice of the time and place of each meeting of
the board shall be given in the manner provided in section 12.01 to each
director not less than twenty-four (24) hours before the time when the meeting
is to be held. A notice of a meeting of directors need not specify the purpose
of or the business to be transacted at the meeting except where the Act requires
such purpose or business to be specified. A director may waive notice of or
otherwise consent to a meeting of the board. Such a waiver of notice may be sent
in any manner, including as an electronic document and at any time before,
during or after a meeting of the board. No action taken at any meeting of the
board shall be invalidated by the accidental failure to give notice or
sufficient notice thereof to any director.
SECTION 4.11 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 shareowners at which such board is elected.
SECTION 4.12 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.
SECTION 4.13 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.
SECTION 4.14 CHAIRMAN. The chairman of any meeting of the board shall be the
first mentioned of such of the following officers as have been appointed and who
is a director and is present at the meeting: chairman of the board, chairman of
the executive committee, president or a vice-president, who is a director. If no
such officer is present, the directors present shall choose one of their number
to be chairman.
SECTION 4.15 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 be entitled to a second or
casting vote.
SECTION 4.16 REMUNERATION AND EXPENSES. The directors shall be paid such
remuneration for their services as the board may from time to time determine.
The directors shall also be entitled to be reimbursed for 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.
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ARTICLE FIVE
COMMITTEES
SECTION 5.01 COMMITTEES OF DIRECTORS. The board may appoint a committee or
committees of directors, however designated, and delegate to such committee or
committees any of the powers of the board except those which, under the Act, a
committee of directors has no authority to exercise.
SECTION 5.02 EXECUTIVE COMMITTEE. The board may designate one of the committees
appointed by it as the executive committee. It shall comprise at least three (3)
members who shall remain in office at the pleasure of the board and while still
directors. It shall, subject to section 5.01, be vested with all the powers and
authority of the board between meetings thereof. All acts and proceedings of the
executive committee shall be reported to the board at the next meeting thereof,
but any right granted or obligation incurred pursuant to the authority of the
executive committee shall be treated as valid and binding upon the Corporation.
SECTION 5.03 AUDIT COMMITTEE. The board shall elect from among its number an
audit committee to be composed of at least three (3) directors of whom the
majority shall not be officers or employees of the Corporation or its
affiliates. Members of the audit committee shall remain in office at the
pleasure of the board and while still directors.
SECTION 5.04 TRANSACTION OF BUSINESS. Subject to the provisions of section 4.07,
the powers of a committee of directors 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 a committee of directors may be held at any place
in or outside Canada.
SECTION 5.05 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.
ARTICLE SIX
OFFICERS
SECTION 6.01 APPOINTMENT. The board may from time to time appoint a chairman of
the board, a chairman of the executive committee, a president, one or more
vice-presidents (to which title may be added words indicating seniority or
function), a secretary 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. Subject to section 6.02, an officer may but need
not be a director and one person may hold more than one office.
SECTION 6.02 CHAIRMAN OF THE BOARD, CHAIRMAN OF THE EXECUTIVE COMMITTEE AND
PRESIDENT. The chairman of the board, chairman of the executive committee and
the president shall each be chosen from among the directors and, if appointed,
shall have such powers and duties as the board may specify.
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SECTION 6.03 VICE-PRESIDENT OR VICE-PRESIDENTS. The vice-president or
vice-presidents shall have such powers and duties as the board may specify.
SECTION 6.04 SECRETARY. Except as may be otherwise determined from time to time
by the board, the secretary shall attend and be the secretary of all meetings of
the board, shareowners 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
shareowners, directors, officers, auditors and members of committees of the
board; he shall be the custodian of the stamp or mechanical device generally
used for affixing the corporate seal of the Corporation and of all books,
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.
SECTION 6.05 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.
SECTION 6.06 VARIATION OF POWERS AND DUTIES. The board may from time to time and
subject to the provisions of the Act, vary, add to or limit the powers and
duties of any officer.
SECTION 6.07 TERM OF OFFICE. The board, in its discretion, may remove and
discharge any or all the officers of the Corporation either with or without
cause at any meeting called for that purpose and may elect or appoint others in
their place or places. Any officer or employee of the Corporation, not being a
member of the board, may also be removed and discharged, either with or without
cause, by the chairman of the board, chairman of the executive committee or
president. If, however, there be a contract with an officer or employee
derogating from the provisions of this section such removal or discharge shall
be subject to the provisions of such contract. Otherwise each officer appointed
by the board shall hold office until his successor is appointed.
SECTION 6.08 TERMS OF EMPLOYMENT AND REMUNERATION. The terms of employment and
the remuneration of officers appointed by the board shall be settled by it from
time to time.
SECTION 6.09 AGENTS AND ATTORNEYS. The board, the chairman of the board, the
chairman of the executive committee or the president or any person delegated by
any of them shall have power from time to time to appoint agents or attorneys
for the Corporation in or outside Canada with such powers of management or
otherwise (including the power to sub-delegate) as may be thought fit.
SECTION 6.10 FIDELITY BONDS. The board, the chairman of the board, the chairman
of the executive committee or the president or any person delegated by any of
them may require such officers, employees and agents of the Corporation as the
board deems advisable to furnish
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bonds for the faithful discharge of their powers and duties, in such form and
with such surety as the board may from time to time determine.
ARTICLE SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 7.01 LIMITATION OF LIABILITY. No director or officer shall be liable for
the acts, receipts, neglects or defaults of any other person including any
director or officer or employee or agent, or for joining in any receipt or acts
for conformity, or for any loss, damage or expense happening to the Corporation
through the insufficiency or deficiency of title to any property acquired by 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,
delictual, quasi-delictual or tortious acts of any person with whom any of the
moneys, securities or other property of the Corporation shall be deposited or
for any loss occasioned by an error of judgment or oversight on his part, or for
any other loss, damage or misfortune whatever which may arise out of 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 mandatory provisions of the Act or from liability for any breach
thereof.
SECTION 7.02 LIMITATION OF LIABILITY. Without in any manner derogating from or
limiting the mandatory provisions of the Act but subject to the conditions in
this by-law, the Corporation shall indemnify each director and officer of the
Corporation, each former director and officer of the Corporation and each
individual who acts or acted at the Corporation's request as a director or
officer, or each individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
Corporation or other entity.
SECTION 7.03 ADVANCE OF COSTS. The Corporation may advance moneys to a director,
officer or other individual for the costs, charges and expenses of a proceeding
referred to in section 7.02. The individual shall repay the moneys if the
individual does not fulfil the conditions of section 7.04.
SECTION 7.04 LIMITATION IN INDEMNITY. The Corporation's indemnity applies,
however, only to the extent that the individual seeking indemnity:
(a) acted honestly and in good faith with a view to the best interests of
the Corporation, or, as the case may be, to the best interests of the
other entity for which the individual acted as director or officer or
in a similar capacity at the Corporation's request; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual's conduct was lawful.
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SECTION 7.05 INSURANCE. Subject to the limitations contained in the Act, the
Corporation may purchase and maintain such insurance for the benefit of its
directors and officers as such, as the board may from time to time determine.
ARTICLE EIGHT
SHARES
SECTION 8.01 ALLOTMENT. Subject to the articles, shares of the Corporation may
be issued at such times and to such persons and for such consideration as the
board may determine and the board may from time to time allot or grant options
or other rights to purchase any of the shares of the Corporation at such times
and to such persons and for such consideration as the board shall determine.
SECTION 8.02 COMMISSIONS. Subject to the provisions of the Act, the board may
from time to time authorize the Corporation to pay a commission to any person in
consideration of his purchasing or agreeing to purchase shares of the
Corporation, whether from the Corporation or from any other person, or procuring
or agreeing to procure purchasers for any such shares.
SECTION 8.03 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, and upon payment of all applicable
taxes and any fees prescribed by the board.
SECTION 8.04 TRANSFER AGENTS, REGISTRARS AND DIVIDEND DISBURSING AGENTS. 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. The board may also from time to time appoint a dividend disbursing
agent to disburse dividends. One person may be appointed to any number of the
aforesaid positions. The board may at any time terminate any such appointment.
SECTION 8.05 CONCLUSIVENESS OF SECURITIES REGISTER. Subject to the provisions of
the Act, the Corporation shall treat the person in whose name any share is
registered in the securities register as absolute owner of such share with full
legal capacity and authority to exercise all rights of ownership, irrespective
of any indication to the contrary through knowledge or notice or description in
the Corporation's records or on the share certificate.
SECTION 8.06 SHARE CERTIFICATES. Every holder of one or more shares of the
Corporation shall be entitled, at his option, to a share certificate, or to a
non-transferable written acknowledgement of his right to obtain a share
certificate, stating the number and class or series of shares held by him as
shown on the securities register. Share certificates and acknowledgements of a
shareowner's right to a share certificate respectively, shall be in such form as
the board shall from time to time approve. Any share certificate shall be signed
in accordance with section 2.02, and need not be under the corporate seal;
provided that, unless the
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board otherwise determines, certificates representing shares in respect of which
a transfer agent and/or registrar has been appointed shall not be valid unless
countersigned by or on behalf of such transfer agent and/or registrar. The
signature of one of the signing officers or, in the case of share certificates
which are not valid unless counter-signed by or on behalf of a transfer agent
and/or registrar, the signatures of both signing officers, may be printed or
mechanically reproduced upon share certificates and every such printed or
mechanically reproduced signature shall for all purposes be deemed to be the
signature of the officer whose signature it reproduces and shall be binding upon
the Corporation. A share certificate executed as aforesaid shall be valid
notwithstanding that one or both of the officers whose facsimile signature
appears thereon no longer holds office at the date of issue of the certificate.
SECTION 8.07 REPLACEMENT OF SHARE CERTIFICATES. The board or any officer or
agent designated by the board may in its or his discretion direct the issue of a
new share certificate in lieu and upon cancellation of a share certificate that
has been mutilated or in substitution for a share certificate claimed to have
been lost, destroyed or wrongfully taken upon payment of such fee, if any, and
on such terms as to indemnity, reimbursement of expenses and evidence of loss
and of title as the board may from time to time prescribe, whether generally or
in any particular case.
SECTION 8.08 JOINT SHAREOWNERS. If two or more persons are registered as joint
holders of any share, the Corporation shall not be bound to issue more than one
certificate in respect thereof, and delivery of such certificate to one of such
persons shall be sufficient delivery to all of them. Any one of such persons may
give effectual receipts for the certificate issued in respect thereof or for any
dividend, bonus, return of capital or other money payable or warrant issuable in
respect of such share.
SECTION 8.09 DECEASED SHAREOWNERS. In the event of the death of a holder, or of
one of the joint holders, of any share, 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 or other distributions in respect thereof except upon
production of all such documents as may be required by law and upon compliance
with the reasonable requirements of the Corporation and its transfer agent.
ARTICLE NINE
DIVIDENDS AND RIGHTS
SECTION 9.01 DIVIDENDS. Subject to the provisions of the Act, the board may from
time to time declare dividends payable to the shareowners according to their
respective rights and interests in the Corporation. Dividends may be paid in
money or property or by issuing fully paid shares of the Corporation.
SECTION 9.02 DIVIDEND CHEQUES. A dividend payable in cash shall be paid by
cheque drawn on the Corporation's bankers or one of them or those of its
dividend disbursing agent 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
pre-paid 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
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mailed to them at their recorded address. The mailing of such cheque as
aforesaid, unless the same is not paid on due presentation on or after the
applicable dividend payment date, 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.
SECTION 9.03 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.
SECTION 9.04 UNCLAIMED DIVIDENDS. Any dividend unclaimed after a period of six
(6) years from the date on which the same has been declared to be payable shall
be forfeited and shall revert to the Corporation.
ARTICLE TEN
MEETINGS OF SHAREOWNERS
SECTION 10.01 ANNUAL MEETINGS. The annual meeting of shareowners shall be held
at such time in each year and, subject to section 10.03, at such place as the
board or failing it, the chairman of the board, the chairman of the executive
committee or the president may from time to time determine, for the purpose of
considering the financial statements and reports required by the Act to be
placed before the annual meeting, electing directors, appointing auditors and
for the transaction of such other business as may properly be brought before the
meeting.
SECTION 10.02 SPECIAL MEETINGS. Subject to compliance with the Act, the board,
the chairman of the board, the chairman of the executive committee or the
president shall have power to call a special meeting of shareowners at any time.
SECTION 10.03 PLACE OF MEETINGS. Meetings of shareowners shall be held at the
place where the registered office of the Corporation is situated or, if the
board so determines, at some other place within Canada.
SECTION 10.04 MEETINGS BY TELEPHONE, ELECTRONIC OR OTHER COMMUNICATION FACILITY.
Any person entitled to attend a meeting of shareowners may participate in the
meeting, to the extent and in the manner permitted by law, by means of a
telephonic, electronic or other communication facility that permits all
participants to communicate adequately with each other during the meeting, if
the Corporation makes available such a communication facility. A person
participating in a meeting by such means is deemed for the purposes of the Act
to be present at the meeting. The directors or the shareowners of the
Corporation who call a meeting of shareowners pursuant to the Act may determine
that the meeting shall be held, to the extent and in the manner permitted by
law, entirely by means of a telephonic, electronic or other communication
facility that permits all participants to communicate adequately with each other
during the meeting.
SECTION 10.05 NOTICE OF MEETINGS. Subject to compliance with the Act, notice of
the time and place of each meeting of shareowners shall be given in the manner
provided in section 12.01 not less than twenty-one (21) nor more than fifty (50)
days before the date of the meeting to each director, to the auditor and to each
shareowner who at the close of business on the record
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date for notice is entered in the securities register as the holder of one or
more shares carrying the right to vote at the meeting. A shareowner may in any
manner either before, during or after a meeting of shareowners waive notice of
or otherwise consent to a meeting of shareowners.
SECTION 10.06 CHAIRMAN, SECRETARY AND SCRUTINEERS. The chairman of any meeting
of shareowners 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,
chairman of the executive committee, president or a vice-president who is a
shareowner. If no such officer is present within fifteen (15) minutes after 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 and each
assistant-secretary of the Corporation is absent, the chairman shall appoint
some person, who need not be a shareowner, to act as secretary of the meeting.
If desired, one or more scrutineers, who need not be shareowners, may be
appointed by a resolution or by the chairman of the meeting.
SECTION 10.07 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to be
present at a meeting of shareowners shall be those entitled to vote thereat, the
directors and auditors of the Corporation and others who, although not entitled
to vote, are entitled or required under any provision of the Act or the articles
or by-laws to be present at the meeting. Any other person may be admitted only
on the invitation of the chairman of the meeting or with the consent of the
meeting.
SECTION 10.08 QUORUM. Except as otherwise provided by law or by the articles, a
quorum for the transaction of business at any meeting of shareowners shall be
not less than two persons present in person, each being a shareowner entitled to
vote thereat or a duly appointed proxy for an absent shareowner so entitled, and
holding or representing the holder or holders of shares carrying not less than a
majority of the voting power of all issued and outstanding shares of the
Corporation entitled to vote on a particular matter to be acted on at the
meeting, except that, when specified business is to be voted on by one or more
classes or series of shares voting as a class, unless otherwise provided by law,
regulatory authority or by the articles, the holders of not less than a majority
of the voting power of the shares of such classes or series shall constitute a
quorum for the transaction of such matter. If a quorum is present at the opening
of the meeting of shareowners, the shareowners present may proceed with the
business of the meeting, notwithstanding that a quorum is not present throughout
the meeting.
If a quorum is not present at the opening of a meeting of shareowners, the
shareowners present in person and entitled to be counted for the purpose of
forming a quorum shall have power to adjourn the meeting from time to time to a
fixed time and place without notice other than announcement at the meeting until
a quorum shall be present, subject to the provisions of the Act, the articles
and section 10.16 of this by-law. At any such adjourned meeting, provided a
quorum is present, any business may be transacted which might have been
transacted at the meeting adjourned.
SECTION 10.09 RIGHT TO VOTE. The shareowners entitled to vote at any meeting of
shareowners shall be determined in accordance with the provisions of the Act and
the articles.
SECTION 10.10 PROXIES. Every shareowner entitled to vote at a meeting of
shareowners may appoint a proxyholder, or one or more alternate proxyholders,
who need not be
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shareowners, 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 shareowner or his attorney and shall conform with the
requirements of the Act and applicable law.
SECTION 10.11 TIME FOR DEPOSIT OF PROXIES. The board may specify in a notice
calling a meeting of shareowners a time, preceding the time of such meeting by
not more than forty-eight (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.
SECTION 10.12 JOINT SHAREOWNERS. If two or more persons hold shares jointly, any
one of them present in person or represented by proxy at a meeting of
shareowners may, in the absence of the other or others, vote the shares; but if
two or more of those persons who are present, in person or by proxy, vote, they
shall vote as one on the shares jointly held by them.
SECTION 10.13 VOTES TO GOVERN. At any meeting of shareowners every question
shall, unless otherwise required by the articles or by-laws or by law, be
determined by the majority of the votes cast on the question. In case of an
equality of votes, either upon a show of hands or upon a poll, the chairman of
the meeting shall be entitled to a second or casting vote.
SECTION 10.14 SHOW OF HANDS. Subject to the provisions of the Act, any question
at a meeting of shareowners 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
that the vote upon the question has been carried or carried by a particular
majority or not carried and an entry to that effect in the minutes of the
meeting shall be prima facie evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against any resolution or other
proceeding in respect of the said question, and the result of the vote so taken
shall be the decision of the shareowners upon the said question.
SECTION 10.15 BALLOTS. On any question proposed for consideration at a meeting
of shareowners, and whether or not a show of hands has been taken thereon, any
shareowner or proxyholder entitled to vote at the meeting may require or demand
a ballot. A ballot so required or demanded shall be taken in such manner as the
chairman shall direct. A requirement or demand for a ballot may be withdrawn at
any time prior to the taking of the ballot. If a ballot is taken each person
present shall be entitled, in respect of the shares which he is entitled to
votes at the meeting upon the question, to that number of votes provided by the
Act or the articles, and the result of the ballot so taken shall be the decision
of the shareowners upon the said question.
SECTION 10.16 ADJOURNMENT. Subject to the articles, if a meeting of shareowners
is adjourned for less than thirty (30) days, it shall not be necessary to give
notice of the adjourned meeting, other than by announcement at the meeting that
is adjourned. If a meeting of shareowners is adjourned by one or more
adjournments for an aggregate of thirty (30) days or more, notice of the
adjourned meeting shall be given as for required by the Act.
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SECTION 10.17 RESOLUTION IN WRITING. A resolution in writing signed by all the
shareowners entitled to vote on that resolution at a meeting of shareowners is
as valid as if it had been passed at a meeting of the shareowners unless a
written statement with respect to the subject matter of the resolution is
submitted by a director or the auditors in accordance with the Act.
SECTION 10.18 ELECTRONIC VOTING BY SHAREOWNERS. Any vote at a meeting of the
shareowners may be held, to the extent and in the manner permitted by law,
entirely by means of a telephonic, electronic or other communication facility,
if the Corporation makes available such a communication facility. Any person
participating in a meeting of shareowners by electronic means as provided in
section 10.4 and entitled to vote at that meeting may vote, to the extent and in
the manner permitted by law, by means of the telephonic, electronic or other
communication facility that the Corporation has made available for that purpose.
ARTICLE ELEVEN
DIVISIONS AND DEPARTMENTS
SECTION 11.01 CREATION AND CONSOLIDATION OF DIVISIONS. The board may cause the
business and operations of the Corporation or any part thereof to be divided or
to be segregated into one or more divisions upon such basis as the board may
consider appropriate in each case. The board may also cause the business and
operations of any such division to be further divided into sub-units and the
business and operations of any such divisions or sub-units to be consolidated
upon such basis as the board may consider appropriate in each case.
SECTION 11.02 NAME OF DIVISIONS. Any division or its sub-units may be designated
by such name as the board may from time to time determine and may transact
business, enter into contracts, sign cheques and other documents of any kind and
do all acts and things under such name.
ARTICLE TWELVE
NOTICES
SECTION 12.01 METHOD OF SENDING NOTICE. Subject to compliance with all
applicable laws, 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
shareowner, director, officer, auditor or member of a committee of the board
shall be sufficiently sent if (i) delivered personally to the person to whom it
is to be sent, (ii) delivered to the recorded address or mailed to the recorded
address of that person by prepaid mail (iii) sent to that person at the recorded
address by any means of prepaid transmitted or recorded communication or (iv)
provided as an electronic document to the information system of that person. A
notice so delivered shall be deemed to have been sent when it is delivered
personally or to the recorded address. 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. A notice so
sent by any means of transmitted or recorded communication or provided as an
electronic document shall be deemed to have been sent when dispatched by the
Corporation if it uses its own facilities or information system and otherwise
when delivered to the appropriate communication company or agency or its
representative for dispatch. The secretary or assistant secretary may change or
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cause to be changed the recorded address of any shareowner, director, officer or
auditor or member of a committee of the board 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.
SECTION 12.02 ELECTRONIC DOCUMENTS. A requirement under this by-law to provide a
person with a notice, document or other information is not satisfied by the
provision of an electronic document unless:
(a) the addressee has consented, in the manner prescribed under the Act,
and has designated an information system for the receipt of the
electronic document;
(b) the electronic document is provided to the designated information
system, unless otherwise prescribed in the Act;
(c) in the case of a notice, document or other information that is
required by the Act to be provided by registered mail, the provision
of such notice, document or other information by the sending of an
electronic document is prescribed by the Act;
(d) the Act has been complied with;
(e) the information in the electronic document is accessible by the sender
so as to be usable for subsequent reference; and
(f) the information in the electronic document is accessible by the
addressee and capable of being retained by the addressee, so as to be
usable for subsequent reference.
SECTION 12.03 NOTICE TO JOINT SHAREOWNERS. 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 to one of such persons shall be sufficient notice to
all of them. The address to be used for the purpose of giving notices shall be
the recorded address.
SECTION 12.04 COMPUTATION OF TIME. In computing the date when notice must be
given under any provision requiring a specified number of days' notice of any
meeting or other event, the date of giving the notice shall be excluded and the
date of the meeting or other event shall be included.
SECTION 12.05 UNDELIVERED NOTICES. If any notice given to a shareowner pursuant
to section 12.01 is returned on three (3) consecutive occasions because he
cannot be found, the Corporation shall not be required to give any further
notices to such shareowner until he informs the Corporation in writing of his
new address.
SECTION 12.06 OMISSIONS AND ERRORS. The accidental omission to give any notice
to any shareowner, director, officer, auditor or member of a committee of the
board or the non-receipt of any notice by any such person or any error in any
notice not affecting the substance thereof shall not invalidate any action taken
at any meeting held pursuant to such notice or otherwise founded thereon.
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SECTION 12.07 PERSONS ENTITLED TO SHARES BY DEATH OR OPERATION OF LAW. Every
person who, by operation of law, transfer, death of a shareowner or 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 given to the
shareowner from whom he derives his title to such share prior to his name and
address being entered on the securities register (whether such notice was given
before or after the happening of the event upon which he became so entitled) and
prior to his furnishing to the Corporation the proof of authority or evidence of
his entitlement as provided in the Act.
SECTION 12.08 WAIVER OF NOTICE. Any shareowner (or his duly appointed
proxyholder), director, officer, auditor or member of a committee of the board
may at any time waive any notice, or waive or abridge the time for any notice,
required to be given to him under any provision 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 shareowners or of the board or committee
thereof which may be given in any manner.
ARTICLE THIRTEEN
FISCAL YEAR
SECTION 13.01 FISCAL YEAR. The fiscal period of the Corporation shall terminate
on such day in each year as the board of directors may from time to time
determine.
ARTICLE FOURTEEN
EFFECTIVE DATE
SECTION 14.01 EFFECTIVE DATE. This by-law is effective from the date of the
resolution of the directors adopting same and shall continue to be effective
unless amended by the directors until the next meeting of shareowners of the
Corporation, whereat if same is confirmed or confirmed as amended, this by-law
shall continue in effect in the form in which it was so confirmed.
SECTION 14.02 REPEAL. Upon the date of this by-law coming into force, By-Law No.
1986-1, of the Corporation, as amended, shall be repealed, provided that such
repeal shall not affect the previous operation of any by-law so repealed or
affect the validity of any act done or right, privilege, obligation or liability
acquired or incurred under or the validity of any contract or agreement made
pursuant to any such by-law prior to its repeal.
All officers and persons acting under any by-law so repealed shall continue to
act as appointed under the provisions of this by-law and all resolutions of the
shareowners or board or committee thereof with continuing effect passed under
any repealed by-law shall continue to be valid except to the extent inconsistent
with this by-law and until amended or repealed.
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The foregoing Amended and Restated By-Law 2002-1 was approved by the directors
of the Corporation at a meeting held on the 6th day of March, 2002.