Exhibit 3.40
BY-LAW NO. 3
A by-law relating generally to the transaction of the business
and affairs of
DANKA BUSINESS SYSTEMS LTD.
BE IT ENACTED as a by-law of the Corporation as follows:
Section One
INTERPRETATION
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1.01 Definitions - In the by-laws of the Corporation, unless the context
otherwise requires:
"Act" means the Canada Business Corporations Act, and any statute that may
be substituted therefor, as from time to time amended;
"articles" means the articles attached to the certificate of incorporation
dated January 14, 1994 of the Corporation 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 the corporation incorporated by certificate of
incorporation under the Act and named Danka Business Systems Ltd.
"distributing corporation" means a corporation, any of the issued
securities of which are or were part of a distribution to the public and
remain outstanding and are held by more than one person;
"meeting of shareholders" includes an annual meeting of shareholders and a
special meeting of shareholders;
"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 shareholder his address as
recorded in the securities register; and in the case of joint shareholders
the address appearing in the securities register in respect of such joint
holding or the first address so appearing if there are more than one; and
in the case of a director, officer, auditor or member of a committee of
the board, his latest address as recorded 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 2.04
or by a resolution passed pursuant thereto;
"special meeting of shareholders" includes a special meeting of all
shareholders entitled to vote at an annual meeting of shareholders and a
meeting of any class or classes of shareholders entitled to vote on the
question at issue;
1.02 Save as aforesaid, words and expressions defined in the Act have the same
meanings when used herein.
1.03 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.
Section Two
BUSINESS OF THE CORPORATION
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2.01 Registered Office - Until changed in accordance with the Act, the
registered office of the Corporation shall be at the Municipality of
Metropolitan Toronto in the Province of Ontario and at such location therein as
the board may from time to time determine.
2.02 Corporate Seal - Until changed by the board, the corporate seal of the
Corporation, if any, shall be in the form impressed hereon.
2.03 Financial Year - Until changed by the board, the financial year of the
Corporation shall end on the 31st day of December in each year.
2.04 Execution of Instruments - Deeds, transfers, assignments, bills of sale,
contracts, obligations, certificates and other instruments may be signed on
behalf of the Corporation by any one director or officer. In addition, the board
may from time to time direct the manner in which
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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.
2.05 Banking Arrangements - The banking 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 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.
2.06 Voting Rights in Other Bodies Corporate - The signing officers of the
Corporation may execute and deliver proxies and arrange for the issuance of
voting 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.
2.07 Withholding Information from Shareholders - Subject to the provisions of
the Act, no shareholder 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, could be inexpedient in the interests of the shareholders
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 shareholders and no
shareholder shall have any right to inspect any account, record or document of
the Corporation except as conferred by the Act or authorized by the board.
Section Three
BORROWING AND SECURITIES
------------------------
3.01 Borrowing Power - Without limiting the borrowing powers of the Corporation
as set forth in the Act, the board may from time to time:
(a) borrow money upon the credit of the Corporation;
(b) issue, reissue, sell or pledge bonds, debentures, notes or other
evidence of indebtedness or guarantee of the Corporation, whether secured
or unsecured;
(c) subject to the Act, give a guarantee on behalf of the Corporation to
secure performance of an obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest
in or charge upon all or any real or personal, movable or immovable
property of the Corporation,
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owned or subsequently acquired, including book debts, rights, powers,
franchises and undertaking by way of mortgage, hypothec, pledge or
otherwise, to secure payment of any such evidence of indebtedness or
guarantee whether present or future of the Corporation.
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.
3.02 Delegation - The board may from time to time by resolution delegate to a
director, a committee of directors or an officer 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.
Section Four
DIRECTORS
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4.01 Number of Directors and Quorum - Until changed in accordance with the Act,
the board shall consist of not fewer than the minimum number and not more than
the maximum number of directors provided in the articles. Subject to the Act and
to section 4.08 hereof, the quorum for the transaction of business at any
meeting of the board shall consist of a majority of directors or such other
number of directors as the board may from time to time determine.
4.02 Qualification - No person shall be qualified for election as a director if
he is less than 18 years of age; if he is of unsound mind and has been so found
by a court in Canada or elsewhere; if he is not an individual; or if he has the
status of a bankrupt. A director need not be a shareholder. A majority of the
directors shall be resident Canadians. If the Corporation is a distributing
corporation at least two directors shall not be officers or employees of the
Corporation or its affiliates.
4.03 Election and Term - Directors shall be elected yearly to hold office until
the next annual meeting of shareholders or until the first meeting of
shareholders and until their successors are elected. At each annual meeting of
shareholders, all the directors then in office shall retire 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 shareholders otherwise determine. The election shall be by
resolution.
4.04 Removal of Directors - Subject to the provisions of the Act, the
shareholders may by resolution passed at a special meeting remove any director
from office and the vacancy created by such removal may be filled at the same
meeting failing which it may be filled by the directors.
4.05 Vacation of Office - A director ceases to hold office when he dies; he is
removed from office by the shareholders; he ceases to be qualified for election
as a director; or his written
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resignation is sent or delivered to the Corporation, or if a time is specified
in such resignation, at the time so specified, whichever is later.
4.06 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 shareholders 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 shareholders to elect the
number or minimum number of directors, the board shall forthwith call a special
meeting of shareholders to fill the vacancy. If the board fails to call such
meeting or if there are no such directors then in office, any shareholder may
call the meeting.
4.07 Action by the Board - Subject to any unanimous shareholder agreement, the
board shall manage the business and affairs of the Corporation. Subject to
sections 4.08 and 4.09, the powers of the board may be exercised by resolution
passed at a meeting at which a quorum is present or by resolution in writing
signed by all the directors entitled to vote on that resolution at a meeting of
the board. Where there is a vacancy in the board, the remaining directors may
exercise all the powers of the board so long as a quorum remains in office.
Where the Corporation has only one director, that director may constitute the
meeting.
4.08 Canadian Majority - The board shall not transact business at a meeting,
other than filling a vacancy in the board, unless a majority of the directors
present are resident Canadians, except where:
(a) a resident Canadian director who is unable to be present approves in
writing or by telephone or other communications facilities the business
transacted at the meeting; and
(b) a majority of resident Canadian directors would have been
present had that director been present at the meeting.
4.09 Meetings by Telephone - If all the directors consent, a director may
participate in a meeting of the board or of a committee of the board by means of
such telephone or other communications facilities as permit all persons
participating in the meeting to hear each other, and a director participating in
such a meeting by such means is deemed to be present at the meeting. Any such
consent shall be effective whether given before or after the meeting to which it
relates and may be given with respect to all meetings of the board and of
committees of the board held while a director holds office.
4.10 Place of Meetings - Meetings of the board maybe held at anyplace in or
outside Canada.
4.11 Calling of Meetings - Meetings of the board shall be held from time to time
and at such time at such place as the board, the chairman of the board, the
managing director, the president or any two directors may determine.
4.12 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 48 hours before the
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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, including any
proposal to:
(a) submit to the shareholders any question or matter requiring approval
of the shareholders;
(b) fill a vacancy among the directors or in the office of auditor;
(c) issue securities;
(d) declare dividends;
(e) purchase, redeem or otherwise acquire shares of the Corporation;
(f) pay a commission for the sale of shares;
(g) approve a management proxy circular;
(h) approve a take-over bid circular or directors' circular;
(i) approve any annual financial statements; or
(j) adopt, amend or repeal by-laws.
A director may in any manner waive notice of or otherwise consent to a meeting
of the board. Attendance of a director at a meeting of directors is a waiver of
notice of the meeting except where a director attends a meeting for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called.
4.13 First Meeting of New Board - Provided a quorum of directors is present,
each newly elected board may without notice hold its first meeting immediately
following the meeting of shareholders at which such board is elected.
4.14 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.
4.15 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.
4.16 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
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meeting: chairman of the board, managing director, president, or a
vice-president who is a director. If no such officer is present, the directors
present shall chose one of their number to be chairman.
4.17 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.
4.18 Conflict of Interest - A director or officer who is a party to, or who is
a director or officer of or has a material interest in any person who is a party
to, a material contract or proposed material contract with the Corporation shall
disclose the nature and extent of his interest at the time and in the manner
provided by the Act. Any such contract or proposed contract shall be referred to
the board or the shareholders for approval even if such contract is one that in
the ordinary course of the Corporation's business would not require approval by
the board or the shareholders, and a director interested in a contract so
referred to the board shall not vote on any resolution to approve the same
except as provided by the Act.
4.19 Remuneration and Expenses - Subject to any unanimous shareholder
agreement, 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 traveling and other expenses properly incurred by them in
attending meetings of the board or any committee thereof. Nothing herein
contained shall preclude any director from serving the Corporation in any other
capacity and receiving remuneration therefor.
Section Five
COMMITTEES
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5.01 Committee of Directors - The board may appoint from its members a
committee of directors, however designated, and delegate to such committee any
of the powers of the board except those which, under the Act, a committee of
directors has no authority to exercise. A majority of the members of such
committee shall be resident Canadians.
5.02 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.
5.03 Transaction of Business - Subject to the provisions of section 4.09, the
powers of a committee of directors may be exercised by a meeting at which a
quorum of the committee is present or by resolution in writing signed by all the
members of such committee who would have been entitled to vote on that
resolution at a meeting of the committee. Meetings of such committee may be held
at any place in or outside Canada.
5.04 Audit Committee - If the Corporation is a distributing corporation, the
board shall elect annually from among its number an audit committee to be
composed of not fewer than 3
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directors of whom a majority shall not be officers or employees of the
Corporation or its affiliates. The audit committee shall have the powers and
duties provided in the Act.
5.05 Advisory Committees - The board may from time to time appoint such other
committees as it may deem desirable, but the functions of any such other
committees shall be advisory only.
Section Six
OFFICERS
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6.01 Appointment - Subject to any unanimous shareholder agreement, the board
may from time to time appoint a president, one or more vice-presidents (to which
title may be added words indicating seniority or function), a secretary, a
treasurer and such other officers as the board may determine, including one or
more assistants to any of the officers so appointed. The board may specify the
duties of and, in accordance with this by-law and subject to the provisions of
the Act, delegate to such officers powers to manage the business and affairs of
the Corporation. Subject to sections 6.02 and 6.03, an officer may but need not
be a director and one person may hold more than one office.
6.02 Chairman of the Board - The board may from time to time also appoint a
chairman of the board who shall be a director. If appointed, the board may
assign to him any of the powers and duties that are by any provisions of this
by-law capable of being assigned to the managing director or to the president;
and he shall, subject to the provisions of the Act, have such other powers and
duties as the board may specify. During the absence or disability of the
chairman of the board, his duties shall be performed and his powers exercised by
the managing director, if any, or by the president.
6.03 Managing Director - The board may from time to time appoint a managing
director who shall be a resident Canadian and a director. If appointed, he shall
be the chief executive officer and, subject to the authority of the board, shall
have general supervision of the business and affairs of the Corporation; and he
shall, subject to the provisions of the Act, have such other powers and duties
as the board may specify. During the absence or disability of the president, or
if no president has been appointed, the managing director shall also have the
powers and duties of that office.
6.04 President - If appointed, the president shall be the chief operating
officer and, subject to the authority of the board, shall have general
supervision of the business of the Corporation; and he shall have such other
powers and duties as the board may specify. During the absence or disability of
the managing director, or if no managing director has been appointed, the
president shall also have the powers and duties of that office.
6.05 Vice-President - A vice-president shall have such powers and duties as the
board or the chief executive officer may specify.
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6.06 Secretary - The secretary shall attend and be the secretary of all
meetings of the board, shareholders and committees of the board and shall enter
or cause to be entered in records kept for that purpose minutes of all
proceedings thereat; he shall give or cause to be given, as and when instructed,
all notices to shareholders, directors, officers, 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.
6.07 Treasurer - The treasurer shall keep proper accounting records in
compliance with the Act and shall be responsible for the deposit of money, the
safekeeping of securities and the disbursement of the funds of the Corporation;
he shall render to the board whenever required an account of all his
transactions as treasurer and of the financial position of the Corporation and
he shall have such other powers and duties as the board or the chief executive
officer may specify.
6.08 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.
6.09 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.
6.10 Term of Office - The board, in its discretion, may remove any officer of
the Corporation, without prejudice to such officer's rights under any employment
contract. Otherwise each officer appointed by the board shall hold office until
his successor is appointed.
6.11 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.
6.12 Conflict of Interest - An officer shall disclose his interest in any
material contract or proposed material contract with the Corporation in
accordance with section 4.18.
6.13 Agents and Attorneys - The board 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.
6.14 Fidelity Bonds - The board may require such officers, employees and agents
of the Corporation as the board deems advisable to furnish bonds for the
faithful discharge of their powers and duties, in such form and with such surety
as the board may from time to time determine.
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Section Seven
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
--------------------------------------------
7.01 Limitation of Liability - Every director and officer of the Corporation in
exercising his powers and discharging his duties shall act honestly and in good
faith with a view to the best interests of the Corporation and exercise the
care, diligence and skill that a reasonably prudent person would exercise in
comparable circumstances. Subject to the foregoing, no director or officer 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 other act for conformity,
or for any loss, damage or expense happening to the Corporation through the
insufficiency or deficiency of title to any property acquired for or on behalf
of the Corporation, or for the insufficiency or deficiency of any security in or
upon which any of the moneys of the Corporation shall be invested, or for any
loss or damage arising from the bankruptcy, insolvency or tortious acts of any
person with whom any of the moneys, securities or effects of the Corporation
shall be deposited, or for any loss occasioned by any error of judgment or
oversight on his part, or for any other loss, damage or misfortune whatever
which shall happen in the execution of the duties of his office or in relation
thereto, unless the same are occasioned by his own wilful neglect or default;
provided that nothing herein shall relieve any director or officer from the duty
to act in accordance with the Act and the regulations thereunder or from
liability for any breach thereof.
7.02 Indemnity - Subject to the limitations contained in the Act, the
Corporation shall indemnify a director or officer, a former director or officer,
or a person who acts or acted at the Corporation's request as a director or
officer of a body corporate of which the Corporation is or was a shareholder or
creditor (or a person who undertakes or has undertaken any liability on behalf
of the Corporation or any such body corporate) and his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative action or proceeding to which
he is made a party by reason of being or having been a director or officer of
the Corporation or such body corporate, if
(a) he acted honestly and in good faith with a view to the best interests
of the Corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had reasonable
grounds for believing that his conduct was lawful.
The Corporation shall also indemnify such person in such other circumstances as
the Act permits or requires.
7.03 Insurance - Subject to the limitations contained in the Act, the
Corporation may purchase and maintain insurance for the benefit of any person
referred to in section 7.02 hereof.
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Section Eight
SHARES
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8.01 Allotment - Subject to the provisions of the Act, the board may from time
to time grant options to purchase or allot the whole or any part of the
authorized and unissued shares of the Corporation at such times and to such
persons and for such consideration as the board shall determine, provided that
no share shall be issued until it is fully paid as prescribed by the Act.
8.02 Commissions - The board may from time to time authorize the Corporation to
pay a reasonable commission to any person in consideration of his purchasing or
agreeing to purchase shares of the Corporation from the Corporation or from any
other person, or procuring or agreeing to procure purchasers for any such
shares.
8.03 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, if
any, as the board may from time to time prescribe, upon payment of all
applicable taxes and any fees prescribed by the board, upon compliance with such
restrictions on transfer as are authorized by the articles and upon satisfaction
of any lien referred to in section 8.05.
8.04 Transfer Agents and Registrars - The board may from time to time appoint a
registrar to maintain the securities register and a transfer agent to maintain
the register of transfers and may also appoint one or more branch registrars to
maintain branch securities registers of transfers, but one person may be
appointed both registrar and transfer agent. The board may at any time terminate
any such appointment.
8.05 Lien for Indebtedness - If the articles provide that the Corporation shall
have a lien on shares registered in the name of a shareholder indebted to the
Corporation, such lien may be enforced, subject to any other provision of the
articles and to any unanimous shareholder agreement, by the sale of the shares
thereby affected or by any other action, suit, remedy or proceeding authorized
or permitted by law or by equity and, pending such enforcement, the Corporation
may refuse to register a transfer of the whole or any part of such shares.
8.06 Non-Recognition of Trusts - Subject to the provisions of the Act, the
Corporation shall treat the registered owner of a security as the person
exclusively entitled to vote, to receive notices, to receive any interest,
dividend or other payments in respect of the share, and otherwise to exercise
all the rights and powers of an owner of the share.
8.07 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 acknowledgment 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
shareholder's
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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 2.04 and need not be under the corporate seal; provided
that, unless the 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 countersigned by or on behalf of a
transfer agent and/or registrar, the signatures of both signing officers, may be
printed or mechanically reproduced in facsimile upon share certificates and
every such facsimile 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.
8.08 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 of 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 if the owner:
(a) so requests before the Corporation has notice that the security has
been acquired by a bona fide purchaser;
(b) furnishes the Corporation with an indemnity bond sufficient, in the
discretion of the board, to protect the Corporation; and
(c) satisfies any other reasonable requisites imposed by the Corporation
from time to time, whether generally or in any particular case.
8.09 Joint Shareholders - 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 or written acknowledgment referred to in section 8.07 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.
8.10 Deceased Shareholders - 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 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 agents.
Section Nine
DIVIDENDS AND RIGHTS
--------------------
9.01 Dividends - The board may from time to time declare dividends payable to
the shareholders according to their respective rights and interests in the
Corporation. Dividends may
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be paid by issuing fully paid shares of the Corporation and, subject to the
provisions of the Act, in money or property. 1
9.02 Dividend Cheques - A dividend payable in cash shall be paid by cheque
drawn on the Corporation's bankers or one of them to the order of each
registered holder of shares of the class or series in respect of which it has
been declared and mailed by prepaid ordinary mail to such registered holder at
his recorded address, unless such holder otherwise directs. In the case of joint
holders the cheque shall, unless such joint holders otherwise direct, be made
payable to the order of all of such joint holders and mailed to them at their
recorded address. The mailing of such cheque as aforesaid, unless the same is
not paid on due presentation, shall satisfy and discharge the liability for the
dividend to the extent of the sum represented thereby plus the amount of any tax
which the Corporation is required to and does withhold.
9.03 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.
9.04 Record Date for Dividends and Rights - The board may fix in advance a
date, preceding by not more than 50 days the date for the payment of any
dividend or the date for the issue of any warrant or other evidence of right to
subscribe for securities of the Corporation, as a record date for the
determination of the persons entitled to receive payment of such dividend or to
exercise the right to subscribe for such securities, provided that, unless
notice of the record date is waived in writing by every holder of a share of the
class or series affected whose name is set out in the securities register at the
close of business on the day the directors fix the record date, notice of any
such record date shall be given not less than 7 days before such record date, by
newspaper advertisement in the manner provided in the Act. Where no record date
is fixed in advance as aforesaid, the record date for the determination of the
persons entitled to receive payment of any dividend or to exercise the right to
subscribe for securities of the Corporation shall be at the close of business on
the day on which the resolution relating to such dividend or right to subscribe
is passed by the board.
9.05 Unclaimed Dividends - Any dividend unclaimed after a period of 6 years
from the date on which the same has been declared to be payable shall be
forfeited and shall revert to the Corporation.
Section Ten
MEETINGS OF SHAREHOLDERS
------------------------
10.01 Annual Meetings - The annual meeting of shareholders shall be held at
such time in each year and, subject to section 10.03, at such place as the
board, the chairman of the board, the managing director or the president may
from time to time determine, for the purpose of considering the financial
statements and reports required by the Act to be placed before the
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annual meeting, electing directors, appointing auditors and for the transaction
of such other business as may properly be brought before the meeting.
10.02 Special Meetings - The board, the chairman of the board, the managing
director or the president shall have power to call a special meeting of
shareholders at any time.
10.03 Place of Meetings - Meetings of shareholders shall be held at the
registered office of the Corporation or elsewhere in the municipality in which
the registered office is situate or, if the board shall so determine, at some
other place in Canada or, if all the shareholders entitled to vote at the
meeting so agree, at some place outside Canada.
10.04 Notice of Meetings - Notice of the time and place of each meeting of
shareholders shall be given in the manner provided in section 12.01 not less
than 21 nor more than 50 days before the date of the meeting to each director,
to the auditor and to each shareholder who at the close of business on the
record date for notice is entered in the securities register as the holder of
one or more shares carrying the right to vote at the meeting. Notice of a
meeting of shareholders called for any purpose other than consideration of the
financial statements and auditor's report, election of directors and
reappointment of the incumbent auditor shall state the nature of such business
in sufficient detail to permit the shareholder to form a reasoned judgment
thereon and shall state the text of any special resolution to be submitted to
the meeting. A shareholder and any other person entitled to attend a meeting of
shareholders may in any manner waive notice of or otherwise consent to a meeting
of shareholders.
10.05 List of Shareholders Entitled to Notice - For every meeting of
shareholders, the Corporation shall prepare a list of shareholders entitled to
receive notice of the meeting, arranged in alphabetical order and showing the
number of shares entitled to vote at the meeting held by each shareholder. If a
record date for the meeting is fixed pursuant to section 10.06, the shareholders
listed shall be those registered at the close of business on such record date.
If no record date is fixed, the shareholders listed shall be those registered at
the close of business on the day immediately preceding the day on which notice
of the meeting is given, or where no such notice is given, on the day on which
the meeting is held. The list shall be available for examination by any
shareholder during usual business hours at the registered office of the
Corporation or at the place where the securities register is maintained and at
the meeting for which the list was prepared. Where a separate list of
shareholders has not been prepared, the names of persons appearing in the
securities register at the requisite time as the holder of one or more shares
carrying the right to vote at such meeting shall be deemed to be a list of
shareholders.
10.06 Record Date for Notice - The board may fix in advance a date, preceding
the date of any meeting of shareholders by not more than 50 days and not less
than 21 days, as a record date for the determination of the shareholders
entitled to notice of the meeting. If a record date is fixed, unless notice
thereof is waived in writing by every holder of a share of the class or series
affected whose name is set out in the share register at the close of business on
the day the directors fix the record date, notice thereof shall, not less than
seven days before the date so fixed, be given in the manner provided in the Act.
If no record date is so fixed, the record date for the determination of
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the shareholders entitled to notice of the meeting shall be the close of
business on the day immediately preceding the day on which the notice is given
or if no notice is given, the day on which the meeting is held.
10.07 Meetings without Notice - A meeting of shareholders maybe held without
notice at any time and place permitted by the Act:
(a) if all the shareholders entitled to vote thereat are present in
person or represented by proxy or if those not present or represented by
proxy waive notice of or otherwise consent to such meeting being held; and
(b) if the auditors and the directors are present or waive notice of or
otherwise consent to such meeting being held.
At such a meeting any business may be transacted which the Corporation at a
meeting of shareholders may transact. If the meeting is held at a place outside
Canada, shareholders not present or represented by proxy, but who have waived
notice of or otherwise consented to such meeting, shall also be deemed to have
consented to the meeting being held at such place.
10.08 Chairman, Secretary and Scrutineers - The chairman of any meeting of
shareholders shall be the first mentioned of such of the following officers as
have been appointed and who is present at the meeting: president, managing
director, chairman of the board, or a vice-president who is a shareholder. If no
such officer is present within 15 minutes from the time fixed for holding the
meeting, the persons present and entitled to vote shall choose one of their
number to be chairman.
If the secretary of the Corporation is absent, the chairman shall appoint some
person, who need not be a shareholder, to act as secretary of the meeting. If
desired, one or more scrutineers, who need not be shareholders, may be appointed
by a resolution or by the chairman with the consent of the meeting.
10.09 Persons Entitled to be Present - The only persons entitled to be present
at a meeting of shareholders shall be those entitled to vote thereat, the
directors 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.
10.10 Quorum - A quorum for the transaction of business at any meeting of
shareholders shall be the lesser of the number of shareholders or two persons
present in person, each being a shareholder or representative duly authorized in
accordance with the Act entitled to vote thereat or a duly appointed proxy for a
shareholder so entitled (and together holding or representing by proxy not less
than a majority of the outstanding shares of the Corporation entitled to vote at
the meeting). If a quorum is present at the opening of the meeting, the
shareholders present in person or by proxy may proceed with the business of the
meeting even if a quorum is not present throughout the meeting.
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10.11 Right to Vote - Subject to the provisions of the Act as to authorized
representatives of any other body corporate, at any meeting of shareholders in
respect of which the Corporation has prepared the list referred to in section
10.05, every person who is named in such list shall be entitled to vote the
shares shown thereon opposite his name, except:
(a) where the Corporation has fixed a record date in respect of
such meeting pursuant to section 10.06, to the extent that any such person
has transferred any of his shares after such record date and the
transferee either produces properly endorsed share certificates or
otherwise establishes that he owns such shares and demands, on or before
the commencement of the meeting, that his name be included in the list
before the meeting; or
(b) where the Corporation has not fixed a record date in respect of
such meeting pursuant to section 10.06, to the extent that any such person
has transferred any of his shares after the date on which the list
referred to in section 10.05 is prepared and the transferee, either
produces properly endorsed share certificates or otherwise establishes
that he owns such shares and demands, on or before the commencement of the
meeting, that his name be included in the list before the meeting,
in either of which cases the transferee is entitled to vote his shares at the
meeting.
In the absence of a list prepared as aforesaid in respect of a meeting of
shareholders, every person shall be entitled to vote at the meeting whose name
appears in the securities register as the holder of one or more shares carrying
the right to vote at such meeting.
10.12 Proxies - Every shareholder entitled to vote at a meeting of shareholders
may appoint a proxyholder, or one or more alternate proxyholders, who need not
be shareholders, to attend and act at the meeting in the manner and to the
extent authorized and with the authority conferred by the proxy. A proxy shall
be in writing executed by the shareholder or his attorney and shall conform with
the requirements of the Act.
10.13 Time for Deposit of Proxies - The board may specify in a notice calling a
meeting of shareholders a time, preceding the time of such meeting by not more
than 48 hours exclusive of non-business days, before which time proxies to be
used at such meeting must be deposited. A proxy shall be acted upon only if,
prior to the time so specified, it shall have been deposited with the
Corporation or an agent thereof specified in such notice or, if no such time is
specified in such notice, unless it has been received by the secretary of the
Corporation or by the chairman of the meeting or any adjournment thereof prior
to the time of voting.
10.14 Joint Shareholders - If two or more persons hold shares jointly, any one
of them present in person or represented by proxy at a meeting of shareholders
may, in the absence of the other or others, vote the shares; but if two or more
of those persons are present in person or represented by proxy and vote, they
shall vote as one on the shares jointly held by them.
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10.15 Votes to Govern - At any meeting of shareholders 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.
10.16 Show of Hands - Subject to the provisions of the Act, any question at a
meeting of shareholders shall be decided by a show of hands unless a ballot
thereon is required or demanded as hereinafter provided. Upon a show of hands
every person who is present and entitled to vote shall have one vote. Whenever a
vote by show of hands shall have been taken upon a question, unless a ballot
thereon is so required or demanded, a declaration by the chairman of the meeting
that the vote upon the question has been carried or carried by a particular
majority or not carried and an entry to that effect in the minutes of the
meeting shall be prima facie evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against any resolution or other
proceeding in respect of the said question, and the result of the vote so taken
shall be the decision of the shareholders upon the said question.
10.17 Ballots - On any question proposed for consideration at a meeting of
shareholders, and whether or not a show of hands has been taken thereon, any
shareholder or proxyholder entitled to vote at the 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 vote
at the meeting upon the question, to that number of votes provided by the Act or
the articles, and the result of the ballot so taken shall be the decision of the
shareholders upon the said question.
10.18 Adjournment - If a quorum is not present at the opening of a meeting of
shareholders, the shareholders present may adjourn the meeting to a fixed time
and place but may not transact any other business. If a meeting of shareholders
is adjourned for less than 30 days, it shall not be necessary to give notice of
the adjourned meeting, other than by announcement at the earliest meeting that
is adjourned. If a meeting of shareholders is adjourned by one or more
adjournments for an aggregate of 30 days or more, notice of the adjourned
meeting shall be given as for an original meeting.
10.19 Resolution in Writing - A resolution in writing signed by all the
shareholders entitled to vote on that resolution at a meeting of shareholders is
as valid as if it has been passed at a meeting of the shareholders unless a
written statement with respect to the subject matter of the resolution is
submitted by a director or the auditors in accordance with the Act.
10.20 Only One Shareholder - Where the Corporation has only one shareholder or
only one holder of any class or series of shares, the shareholder present in
person or by proxy constitutes a meeting.
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Section Eleven
DIVISIONS AND DEPARTMENTS
-------------------------
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, including without
limitation, character or type of operation, geographical territory, product
manufactured or service rendered, 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.
11.02 Name of Division - 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
under such name, provided that the Corporation shall set out its name in legible
characters in all contracts, invoices, negotiable instruments and orders for
goods or services issued or made by or on behalf of the Corporation.
11.03 Officers of Divisions - From time to time the board or, if authorized by
the board, the chief executive officer, may appoint one or more officers for any
division, prescribe their powers and duties and settle their terms of employment
and remuneration.
The board or, if authorized by the board, the chief executive officer, may
remove at its or his pleasure any officer so appointed, without prejudice to
such officer's rights under any employment contract. Officers of divisions or
their sub-units shall not, as such, be officers of the Corporation.
Section Twelve
NOTICES
-------
12.01 Method of Giving Notice - Any notice (which term includes any
communication or document) to be given (which term includes sent, delivered or
served) pursuant to the Act, the regulations thereunder, the articles, the
by-laws or otherwise to a shareholder, director, officer, auditor or member of a
committee of the board shall be sufficiently given if delivered personally to
the person to whom it is to be given or if delivered to his recorded address or
if mailed to him at his recorded address by prepaid ordinary or air mail or if
sent to him at his recorded address by any means of prepaid transmitted or
recorded communication. A notice so delivered shall be deemed to have been given
when it is delivered personally or to the recorded address as aforesaid; a
notice so mailed shall be deemed to have been given when deposited in a post
office or public letter box; and a notice so sent by any means of transmitted or
recorded communication shall be deemed to have been given when dispatched or
delivered to the appropriate communication company or agency or its
representative for dispatch. The secretary may change or cause to be changed the
recorded address of any shareholder, director, officer, auditor or member of a
committee of the board in accordance with any information believed by him to be
reliable.
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12.02 Notice to Joint Shareholders - If two or more persons are registered as
joint holders of any share, any notice shall be addressed to all of such joint
holders but notice to one of such persons shall be sufficient notice to all of
them.
12.03 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 and the date of the meeting or
other event shall both be excluded.
12.04 Undelivered Notices - If any notice given to a shareholder pursuant to
section 12.01 is returned on three consecutive occasions because he cannot be
found, the Corporation shall not be required to give any further notices to such
shareholder until he informs the Corporation in writing of his new address.
12.05 Omissions and Errors - The accidental omission to give any notice to any
shareholder, 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.
12.06 Persons Entitled by Death or Operation of Law - Every person who, by
operation of law, transfer, death of a shareholder 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 shareholder
from whom he derives his title to such share prior to his name and address being
entered on the securities register (whether such notice was given before or
after the happening of the event upon which he became so entitled) and prior to
his furnishing to the Corporation the proof of authority or evidence of his
entitlement prescribed by the Act.
12.07 Waiver of Notice - Any shareholder (or his duly appointed proxyholder),
director, officer, auditor or member of a committee of the board may at any time
waive the sending of 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 shareholders or of the board which may be given
in any manner.
Section Thirteen
REPEAL
------
13.01 Repeal - By-Law No. 1 and By-law No. 2 of the Corporation are repealed as
of the coming into force of this by-law. 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, or the validity of
any articles (as defined in the Act) or predecessor charter documents of the
Corporation obtained prior 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 if
appointed under the provisions of this by-
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law and all resolutions of the shareholders or the board or a committee of the
board with continuing effect passed under any repealed by-law shall continue to
be good and valid except to the extent inconsistent with this by-law and until
amended or repealed.
Section Fourteen
EFFECTIVE DATE
--------------
14.01 Effective Date - This by-law shall come into force when enacted by the
directors, subject to the Act.
ENACTED by the Board the 14th day of January, 1994.
WITNESS the corporate seal of the Corporation.
By: /s/ David C. Snell By: /s/ Robert R. Cranston
---------------------------- -------------------------------------
David C. Snell - President Robert R. Cranston - Secretary
c/s
CONFIRMED by the shareholders the 14th day of January, 1994.
By: /s/ Robert R. Cranston
-------------------------------------
Robert R. Cranston - Secretary
c/s
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