Exhibit 3.2
GUARDIAN BIOTECHNOLOGIES INC.
BY-LAW
NO. 1
September 20, 2001
BY-LAW NO. 1
DEFINITIONS
LOCATION OF REGISTERED OFFICE AND OFFICES
Registered office
Offices
SHAREHOLDERS
Annual meetings
Special meetings
Place of meetings
Notice of meetings
Waiver of Notice
Chairman
Quorum
Representation at meetings
Right to Vote
Decisions by a Majority
Casting Vote
Vote by Show of Hands
Voice Vote
Vote by Secret Ballot
Procedure at meetings
Scrutineers
Addresses of the Shareholders and Subsequent Transferees of Shares
Signed Resolutions
BOARD OF DIRECTORS
Number
Qualification
Election and Term of Office
Resignation
Removal
Replacement
Remuneration
General Powers of the Directors
Irregularity
Meetings
Remuneration
Removal and Replacement
AUDIT COMMITTEE
Composition
Duties
Meetings
Applicable By-laws
OTHER COMMITTEES
Other Committees
INDEMNIFICATION AND EXEMPTION
Indemnity
Insurance
Reimbursement of expenses
SHARE CAPITAL
Issue and Stock Options
Share Certificates and Stock Transfers
Securities Register
Transfer Agents and Registrars
Record Date and Closing of Books
Lost or Destroyed Certificates
DIVIDENDS
Dividends
FISCAL YEAR AND AUDIT
Fiscal Year
Audit
CORPORATE REPRESENTATION FOR CERTAIN PURPOSES
Declaration
Representation at meetings
Signature of Documents
Declarations in the Register
MISCELLANEOUS PROVISIONS
Conflict with the Articles
Amendments
DEFINITIONS
For the purposes of these By-laws, unless otherwise provided :
- - "Act" means the Canada Business Corporations Act, R.S.C. (1985) ch. C-44, as
well as any amendment which may be made thereto, and any act which may be
substituted therefore;
- - "Articles" means the articles of association, of amalgamation or of
continuance of the Corporation, as amended from time to time;
- - "Auditor" means the auditor of the Corporation and includes an auditing firm;
- - "Ordinary Resolution" means a resolution adopted by the majority of the votes
cast by the shareholders qualified to vote in the circumstances, or signed by
all of them;
- - "Resident Canadian" has the particular meaning ascribed by the Act to such
expression, but summarily includes a Canadian citizen and a permanent resident,
within the meaning of the Immigration Act, who ordinarily reside in Canada;
LOCATION OF REGISTERED OFFICE AND OFFICES
1. Registered office. The registered office of the Corporation is situated in
the city or regional municipality recorded in the Articles, at the address
determined by the Board of Directors.
2. Offices. The Corporation may, in addition to its registered office, establish
elsewhere within or outside Canada any other office and agency.
SHAREHOLDERS
3. Annual meetings. The annual meeting of the shareholders of the Corporation
shall be held yearly on the date and at the time the Board of Directors may
determine in order to receive and examine the financial statements and, if any,
the report of the Auditor, elect directors, appoint an Auditor and fix or
authorize the Board of Directors to fix his remuneration and to examine, deal
with and dispose of such other business as may properly come before the meeting.
4. Special meetings. Special meetings of the shareholders may be called at any
time as determined by the President or the Board of Directors and shall be
called by the Board of Directors when required by one or more shareholders
holding no less than five per cent (5%) of the issued shares of the Corporation
carrying the right to vote at a meeting in conformity with the Act.
5. Place of meetings. Meetings of the shareholders shall be held in Canada at
the registered office of the Corporation or at any other place that may be fixed
by the Board of Directors. Meetings of the shareholders may be held outside
Canada if all shareholders entitled to vote thereat so agree; a shareholder who
attends such meeting is deemed to have so agreed, unless he is present for the
express purpose of objecting to the transaction of any business on the grounds
that the meeting is not lawfully held.
6. Notice of meetings. Notice of each annual meeting and of each special meeting
of the shareholders shall be delivered to the shareholders entitled to vote
thereat, the directors and the Auditor or, at the discretion of the person
charged with the giving of such notice, mailed by ordinary mail, transmitted by
facsimile or sent by electronic mail to the addressees at their respective
addresses entered in the books of the Corporation, no less than fourteen (14)
days prior to the date fixed for the meeting. If the address of the addressee is
not entered in the books of the Corporation, the notice may be sent as aforesaid
to the address that the person sending the notice considers to be most likely to
reach such addressee promptly. Any irregularity in the notice of meeting or
giving thereof, including the accidental omission to send such notice or failure
to receive on the part of the shareholder, shall in no way affect the validity
of proceedings of the meeting in question.
7. Waiver of notice. A shareholder or any other person entitled to be summoned
to a meeting of shareholders may waiver a notice of meeting prior to, during or
after such meeting is held. The mere presence of a shareholder shall constitute
a waiver, unless he is present for the express purpose of opposing the meeting
on the grounds that it was irregularly convened.
8. Chairman. The Chairman of the Board of Directors or, failing which, the
President of the Corporation or any other person appointed for such purpose by
the Board of Directors, shall preside at meetings of shareholders.
9. Quorum. A quorum of shareholders shall exist at an annual or special meeting
of shareholders, regardless of the number of persons physically present at the
meeting, if one or more holders of shares conferring not less than 33 1/3% of
the total number of votes attached to the aggregate of the shares carrying
voting rights at such meeting are present physically or represented in
accordance with section 11 herein below.
If a quorum is present at the opening of the meeting, the shareholders present
or represented may proceed with the business of the meeting, even if a quorum is
not present throughout the meeting.
If a quorum is not present at the opening of the meeting, the shareholders
present or represented may adjourn the meeting, provided there is a majority
vote to that effect, to another time and place but may not transact any other
business.
If a quorum is present at the reconvening of the meeting so adjourned, the
meeting may then proceed, failing which, a new meeting shall be convened.
10. Representation at meetings. Shareholders shall be entitled to vote in person
or, if a body corporate, by representatives duly authorized by resolution of its
directors or its decision-making body. Shareholders shall also be entitled to
vote by proxy.
A proxyholder need not be a shareholder of the Corporation and may represent
several shareholders. A proxy may be given for all or part of a shareholder's
shares.
A proxy shall be valid only at the meeting in respect of which it is given or
any adjournment thereof.
A proxy appointing a proxyholder shall be in the form prescribed by the Act and
its Regulations.
The Board of Directors may specify, in the notice of meeting of shareholders, a
date and time limit for depositing with the Corporation or its agent proxies to
be used at the meeting; such date and time limits shall not precede the meeting
by more than 48 hours, excluding Saturdays and statutory holidays.
The Board of Directors may also permit particulars of proxies for use at or in
connection with, any such meeting which have been deposited with the Corporation
or its agent at a place other than the place of such meeting to be sent by
facsimile to the Secretary of the Corporation prior to such meeting. In such
event, such proxies, if otherwise in order, shall be valid and any votes cast in
accordance therewith shall be counted.
11. Right to Vote. Subject to the provisions of the Act, each shareholder is
entitled to as many votes as his shares in the Corporation carry votes.
12. Decisions by a Majority. Unless otherwise provided in the Act, any question
submitted to the meeting of shareholders shall be decided by a simple majority
(50% + 1) of validly cast votes.
13. Casting vote. In the case of a tie vote, the Chairman of the meeting shall
have the casting vote.
14. Vote by show of hands. Except where a voice vote or secret ballot has been
requested, votes shall be taken by a show of hands. In such a case, shareholders
or proxyholders shall vote by raising their hands and the number of votes shall
be calculated based on the number of hands raised.
15. Voice vote. If the Chairman of a meeting so orders, or any proxyholder
representing at least ten per cent (10%) of the votes attaching to outstanding
voting shares so requests (such requests may be withdrawn), and if a vote by
secret ballot has not been requested, votes shall be taken by voice vote. In
such a case, each shareholder or proxyholder shall orally state his name and
that of each shareholder he represents by proxy, the number of votes he
represents and how he intends to cast such votes. The number of votes so cast
shall determine whether or not a resolution is adopted.
16. Vote by secret ballot. If the Chairman of a meeting so orders, or a
shareholder or proxyholder entitled to vote so requests, the vote shall be taken
by secret ballot. A request for a vote by secret ballot may be made at any time
before the meeting is closed, regardless of whether a vote by show of hands or a
voice vote has been previously held or not; such request may also be withdrawn.
Each shareholder or proxyholder shall submit to the scrutineers one or several
ballots on which he shall have indicated how he intends to cast his votes and,
where relevant, his name and the number of votes he has. The result of a secret
ballot shall be deemed to be a resolution of the meeting at which the ballot was
taken whether or not a vote by show of hands or a voice vote had previously been
taken on the same question.
17. Procedure at meetings. The Chairman of any meeting of shareholders shall
conduct the procedure thereat in all respects and his decision on all matters,
including any question regarding the validity or invalidity of any proxy or the
admissibility or inadmissibility of a proposal, shall be conclusive and binding
upon all the shareholders.
A declaration by the Chairman at any meeting that a resolution has been carried
or not, whether unanimously or by particular majority, shall be conclusive
evidence of the fact.
At any time during the meeting, at his own discretion or with the approval of
the shareholders given by a simple majority, the Chairman may adjourn a meeting
provided he has reasonable grounds to do so, such as when confusion and disorder
render the harmonious and orderly conduct of a meeting impossible, and he need
not give notice for the reconvening of a meeting so adjourned.
Should the Chairman of the meeting fail to carry out his duties loyalty, the
shareholders may, at all times, remove and replace him with another person
selected from amongst themselves.
The directors of the Corporation shall be entitled, in such sole capacity, to
attend meetings of shareholders and to take the floor thereat.
18. Scrutineers. The Chairman of any meeting of shareholders may appoint
scrutineers, who may but need not be directors, officers, employees or
shareholders of the Corporation, to act as the Chairman shall direct.
19. Addresses of the shareholders and subsequent transferees of shares. Every
shareholder shall furnish the Corporation with a mailing or electronic address
to which all corporate notices intended for such shareholder may be sent. Every
person who, by operation of the Act, transfer or other means whatsoever, shall
become entitled to any share, shall be bound by every notice in respect of such
share which, prior to the entry of his name and address on the register, is
given to the person whose name appears on the register at the time such notice
is given.
20. Signed resolutions. Subject to subsections 110(2) and 168(5) of the Act, a
resolution signed by all the shareholders entitled to vote on such resolution
shall be as valid as if it had been passed unanimously at a meeting duly
convened by such holders. Each duly signed resolution shall be kept with the
minutes of the meetings of shareholders.
BOARD OF DIRECTORS
21. Number. The business of the Corporation shall be administered by a Board of
Directors composed of a fixed number of directors indicated in the Corporation's
Articles. If the Articles provide for a minimum and maximum number of directors,
the Board of Directors shall be composed of such fixed number of directors but
more than three (1), as shall be established by resolution passed by the Board
of Directors or, failing this, as the shareholders choose to elect within such
limits.
22. 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 legal age and has been
placed under tutorship or curatorship; if he has been declared of unsound mind
by a court in Canada or elsewhere; if he has the status of an undischarged
bankrupt; or if a court has prohibited him from holding the office of director.
Unless otherwise set out in the Articles of the Corporation, a director need not
be a shareholder. A majority of the directors shall be Resident Canadians,
unless otherwise set out in the Act. At least one (1) of the directors shall be
independent and shall not be officers or employees of the Corporation or its
subsidiaries. A retiring director, if otherwise qualified, shall be eligible for
re-election.
23. Election and term of office. Except for the appointment of a director
following a vacancy during a term of office or for the election of one or
several additional directors, each director shall be elected by Ordinary
Resolution at a general annual meeting of shareholders, subject to the
provisions of the Articles of Corporation providing for cumulative voting or the
exclusive right of certain classes of shareholders to elect one or several
directors. Each director shall be elected either for a fixed term, which shall
end no later than at the close of the third annual meeting thereafter, or for an
indeterminate term, which shall end at the close of the first annual meeting
thereafter. Not all directors need have the same term of office. Directors shall
remain in office, failing the election of new directors by a meeting of
shareholders, until such time as a substitute has been elected.
24. Resignation. A director may resign from his office by sending written notice
thereof to the Corporation and need give grounds for such resignation. Said
resignation shall take effect on the date of sending or remittance thereof, or
on such later date as may be indicated therein.
25. Removal. Unless otherwise provided in the Articles, shareholders may remove
a director by Ordinary Resolution at a special meeting. The director who
receives notice of his impending removal may, in a written statement, explain to
the Corporation the reasons why he opposes his removal, and the Corporation
shall forward such written statement to the shareholders entitled to vote in
such matter.
A vacancy created by the removal of a director may be filled by the shareholders
at the same meeting; in such a case, notice of such meeting shall indicate that
an election is to be held should the resolution of removal be carried.
Should the holders of shares of a particular class have the exclusive right to
elect a director, such director may only be removed by Ordinary Resolution at a
special meeting of such holders.
The removal of a director, as well as his election, shall be at the discretion
of the shareholders. A director may be removed at any time and such removal need
not be based on any particular grounds, whether serious or not. Neither the
Corporation nor the shareholders voting in favour of the removal shall incur any
liability toward the director by the mere fact of his removal, even if there be
no grounds therefor.
26. Replacement. If a vacancy occurs on the Board of Directors, the remaining
directors may appoint a qualified person to fill such vacancy, for the unexpired
term of office. The directors may nonetheless continue to act despite one or
several vacancies, provided a quorum exists. Failing a quorum, the remaining
directors shall forthwith call a special meeting of shareholders to fill such
vacancy, in accordance with section 111 of the Act.
27. General powers of the directors. The directors of the Corporation shall
manage and administer the Corporation and may make or cause to be made any
contract which it may lawfully enter into. The directors shall be invested with
all such powers and authority as the Corporation by statute or its Articles is
authorized to exercise and do. The directors shall always act by resolution.
The directors may, in particular, acquire or dispose of, either by purchase,
sale, lease, exchange, mortgage or otherwise, stocks, interests, warrants,
options or other securities, buildings and other movable or immovable property
or any right or interest therein; for each transaction, they shall fix the
consideration and other conditions.
28. Irregularity. Notwithstanding that it be afterwards discovered that there
was some defect in the election of the Board of Directors or the election or
appointment of any director or that a director lacks or has lost his
qualification, all acts thereof shall be as valid and binding upon the
Corporation as if every such board or person had been duly elected or appointed
and had been qualified.
29. Use of property or information. No director may mingle the Corporation's
property with his own property or use for his own profit or that of a third
party any property of the Corporation or any information he obtains by reason of
his duties, unless he is expressly and specifically authorized to do so by the
shareholders of the Corporation.
30. Conflicts of interest. Each director shall avoid placing himself in a
situation of conflict between his personal interest and his obligations as a
director of the Corporation.
He shall promptly disclose to the Corporation any interest he has in any
enterprise or association that is likely to place him in a situation of conflict
of interest, as well as the rights he may enforce thereagainst, indicating, if
such be the case, the nature and value thereof. Such disclosure of interest
shall be recorded in the minutes of the proceedings of the Board of Directors. A
general disclosure shall remain valid until the facts have changed, and a
director need not reiterate such declaration for any particular, subsequent
transaction.
31. Contracts with the corporation. A director or an officer may, even in
performing his duties, enter into material contracts with the Corporation, or be
a director, an officer or a holder of a material interest in a body corporate
that is a party to such contract. He shall then, in accordance with section 120
of the Act, disclose in writing to the Corporation or request to have entered in
the minutes of meetings of directors the nature and extent of his interest in
such contract, even if such contract, within the scope of the normal business
activity of the Corporation, does not require the approval of either the
directors or the shareholders. For the purposes of this by-law, a general notice
that the director or officer is a director, an officer or a holder of a material
interest in a body corporate and is to be regarded as interested in any contract
made with that body corporate, is a sufficient declaration of interest.
A director who is so interested in a contract shall not discuss or vote on such
resolution to approve the contract unless the contract is one of the contracts
referred to in subsection 120(5) of the Act, that is, relating primarily to the
remuneration or indemnification of such director, or a contract with an
affiliate of the Corporation.
At the request of the President or any director, the interested director shall
leave the meeting while the Board of Directors discusses and votes on the
contract concerned.
Neither the Corporation nor any of its shareholders may contest the validity of
a contract entered into with a director or an officer of the Corporation, or
with a body corporate in which such director or officer is a director, an
officer or a holder of a material interest, for such sole reason, provided such
director or officer has disclosed his interest as aforementioned, the Board of
Directors or the Shareholders of the Corporation have approved the contract, and
the contract was, at that time, equitable for the Corporation.
MEETINGS OF THE BOARD OF DIRECTORS
32. Calling of meetings. Every year, immediately following the annual general
meeting of the shareholders, a meeting of the new directors present shall be
held without further notice if they constitute a quorum to elect or appoint the
officers of the Corporation and consider, deal with and dispose of any further
business.
Meetings of the Board of Directors may be called by or by order of the Chairman
of the Board of Directors, if any, the President of the Corporation or two (2)
directors and may be held anywhere within or outside Canada. A notice of each
meeting, specifying the place, date and time, shall be sent to each director at
his residence or workplace. The notice shall be sent no less than five (5) days
prior to the date fixed for the meeting by ordinary or registered mail or by
facsimile or electronic mail. In the absence of an address for a director, the
notice may be sent to the address at which the sender considers that the notice
is most likely to reach the director promptly.
The Board of Directors may resolve to hold periodic or fixed meetings of the
Board of Directors, with or without notices of meeting, at any place in Canada
or elsewhere.
The notice of a meeting of the Board of Directors need not specify the goals or
business thereof, with the exception of those matters referred to in subsection
115(3) of the Act, in particular, the declaration of dividends, the issue of
securities, the purchase of shares issued by the Corporation, the approval of
the annual financial statements, the filling of vacancies on the Board of
Directors or in the office of Auditor and the adoption, amendment or repealing
of by-laws.
Any director may waive in writing a notice of meeting of the Board of Directors
prior to, during or after the holding of such meeting. His mere presence at a
meeting shall constitute a waiver, unless he is present for the sole purpose of
objecting to the holding thereof on the grounds that the manner of calling it
was irregular.
Notice need not be given of the reconvening of an adjourned meeting of directors
if the date, time and place of such meeting were announced at the initial
meeting.
33. Participation by telephone. Directors may, if all are in agreement,
participate in a meeting of the Board of Directors using means permitting all
participants to communicate orally amongst themselves, in particular, by
telephone. A director participating in the meeting by such means shall be deemed
to have attended the meeting. The directors shall then vote by a voice vote, by
way of derogation to section 40 hereinbelow.
34. Quorum. A majority of the directors in office shall constitute a quorum for
a meeting of the Board of Directors. A quorum shall be present throughout the
meeting. Once a quorum exists, the directors may exercise their powers,
notwithstanding any vacancy on the board. No business shall be dealt with unless
the number of "Resident Canadian" directors prescribed in the Act is present.
35. Meeting chairman and secretary. Meetings of the Board of Directors shall be
chaired by the Chairman of the Board of Directors, if any, or, failing him, by
the President of the Corporation or, failing him, by a Vice-President designated
for such purpose by the President. The Secretary of the Corporation shall act as
Secretary of the meetings. The directors present at a meeting may nevertheless
appoint any other persons as Chairman or Secretary of such meetings.
36. Procedure. The Chairman of the meeting shall ensure that the meeting is
conducted smoothly and submit to the Board of Directors the motions on which a
vote is to be taken and shall generally conduct the procedure thereat in all
respects, in which regard his decision shall be final and binding on all
directors. Should the meeting Chairman fail to submit a motion, any director may
submit it himself before the meeting is adjourned or closed and, if such motion
lies within the competence of the Board of Directors, the Board of Directors
shall consider it. For such purpose, the agenda of each meeting of the Board of
Directors shall be deemed to include a period for the submission of motions by
the directors. Should the Chairman of the meeting fail to carry out his duties
loyally, the directors may remove him at any time and replace him by another
person.
37. Voting. Each director shall be entitled to one vote, and all matters shall
be decided by the majority of votes cast. The vote shall be taken by a show of
hands unless the Chairman of the meeting or a director requests a ballot, in
which case the vote shall be taken by ballot. If the vote is taken by ballot,
the meeting Secretary shall act as Scrutineer and count the ballots. The fact of
having voted by ballot shall not deprive a director of the right to express his
dissent in respect of the resolution concerned and to cause such dissent to be
entered. Voting by proxy shall not be permitted, and the Chairman of the meeting
shall have no casting vote in the case of an equality of votes.
38. Signed resolution. A written resolution, signed by all the directors, shall
be valid and have the same effect as though it were adopted at a meeting of the
Board of Directors duly called and held. Each signed resolution shall be
inserted in the minute book of the Corporation, in order of its date, in the
same manner as minutes.
OFFICERS
39. Officers. The officers of the Corporation shall be the Chairman of the
board, if appointed, the President, and, if elected or appointed, one or more
Vice-Presidents, the General Manager or Managing Director, the Secretary, the
Treasurer, and such other officers as the Board of Directors may appoint and
whose duties it may determine by resolution. Subject to those powers which,
pursuant to the Act, may only be exercised by the Board of Directors, the
officers of the Corporation shall exercise such powers and authority and shall
perform such duties, as prescribed by the Board of Directors in addition to
those specified in the by-laws. The same person may hold more than one (1)
office. None of the officers of the Corporation need be directors or
shareholders of the Corporation, with the exception of the President, if any,
the Chairman of the Board of Directors, if any, and the General Manager, if any.
The directors may also appoint other agents, officials and employees of the
Corporation within or outside Canada, who may be given such titles and who shall
exercise such powers and authority and perform such duties of management, as the
Board of Directors may determine.
In the event of the absence of any officer or for any other reason that the
directors may deem sufficient, the Board of Directors may delegate the powers
and authority of such officer to any other officer or to any director of the
Corporation.
40. Chairman of the board. The Chairman of the board shall preside at all
meetings of the Board of Directors and shareholders.
41. President. The President shall be the chief officer of the Corporation and,
subject to the control of the directors and the appointment of a General Manager
or Managing Director, shall supervise, administer and manage the business and
affairs of the Corporation generally. In the event of the absence, inability or
failure of the Chairman of the board to act, the President shall preside at all
meetings of the Board of Directors and of the shareholders.
42. Vice-president. In the event of the absence, inability or failure of the
President to act, the Vice-President or, if more than one (1) Vice-President,
the First Vice-President or, failing him, the Second Vice-President, and so
forth, shall assume the powers and perform the duties of the President. The
Vice-President shall exercise such powers and authority and perform such duties
prescribed by the Board of Directors or by the President.
43. General manager or managing director. The General Manager or Managing
Director shall, subject to the control of the President, manage the operations
of the Corporation generally. He shall comply with all instructions received
from the Board of Directors and shall give to the Board of Directors or the
members thereof the information they require concerning the affairs of the
Corporation.
The General Manager or Managing Director shall be a Resident Canadian and a
director. The Board of Directors may delegate to such General Manager or
Managing Director any of the powers of the board except those which by law a
General Manager or Managing Director has no authority to exercise.
44. Secretary. The Secretary shall attend to the preparation and sending of all
notices of the Corporation. He shall keep the minutes of all meetings of the
directors, the committees of the Board of Directors and the shareholders in a
book or books to be kept for that purpose. He shall have charge of the records
of the Corporation including books containing the names and addresses of the
members of the Board of Directors, together with copies of all reports made by
the Corporation and such other books and papers as the directors may direct. He
shall be responsible for the keeping and filing of all books, reports,
certificates and all other documents required by law to be kept and filed by the
Corporation. He shall be subject to the control of the President.
45. Treasurer. The Treasurer, subject to the control of the President, shall
have general charge of the finances of the Corporation. He shall deposit all
moneys and other valuable effects of the Corporation in the name and to the
credit of the Corporation in such banks or other depositories as the Board of
Directors may designate.
46. Removal, discharge and resignation. The Board of Directors, by the
affirmative vote of the absolute majority of its members, may remove any officer
with or without cause at any time, unless the resolution or contract providing
for his appointment stipulates otherwise. Any agent, officer, official or
servant who is not an officer of the Corporation may be discharged by the
President or any other officer authorized for such purpose, with or without
cause at any time.
Any officer may resign his office at any time by remitting his resignation in
writing to the President or the Secretary of the Corporation, or at a meeting of
the Board of Directors, unless otherwise agreed.
47. Vacancy. Any vacancy occurring in the office of any officer may be filled by
the Board of Directors.
48. Remuneration. The remuneration of all officers shall be fixed by the Board
of Directors. The remuneration of all other mandataries, officers, officials and
servants of the corporation shall be fixed by the President or any other officer
authorized for such purpose.
EXECUTIVE COMMITTEE
49. Election. The Board of Directors may appoint from among their number a
committee of the Board of Directors, designated "Executive Committee",
containing such proportion of Resident Canadians as may be required by the Act.
50. Officers, quorum and procedure. The committee shall have the power to
appoint its officers, to fix its quorum at not less than a majority of its
members, and to determine its procedure.
51. Chairmanship. Meetings of the Executive Committee shall be chaired by the
Chairman of the Board of Directors or, if none is appointed, by the President of
the Corporation. In his absence, meetings of the Executive Committee shall be
chaired by the person whom the members of the Executive Committee present choose
from amongst themselves.
52. Secretary. The Secretary of the Corporation shall act as Secretary of the
committee unless another secretary is appointed by the committee.
53. Powers. The Executive Committee shall possess the powers and authority of
the Board of Directors for the administration of the day-to-day affairs of the
Corporation, except for those powers which, by law, must be exercised by the
Board of Directors, as well as the powers which the Board of Directors may
expressly reserve for itself.
54. Supervisory power of the board of directors. All acts of the Executive
Committee shall be subject to the supervision of the Board of Directors and
shall be reported to the Board of Directors should the latter so directs. The
Board of Directors may invalidate or amend decisions made by the Executive
Committee, provided that the rights of third parties are not affected.
55. Participation by telephone and signed resolutions. Sections 36 and 41 shall
apply, mutatis mutandis, to meetings of the Executive Committee.
56. Meetings. Meetings of committee may be held at the registered office of the
Corporation or at such other place within or outside Canada as the committee may
determine.
Meetings of the committee may be called by or by the order of its Chairman or
two members of such committee.
A member of the Executive Committee may waive in writing a notice of the meeting
of the Executive Committee, prior to or after the holding thereof. His mere
attendance at a meeting shall be deemed a waiver, except where he attends a
meeting solely for the purpose of objecting to the holding thereof on the
grounds that the manner of calling it was irregular.
57. Remuneration. The remuneration of the committee members shall be fixed by
the Board of Directors.
58. Removal and replacement. The Board of Directors may at any time remove from
office any member of a committee of the Board of Directors.
The Board of Directors may also fill any vacancy which may occur on a committee.
AUDIT COMMITTEE
59. Composition. The Audit Committee shall consist of one (1) or more directors,
appointed each year by the Board of Directors. A majority of which cannot be
comprised of non-independent directors.
60. Duties. The Audit Committee shall review the financial statements of the
Corporation prior to their approval by the Board of Directors and shall perform
all the other duties the latter may establish.
61. Meetings. The meetings of the Audit Committee shall be convened by one of
its members or by the Auditor.
62. Applicable by-laws. The Audit Committee shall, in all other respect, be
subject to the same aforementioned provisions that apply to the Executive
Committee.
OTHER COMMITTEES
63. Other committees. The Board of Directors may create any other committee it
shall deem appropriate, whether or not it be comprised of members of the Board
of Directors. The Board of Directors may delegate to any such committee of the
board of directors any of the powers of the board except those which pursuant to
the Act a committee of the board of directors has no authority to exercise.
Unless otherwise ordered by the board, each committee so created shall have the
power to determine its own quorum of no less than a majority of its members, to
elect its own Chairman and to determine its own procedures.
INDEMNIFICATION AND EXEMPTION
64. Indemnification of directors and officers. The Corporation shall indemnify a
director or officer of the Corporation, a former director or officer of the
Corporation or a person who acts or acted at the Corporation's request as a
director or officer of a body corporate of which the Corporation is or was a
shareholder or creditor, and his/her heirs and legal representatives to the
extent permitted by the Canada Business Corporations Act.
65. Indemnity of others. Except as otherwise required by the Canada Business
Corporations Act and subject to paragraph 5, the Corporation may from time to
time indemnify and save harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed activity,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an activity by or in the right of the Corporation) by reason of the
fact that he is or was an employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another body corporate, partnership, joint venture,
trust or other enterprise, against expenses (including legal fees), judgments,
fines and any amount actually and reasonably incurred by him/her in connection
with such activity, suit or proceeding if he/she acted honestly and in good
faith with a view to the best interests of the Corporation and, with respect to
any criminal or administrative activity or proceeding that is enforced by a
monetary penalty, had reasonable grounds for believing that his/her conduct was
lawful. The termination of any activity, suit or proceeding by judgment, order,
settlement or conviction shall not, of itself, create a presumption that the
person did not act honestly and in good faith with a view to the best interests
of the Corporation and, with respect to any criminal or administrative activity
or proceeding that is enforced by a monetary penalty, had no reasonable grounds
for believing that his/her conduct was lawful.
66. Right of indemnity not exclusive: The provisions for indemnification
contained in the by-laws of the Corporation shall not be deemed exclusive of any
other rights to which any person seeking indemnification may be entitled under
any agreement, vote of shareholders or directors or otherwise, both as to
activity in his/her official capacity and as to activity in another capacity,
and shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs and legal
representatives of such a person.
67. No liability of directors or officers for certain matters. To the extent
permitted by law, no director or officer for the time being of the Corporation
shall be liable for the acts, receipts, neglects or defaults of any other
director or officer or employee or for joining in any receipt or 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 by the
Corporation or 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 or belonging to
the Corporation shall be placed out or invested or for any loss or damage
arising from the bankruptcy, insolvency or tortuous act of any person, firm or
body corporate with whom or which any moneys, securities or other assets
belonging to the Corporation shall be lodged or deposited or for any loss,
conversion, misapplication or misappropriation of or any damage resulting from
any dealings wit h any moneys, securities or other assets belonging to the
Corporation or for any other loss, damage or misfortune whatever that may happen
in the execution of the duties of his/her respective office or trust or in
relation thereto unless the same shall happen by or through his/her failure to
act honestly and in good faith with a view to the best interests of the
Corporation and in connection therewith to exercise the care, diligence and
skill that a reasonably prudent person would exercise in comparable
circumstances. If any director or officer of the Corporation shall be employed
by or shall perform services for the Corporation otherwise than as a director or
officer or shall be a member of a firm or a shareholder, director or officer of
a body corporate that is employed by or performs services for the Corporation,
the fact of his/her being a director or officer of the Corporation shall not
disentitle such director or officer or such firm or body corporate, as the case
may be, from receiving proper remuneration for such services.
SHARE CAPITAL
68. Issue and stock options. Subject to all provisions contained in the Articles
of the Corporation limiting the allocation or issue of shares of the share
capital of the Corporation, the directors may accept subscriptions for, allot,
distribute, issue unissued shares of the Corporation in whole or in part, grant
options thereon or otherwise dispose thereof to any person, enterprise,
corporation, company or body corporate, upon the conditions and for the lawful
consideration in compliance with the Articles of the Corporation determined by
the directors, without any requirement to offer such unissued shares to persons
who are already shareholders ratably to the shares held by them.
69. Share certificates and stock transfers. Certificates representing shares of
the share capital of the Corporation shall bear the signature of both the
President. Such signatures may be engraved, lithographed or otherwise
mechanically reproduced. Any certificate bearing the facsimile reproduction of
the signatures of such authorized officers shall be deemed to have been manually
signed by them and shall be as valid as if it had been so manually signed
notwithstanding that the persons whose signatures are so reproduced shall have
ceased to be officers of the Corporation.
70. Securities register. A central securities register shall be maintained by
the Corporation or its agent at the registered office or at any other place in
Canada designated by the Board of Directors. The Board of Directors may from
time to time provide that one (1) or more branch securities registers be
maintained at such places within Canada or elsewhere as may be designated by a
resolution and may appoint officers or agents to maintain the same and to effect
and record therein transfers of shares of the share capital of the Corporation.
71. Transfer agents and registrars. The agents of the Corporation charged with
the maintenance of the central and/or branch securities registers may be
designated as transfer agents and/or registrars of transfers, according to their
functions. The Board of Directors may at any time terminate the appointment of
such transfer agents and/or registrars.
70. Record date and closing of books. Subject to the provisions of the Act with
respect to notification, the directors may fix in advance, by resolution, a date
not exceeding fifty (50) days preceding the date for payment of a dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares of the capital stock of the Corporation shall go into
effect as the record date for the determination of the shareholders entitled to
receive payment of such dividend, the allotment of such rights or the exercise
of such rights in respect of such change, conversion or exchange of the capital
stock of the Corporation with the effect that only the shareholders of record on
the date so fixed by the Board of Directors shall be entitled to receive payment
of such dividend or allotment of rights or to exercise such rights, as the case
may be, notwithstanding a transfer of any shares on the books of the Corporation
after such record date.
71. Lost or destroyed certificates. The Board of Directors may, upon such terms
and conditions as to indemnity and otherwise as they may deem advisable, direct
that a new certificate or certificates of shares be issued to replace any
certificate or certificates of shares theretofore issued by the Corporation that
have been worn out, lost, stolen or destroyed. The Board of Directors, when
authorizing the issue of such new certificate or certificates, may, in its
discretion, and as a condition precedent thereto, require the owner of such
worn-out, lost, stolen or destroyed certificate or his legal representatives to
give to the Corporation and/or transfer agent or transfer agents and to such
registrar or registrars, as may be authorized or required to countersign such
new certificate or certificates a bond in such sum as they may direct, as
indemnity against any claim that may be made against them or any of them for or
in respect of the shares represented by such certificates alleged to have
been-worn out, lost, stolen or destroyed.
DIVIDENDS
72. Dividends. The Board of Directors may, from time to time and in compliance
with the law, declare and pay dividends to the shareholders, in accordance with
their respective rights.
The Board of Directors may stipulate that a dividend be payable, in whole or in
part, in Corporation stock. A transfer of shares shall not effect assignment of
the rights to the dividends declared thereon so long as the transfer is not
recorded. Where two (2) or more persons are recorded as joint holders of one
share, each of them may give a valid receipt for any dividend payable or paid on
such share.
FISCAL YEAR AND AUDIT
73. Fiscal year. The period for the fiscal year of the Corporation shall be
determined by the Board of Directors.
74. Audit. The shareholders, at each annual general meeting, shall appoint an
Auditor or auditors to hold office until the next annual general meeting or
until the appointment of his or their successor or successors, unless he or they
resign or his or their office becomes vacant. At least once in every fiscal
year, such Auditor shall examine the accounts of the Corporation and the
financial statements to be presented at the annual general meeting and shall
report thereon to the shareholders. The remuneration of an Auditor may be fixed
by the shareholders or by the Board of Directors, should the former so
authorize.
The Auditor shall be independent of the Corporation, of its affiliates, or the
directors or officers thereof, in accordance with the Act. The shareholders may
remove the Auditor from office at any time at a special meeting. A vacancy
created by the removal of the Auditor may be filled by the shareholders at the
meeting at which the Auditor is removed or, if not so filled, may be filled by
the Board of Directors. Any other vacancy which may occur shall be filled by the
Board of Directors in accordance with section 166 of the Act.
The shareholders may decide not to appoint an Auditor for any fiscal year, by
resolution receiving the unanimous consent of all the shareholders including
those who otherwise are not qualified to vote. The resolution shall be valid
only until the next annual meeting.
CORPORATE REPRESENTATION FOR CERTAIN PURPOSES
75. Declaration. The President, Chairman of the Board of Directors, any
Vice-President, the General Manager or Managing Director, the Comptroller, the
Secretary or the Treasurer or any one (1) of them or, if authorized by the Board
of Directors, any other officer, official or person, shall be authorized and
empowered to make answer for the Corporation to all writs, orders and
interrogatories upon articulated facts issued out of any Court, to answer for
and on behalf of the Corporation to any writ of attachment by way of garnishment
in which the Corporation is garnishee, to make all affidavits and sworn
declarations in connection therewith or in connection with any judicial
proceedings to which the Corporation is a party, to make petitions for
assignment of property, winding-up or receivership against any debtor of the
Corporation, to attend and vote at all meetings of creditors of the
Corporation's debtors and to grant proxies in connection therewith.
76. Representation at meetings. The President, Chairman of the Board of
Directors, any Vice-President, the General Manager or Managing Director, the
Comptroller, the Secretary or the Treasurer, or any one (1) of them or any other
officer or person thereunto authorized by the Board of Directors shall represent
the Corporation, attend and vote at any meeting of shareholders or members of
any firm, company, body corporate or syndicate in which the Corporation holds
shares or is otherwise interested, and any action taken and/or vote cast by them
shall be deemed to be the act and/or vote of the Corporation.
Any two (2) of the following persons acting jointly, namely the President, the
Chairman of the Board of Directors, any Vice-President, the General Manager or
Managing Director, the Comptroller, the Secretary or the Treasurer shall
moreover be empowered to authorize any person (whether an officer of the
Corporation or not) to attend, vote and otherwise act at all meetings of
shareholders or members of any firm, company, corporation or syndicate in which
the Corporation holds shares or is otherwise interested, and for this purpose,
such officers shall be authorized to execute and to deliver for and on behalf of
the Corporation a proxy in such form and under such terms as such officers see
fit, including therein, but without in any way limiting or restricting the
generality of the foregoing, provision for the appointment of a substitute
proxyholder and the revocation of all proxies given by the Corporation prior
thereto with respect to any such meeting.
77. Signature of documents. Contracts, documents, written acts, including
discharges and releases, requiring the signature of the Corporation may be
validly signed by the President alone, or by any two of the following persons
acting jointly, namely, any Vice-President, the General Manager or Managing
Director, the Secretary and the Treasurer, and shall hence be binding on the
Corporation. The Board of Directors may also designate any other person to sign
and deliver on behalf of the Corporation, either alone or jointly with one (1)
or several other persons, all contracts, documents and written acts, and such
authorization may be given by resolution in general or specific terms.
78. Declarations in the Register. Declarations to be filed with the Inspector
General of Financial Institutions of Quebec in accordance with the Act
respecting the legal publicity of sole proprietorships, partnerships and legal
persons or with any competent authorities shall be signed by the President, any
director of the Corporation or any other person authorized for such purpose by
resolution of the Board of Directors. Any director having ceased to hold such
office as a result of his resignation, removal or otherwise shall be authorized
to sign on behalf of the Corporation and file an amending declaration and a Form
6 (Notice of Directors or Notice of change of Directors) to the effect that he
has ceased to be a director, from fifteen (15) days after the date of such
cessation, unless he receives proof that the Corporation has filed such a
declaration.
MISCELLANEOUS PROVISIONS
79. Conflict with the Articles. In the event of a conflict between the
provisions of a by-law and those of the Articles, the latter shall prevail.
80. Amendments. The Board of Directors shall have the power to adopt, repeal or
amend a by-law, but such measure shall apply only until the next annual general
or special meeting of the shareholders. If such adoption, repeal or amendment is
not confirmed or modified by Ordinary Resolution at such annual general or
special meeting, it shall cease to be in force, but only as of that date. Any
shareholder may, in accordance with section 137 of the Act, submit a proposal at
an annual meeting that a by-law be adopted, amended or repealed.
/s/ SUN LEE
_____________________________________
SUN LEE
President and Chief Executive Officer
RESOLUTION OF THE DIRECTORS AND SHAREHOLDERS OF
GUARDIAN BIOTECHNOLOGIES INC.
RESOLVED that the foregoing By-law No. 1 is made a by-law of the Corporation.
The undersigned, being all the directors of Guardian Biotechnologies Inc.,
hereby sign the foregoing resolution.
DATED 20/09/2002
/s/ SUN LEE
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Director
/s/ SCOTT LEE
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Director
/s/ PAUL GRENVILLE ARNISON
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Director