EXHIBIT 3.10
BY-LAW NO. 1
A by-law relating generally to the transaction
of the business and affairs of
NORTH AMERICAN CONSTRUCTION GROUP INC.
CONTENTS
Part Description
I - Interpretation
II - Business of the Corporation
III - Borrowing and Securities
IV - Directors
V - Committees
VI - Officers
VII - Protection of Directors, Officers and Others
VIII - Shares
IX - Dividends and Rights
X - Meetings of Shareholders
XI - Notices
XII - Documents in Electronic Form
XIII - Effective Date
BE IT ENACTED as a by-law of NORTH AMERICAN CONSTRUCTION GROUP INC.
(hereinafter referred to as the "Corporation") as follows:
PART I
INTERPRETATION
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;
"appoint" includes "elect" and vice versa;
"articles" means the articles of incorporation 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;
"meeting of shareholders" includes an annual meeting of shareholders and a
special meeting of shareholders; "special meeting of shareholders" includes
a meeting of any class or classes of shareholders and a special meeting of
all shareholders entitled to vote at an annual 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, that person's 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, that individual's latest address as recorded in the records of the
Corporation;
"regulations" means the regulations enacted pursuant to the Act, as from time to
time amended;
"signing officer" means, in relation to any instrument, any person authorized to
sign the same on behalf of the Corporation by section 2.03 or by a
resolution passed pursuant thereto;
"unanimous shareholder agreement" means a written agreement among all the
shareholders of the Corporation or among all such shareholders and one or
more persons who are not shareholders, or a written declaration of the
beneficial owner of all of the issued shares of the Corporation, that
restricts, in whole or in part, the powers of the directors to manage the
business and affairs of the Corporation, as from time to time amended;
save as aforesaid, words and expressions defined in the Act have the same
meanings when used herein; and
words importing the singular number include the plural and vice versa; and words
importing persons include individuals, bodies corporate, partnerships,
trusts and unincorporated organizations.
PART II
BUSINESS OF THE CORPORATION
2.01 Corporate Seal. The Corporation may have one or more different
corporate seals which may be adopted or changed from time to time by the board,
on which the name of the Corporation appears in the language or one or more of
the languages set out in the articles.
2.02 Financial Year. The financial year of the Corporation shall end on
such day in each year as the board may from time to time by resolution
determine.
2.03 Execution of Instruments. Deeds, transfers, assignments, contracts,
obligations, certificates and other instruments may be signed on behalf of the
Corporation by any one of the directors or officers. In addition, the board may
from time to time direct the manner in which and the person or persons by whom
any particular instrument or class of instruments may or shall be signed. Any
signing officer may affix the corporate seal (if any) to any instrument. Any
signing officer may certify a copy of any instrument, resolution, by-law or
other document of the Corporation to be a true copy thereof.
2.04 Execution in Counterpart. Any articles, notice, resolution,
requisition, statement or other document required or permitted to be executed in
several documents of like form each of which is executed by all persons required
or permitted, as the case may be, to do so, shall be deemed to constitute one
document and to bear date as of the date of execution thereof by the last
person.
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 proxies, certificates
or other evidence shall be in favour of such person or persons as may be
determined by the officers signing or arranging for them. 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. 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, it would 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 of inspecting any account, record or document of the Corporation
except as conferred by the Act or authorized by the board or by resolution
passed at a meeting of shareholders.
2.08 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.
2.09 Name of Division. Subject to compliance with law, 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 corporate 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.
2.10 Officers of Division. 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 that individual's 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.
PART III
BORROWING AND SECURITIES
3.01 Borrowing Power. Without limiting the borrowing powers of the
Corporation as set forth in the Act, but subject to the articles and any
unanimous shareholder agreement, the board may from time to time on behalf of
the Corporation, without authorization of the shareholders:
(a) borrow money on the credit of the Corporation,
(b) issue, reissue, sell, pledge or hypothecate bonds, debentures, notes
or other evidences of indebtedness or guarantee of the Corporation,
whether secured or unsecured,
(c) give a guarantee on behalf of the Corporation to secure performance of
any present or future indebtedness, liability or obligation of any
person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest
in all or any currently owned or subsequently acquired real or
persona], movable or immovable, property of the Corporation including
book debts, rights, powers, franchises and undertakings, to secure any
such bonds, debentures, notes or other evidences of indebtedness or
guarantee or any other present or future indebtedness, liability or
obligation 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 delegate to a committee of
the board, a director or an officer of the Corporation or any other person 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 may
determine at the tune of each such delegation.
PART IV
DIRECTORS
4.01 Number of Directors and Quorum. Until changed in accordance with the
Act, the board shall consist of not less than the minimum and not more than the
maximum number of directors provided for in the articles. The directors or the
shareholders may by resolution from time to time determine the number of
directors to be elected at an annual meeting, within such minimum and maximum.
Subject to section 4.08, the quorum for the transaction of business at any
meeting of the board shall consist of a majority of the minimum number of
directors provided for in the articles or such greater number of directors as
the board may from time to time determine.
4.02 Qualification. Unless otherwise provided by the Act, at least
twenty-five percent of the directors shall be resident Canadians. However, if at
any time there are less than four directors, at least one director must be a
resident Canadian. No person shall be qualified for election as a director if
such person: (a) is less than 18 years of age; (b) is of unsound mind and has)
been so found by a court in Canada or elsewhere; (c) is not an individual; or(d)
has the status of a bankrupt. A director need not be a shareholder.
4.03 Election and Term. The election of directors shall take place at the
first meeting of shareholders and at each annual meeting of shareholders and 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. If an
election of directors is not held at the proper time, the incumbent directors
shall continue in office until their successors are elected. Where the
shareholders adopt an amendment to the articles to increase the number or
minimum number of directors, the shareholders may, at the meeting at which they
adopt the amendment, elect the additional number of directors thereby
authorized,
4.04 Removal of Directors. Subject to the provisions of the Act, the
shareholders may by resolution passed at a meeting specially called for such
purpose 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 board.
4.05 Vacation of Office. A director ceases to hold office when such
director dies, is removed from office by the shareholders acting pursuant to the
Act, or ceases to be qualified for election as a director, or earlier if such
director shall have submitted a written resignation to the Corporation; in which
last-mentioned event such director shall cease to hold office at the later of
(i) the time when such written resignation is sent or
delivered to the Corporation and (ii) the time, if any, specified in such
written resignation as the effective time of such resignation.
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 minimum
or maximum number of directors or from a failure of the shareholders to elect
the 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 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 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, or supervise the management of, the business and affairs
of the Corporation. Subject to sections 4.08 and 4.09, the powers of the board
may be exercised by a meeting at which the 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 a meeting.
4.08 Canadian Directors Present at Meeting. Unless otherwise provided by
the Act, the board shall not transact business at a meeting, other than filling
a vacancy in the board, unless at least twenty-five percent of the directors
present at the meeting are resident Canadians or, if there are less than four
directors, at least one of the directors present is a resident Canadian, except
where:
(a) a resident Canadian director who is unable to be present approves in
writing or by telephonic, electronic or other communications
facilities, the business transacted at the meeting; and
(b) the required number of resident Canadians would have been present had
that director been present at the meeting,
4.09 Meeting by Communications Facility. If all the directors of the
Corporation consent, a director may, in accordance with the regulations,
participate in a meeting of the board, or of a committee of the board, by means
of a telephonic, electronic or other communications facility that permits all
participants to communicate adequately with each other during the meeting. 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.
4.10 Place of Meetings. Meetings of the board may be held at any place in
or outside Canada.
4.11 Calling of Meetings. Meetings of the board shall be held from time to
time at such time and at such place as the board, the chairman of the board, the
managing director, the president, the vice-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 11.01 to each director
not less than 48 hours before the time when the meeting is to be held. A notice
of a meeting of directors need not specify the purpose of or the business to be
transacted at the meeting except where the Act requires such purpose or business
to be specified, including, if required by the Act, 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, or
appoint additional directors;
(c) issue securities;
(d) issue shares of a series;
(e) declare dividends;
(f) purchase, redeem or otherwise acquire shares issued by the
Corporation;
(g) pay a commission for the sale of shares;
(h) approve a management proxy circular;
(i) approve a take-over bid circular or directors' circular;
(j) approve any annual financial statements; or
(k) adopt, amend or repeal by-laws.
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 meeting: chairman of the board, managing
director, president, or a vice-president. If no such officer is present, the
directors present shall choose 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 Declaration 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 material transaction, whether made or
proposed, with the Corporation, shall disclose the nature and extent of his or
her 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 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 shareholders,
and a director interested iii 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 travelling and other expenses properly incurred by them in
attending meetings of the board or any committee thereof. Nothing herein
contained shall preclude any director from serving the Corporation in any other
capacity and receiving remuneration therefor.
PART V
COMMITTEES
5.01 Committee of Board. The board may appoint one or more committees of
the board, however designated, and delegate to any such committee any of the
powers of the board except those which, under the Act, a committee of the board
has no authority to exercise.
5.02 Transaction of Business. The powers of a committee of the board may be
exercised by a meeting at which a quorum is present or by resolution in writing
signed by all 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 of Canada.
5.03 Advisory Bodies. The board may from time to time appoint advisory
bodies.
5.04 Procedure. Unless otherwise determined by the board, each committee
and advisory body shall have power to fix its quorum at not less than a majority
of its members, to elect its chairman and to regulate its procedure.
PART VI
OFFICERS
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. If appointed, the board may assign to the chairman any of
the powers and duties that are by any provisions of this by-law assigned to the
managing director or to the president, and the chairman 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, the
chairman's duties shall be performed and the chairman's powers exercised by the
managing director, if any, or by the president.
6.03 Managing Director. The board may from time to time also appoint a
managing director who shall be a resident Canadian and a director. if appointed,
the managing director shall be the chief executive officer and, subject to the
authority of the board, shall have general supervision of the business and
affairs of the Corporation; and the managing director 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 the president 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.
6.06 Secretary. The secretary, as and when requested to do so, 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; the secretary 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; the secretary shall
be the custodian of the stamp or mechanical device generally used for affixing
the corporate seal of the Corporation (if any) 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 the
secretary 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;
the treasurer shall render to the board whenever required an account of all
transactions undertaken and of the financial position of the Corporation; and
the treasurer 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 such officer's successor is appointed, or until such officer's
earlier resignation.
6.11 Terms of Employment and Remuneration. The terms of employment and the
remuneration of an officer appointed by the board shall be settled by it from
time to time.
6.12 Declaration of Interest. An officer shall disclose his or her 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 powers to subdelegate) 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.
PART VII
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability. 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 such individual's part, or
for any other loss, damage or misfortune whatever which shall happen in the
execution of the duties of such individual's office or in relation thereto;
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 another individual who acts or acted at the Corporation's request as a
director or officer, or an individual acting in a similar capacity, of another
entity, against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by the individual in
respect of any civil, criminal, administrative, investigative or other action or
proceeding in which the individual is involved because of such individual's
association with the Corporation or other entity, if the individual:
(a) acted honestly and in good faith with a view to the best interests- of
the Corporation, or, as the case may be, to the best interests of the
other entity for which the individual acted as director or officer or
in a similar capacity at the request of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual's conduct was lawful.
The Corporation may advance moneys to an individual entitled to indemnification
pursuant to this section for the costs, charges and expenses of such
proceedings. The Corporation shall also indemnify such person in such other
circumstances as the Act requires. Nothing in this by-law shall limit the right
of any person entitled to indemnity apart from the provisions of this by-law.
7.03 Insurance. The Corporation may purchase and maintain insurance for the
benefit of any individual referred to in section 7.02 against any liability
incurred by the individual:
(a) in the individual's-capacity as a director or officer of the
Corporation; or
(b) in the individual's capacity as a director or officer, or similar
capacity, of another entity, if the individual acts or acted in that
capacity at the request of the Corporation.
PART VIII
SHARES
8.01 Allotment. Subject to the provisions of the Act, the articles and any
unanimous shareholder agreement, the board may from time to time allot or grant
options to purchase 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 provided by the Act
8.02 Commissions. The board may from time to time authorize the Corporation
to pay a commission to any person in consideration of such person purchasing or
agreeing to purchase shares of the Corporation, whether from the Corporation or
from any other person, or procuring or agreeing to procure purchasers for any
such shares.
8.03 Registration of Transfers. 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 an endorsement,
which complies with the Act, made thereon or delivered therewith duly executed
by an appropriate person as provided by the Act, together with such reasonable
assurance that the endorsement is genuine and effective 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 one or more agents to maintain, in respect of each class of securities
of the Corporation issued by it in registered form, a central securities
register and one or more branch securities registers. Such a person may be
designated as transfer agent or registrar according to such person's functions
and one person may be designated both registrar and transfer agent. The board
may at any time terminate 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 may treat the person in whose name a share is registered in the
securities register as the person exclusively entitled to vote, to receive
notices, to receive any dividend or other payments in respect of the share and
otherwise to exercise all the rights and powers of an owner.
8.07 Share Certificates. Every bolder of one or more shares of the
Corporation shall be entitled, at the shareholder's option, to a share
certificate, or to a non-transferable
written certificate of acknowledgment of such shareholder's right to obtain a
share certificate, stating the number and class or series of shares held by such
shareholder as shown on the securities register. Such certificates shall be in
such form as the board shall from time to time approve. Any such certificate
shall be signed in accordance with section 2.03 and need not be under corporate
seal; provided that, unless the board otherwise determines, certificates 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
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 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 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 such person's discretion direct the issue
of a new share certificate or certificate of acknowledgment in lieu of and upon
cancellation of a certificate that has been mutilated or in substitution for a
certificate claimed to have been lost, destroyed or wrongfully taken on payment
of such fee, not exceeding the amount prescribed by regulation for the issuing
of a share certificate in respect of a transfer, and on such terms as to
indemnity, reimbursement of expenses and evidence of loss and of title as the
board may from time to time prescribe, whether generally or in any particular
case.
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 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.
PART IX
DIVIDENDS AND RIGHTS
9.01 Dividends. Subject to the provisions of the Act and the articles, the
board may from time to time declare dividends payable to the shareholders
according to their respective rights and interest in the Corporation. Dividends
may be paid in money or property or by issuing fully paid shares of the
Corporation.
9.02 Dividend Cheques. A dividend payable in money 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 or her 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 60 days, or such other period as may be
prescribed by regulation, the date for the payment of any dividend or the date
for the issue of any warrant or other evidence of the right to subscribe for
securities of the Corporation, as a record date for the determination of the
persons entitled to receive payment of such dividend or to exercise the right to
subscribe for such securities, and notice of any such record date shall be given
not less than 7 days before such record date, or such other period as may be
prescribed by regulation, in the manner provided by the Act. If no record date
is so fixed, the record date for the determination of the persons entitled to
receive payment of any dividend or to exercise the right to subscribe for
securities of the Corporation shall be at the close of business on the day on
which the resolution relating to such dividend or right to subscribe is passed
by the 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.
PART X
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
may from time to time determine, for the purpose of considering the financial
statements and reports required by the Act to be placed before the annual
meeting, electing directors, appointing an auditor and transacting 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 province in which the
registered office is situate or, if the board shall so determine, at some other
place in Canada or, at some place outside Canada if such place is specified in
the articles or all the shareholders entitled to vote at the meeting so agree.
10.04 Participation by Electronic Means. If the Corporation chooses to make
available a telephonic, electronic or other communication facility that permits
all participants to communicate adequately with each other during a meeting of
shareholders, any person entitled to attend such meeting may participate in the
meeting by means of such telephonic, electronic or other communication facility
in the manner provided by the Act and the regulations. A person participating in
a meeting by such means is deemed to be present at the meeting. Notwithstanding
any other provision of this by-law, any person participating in a meeting of
shareholders pursuant this section who is entitled to vote at that meeting may
vote, in accordance with the Act and the regulations, by means of any
telephonic, electronic or other communication facility that the Corporation has
made available for that purpose.
10.05 Meeting Held by Electronic Means. Notwithstanding section 10.03, if
the directors or shareholders of the Corporation call a meeting of shareholders
pursuant to the Act, those directors or shareholders, as the case may be, may
determine that the meeting shall be held, in accordance with the Act and the
regulations, entirely by means of a telephonic, electronic or other
communication facility that permits all participants to communicate adequately
with each other during the meeting. Notwithstanding any other provision of this
by-law, any person participating in a meeting of the shareholders pursuant this
section who is entitled to vote at that meeting may vote, in accordance with the
Act and the regulations, by means of any telephonic, electronic or other
communication facility that the Corporation has made available for that purpose.
10.06 Notice of Meetings. Notice of the time and place of each meeting of
shareholders shall be given in the manner provided in section 11.01 not more
than 60 days nor less than 21 days before the date of the meeting, or within
such other period as may be prescribed by regulation, 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.
10.07 List of Shareholders Entitled to Notice. For every meeting of
shareholders, the Corporation shall prepare within the time specified by the Act
a list of shareholders entitled to receive notice of the meeting, arranged in
alphabetical order and showing the number of shares held by each shareholder. If
a record date for notice of the meeting is fixed pursuant to section 10.09, the
shareholders listed shall be those registered at the close of business on such
record date. If no record date for notice is so fixed, the
shareholders listed shall be those registered (a) at the close of business on
the day immediately preceding the day on which notice of the meeting is given,
or (b) on the day on which the meeting is held where no such notice is given.
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 central securities register is maintained and at the meeting for which the
list was prepared.
10.08 List of Shareholders Entitled to Vote. For every meeting of
shareholders, the Corporation shall prepare within the time specified by the Act
a list of shareholders entitled to vote at the meeting, arranged in alphabetical
order and showing the number of shares which each such shareholder is entitled
to vote at the meeting. If a record date for voting is fixed pursuant to section
10.10, the shareholders listed shall be those registered at the close of
business on such record date. If no record date for voting is so fixed, the
shareholders listed shall be those registered at the close of business on the
record date for notice fixed pursuant to section 10.09. If no record date for
voting is fixed pursuant to section 10.10 and no record date for notice is fixed
pursuant to section 10.09, the shareholders listed shall be those registered (a)
at the close of -business on the day immediately preceding the day on which
notice of the meeting is given, or (b) on the day on which the meeting is held
where no such notice is given. 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 central securities register is maintained
and at the meeting for which the list was prepared.
10.09 Record Date for Notice. The board may fix in advance a date, preceding
the date of any meeting of shareholders by not more than 60 days and not less
than 21 days, or such other period as may be prescribed by regulation, as a
record date for the determination of the shareholders entitled to notice of the
meeting, and notice of any such record date shall be given not less than 7 days
before such record date, or such other period as may be prescribed by
regulation, by newspaper advertisement in the manner provided in the ct If no
record date for notice is so fixed, the record date for the determination of the
shareholders entitled to notice of the meeting shall be (a) at the close of
business on the day immediately preceding the day on which notice of the meeting
is given, or (b) on the day on which the meeting is held where no such notice is
given.
10.10 Record Date for Voting. The board may fix in advance a date, preceding
the date of any meeting of shareholders by not more than 60 days and not less
than 21 days, or such other period as may be prescribed by regulation, as a
record date for the determination of the shareholders entitled to vote at the
meeting, and notice of any such record date shall be given not less than 7 days
before such record date, or such other period as may be prescribed by
regulation, by newspaper advertisement in the manner provided in the Act. If no
record date for voting is so fixed, the record date for the determination of the
shareholders entitled to vote at the meeting shall be at the close of business
on the record date for notice fixed pursuant to section 10.09. If no record date
for voting is fixed pursuant to this section and no record date for notice is
fixed pursuant to section 10.09, the record date for the determination of the
shareholders entitled to vote at the meeting shall be (a) at the close of
business on the day immediately preceding the
day on which notice of the meeting is given, or (b) on the day on which the
meeting is held where no such notice is given.
10.11 Meetings without Notice. A meeting of shareholders may be held at any
time and place permitted by the Act or the articles or the by-laws without
notice or on shorter notice than that provided for herein, and proceedings
thereat shall not be invalidated (a) if all the shareholders entitled to vote
thereat are present in person or represented or if those not so present or
represented have received notice, or before or after the meeting or the time
prescribed for the notice thereof, in writing waive notice of or accept short
notice of such meeting, and (b) if the auditors and the directors are present or
if those not present have received notice or, before or after the meeting or the
time prescribed for notice thereof, in writing waive notice of or accept short
notice of such meeting. If the meeting is held at a place outside Canada,
shareholders not present or represented, but who have waived notice of or
accepted short notice of such meeting, shall also be deemed to have consented to
the meeting being held at such place.
10.12 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 who is present at the meeting: president, managing director,
chairman of the board, or a vice-president who is a director. 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.
10.13 Persons Entitled to Attend. The only persons entitled to attend a
meeting of shareholders shall be those entitled to vote thereat, the chairman of
the board (if any), the president, the directors and auditor of the Corporation
and others who, although not entitled to vote, are entitled or required under
any provision of the Act or the articles or by-laws to attend 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.
10.14 Quorum. Subject to the provisions of the Act, a quorum for the
transaction of business at any meeting of shareholders shall be I person present
in person being a shareholder entitled to vote thereat or a duly appointed
representative or proxyholder for an absent shareholder so entitled, and holding
or representing in the aggregate 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 any meeting of shareholders, the shareholders present
or represented may proceed with the business of the meeting notwithstanding that
a quorum is not present throughout the meeting. If a quorum is not present at
the opening of any meeting of shareholders, the shareholders present or
represented may adjourn the meeting to a fixed time and place but may not
transact any other business.
10.15 Right to Vote. Subject to the provisions of the Act as to authorized
representatives of any other body corporate or association and restrictions on
intermediary voting, for any meeting of shareholders every person who is named
in the list of shareholders entitled to vote prepared for purposes of such
meeting shall be entitled to vote the shares shown opposite such person's name.
For any meeting of shareholders where a list of shareholders entitled to vote
has not been prepared for purposes of such meeting, the names of the persons
appearing in the securities register at the close of business on the record date
for voting as the holders of one or more shares carrying the right to vote at
such meeting, shall be deemed to be the list of shareholders entitled to vote
for purposes of such meeting.
10.16 Proxyholders and Representatives. 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 such
shareholder's attorney and shall conform with the requirements of the Act. Every
such shareholder which is a body corporate or association may by resolution of
its directors or governing body authorize an individual who need not be a
shareholder to represent it at a meeting of shareholders and such individual may
exercise on the shareholder's behalf all the powers it could exercise if it were
an individual shareholder. The authority of such an individual shall be
established by depositing with the Corporation a certified copy of such
resolution, or in such other manner as may be satisfactory to the secretary of
the Corporation or the chairman of the meeting.
10.17 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, if 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.
10.18 Joint Shareholders. If two or more persons hold shares jointly, any
one of them present in person or represented 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 and vote, they shall vote as
one the shares jointly held by them.
10.19 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
a majority of the votes cast on the question. In case of an equality of votes
either upon a show of hands, upon a ballot or upon results of electronic voting,
the chairman of the meeting shall be entitled to a casting vote.
10.20 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.
10.21 Ballots. On any question proposed for consideration at a meeting of
shareholders, and whether or not a show of hands has been taken thereon, the
chairman may require a ballot or any person present and entitled to vote on such
question at the meeting may 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 or she 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.
10.22 Electronic Voting. If the Corporation chooses to make available a
telephonic, electronic or other communication facility, in accordance with the
Act and the regulations, that permits shareholders to vote by means of such
facility then, notwithstanding any other provision of this by-law, any vote may
be held, in accordance with the Act and the regulations, entirely by means of
such facility.
10.23 Adjournment. 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.
10.24 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 had been passed at a meeting of the shareholders unless a
written statement with respect to the subject matter of the resolution is
submitted by a director or the auditors in accordance with the Act
10.25 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.
PART XI
NOTICES
11.01 Method of Giving Notices. 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, 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 such person's recorded address or
if mailed to such person at such person's recorded address by prepaid ordinary
or air mail or if sent to such person at his or her recorded address by
facsimile or if provided in the form of an electronic document in accordance
with section 12.01. 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; a notice so sent by facsimile shall be deemed to
have been given when transmitted and a notice provided in the form of an
electronic document shall be deemed to have been given at the time determined in
accordance with section 12.01. 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 the
secretary to be reliable.
11.02 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.
11.03 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 shall be excluded and the date of
the meeting or other event shall be included.
11.04 Undelivered Notices. If any notice given to a shareholder pursuant to
section 11.01 is returned on two consecutive occasions because such shareholder
cannot be found, the Corporation shall not be required to give any further
notices to such shareholder until such shareholder informs the Corporation in
writing of his or her new address.
11.05 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 airy meeting held pursuant to such notice or otherwise founded thereon.
11.06 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 such person derives title
to such share prior to such person's name and address being entered on the
securities register (whether such notice was given before or after the happening
of the event upon which such person became so entitled) and prior to such person
furnishing to the Corporation the proof of authority or evidence of entitlement
prescribed by the Act
11.07 Waiver of Notice. Any shareholder, proxyholder, other person entitled
to attend a meeting of shareholders, director, officer, auditor or member of a
committee of the board may at any time waive any notice, or waive or abridge the
time for any notice, required to be given to such person under any provision of
the Act, the regulations thereunder, the articles, the by-laws or otherwise and
such waiver or abridgement, whether given before or after the meeting or other
event of which notice is required to be given, 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 or of a committee of the board which may be given
in any manner.
PART XII
DOCUMENTS IN ELECTRONIC FORM
12.01 Documents in Electronic Form. Subject to any additional conditions set
out in section 12.02 below, a requirement under the Act, the regulations or
these by-laws to provide a person with a notice, document or other information
may be satisfied by the provision of an electronic document, provided that:
(a) the addressee has consented, in the manner prescribed by regulation,
if any, and has designated an information system for the receipt of
electronic documents;
(b) the electronic document is provided to the designated information
system, unless otherwise prescribed by regulation; and
(c) any other requirements of the regulations have been complied with.
An addressee may revoke the consent referred to in subsection 12.01 (a) above.
Nothing in this Part XII shall require a person to create or otherwise provide
an electronic document. Except where a notice, document or other information
must be sent to a specific place (such as a registered address), an electronic
document need not be sent to the designated information system if (i) the
document is posted on or made available through a generally accessible
electronic source, such as a web site; and (ii) the addressee is provided with
notice in writing of the availability and location of that electronic document.
An electronic document shall be considered to have been received when it enters
the information system designated by the addressee or if the document is posted
on or made available through a generally accessible electronic source, when it
is accessed by the addressee.
12.02 Where Documents to be Created in Writing. Where the Act or regulations
expressly require that a notice, document or other information be created in
writing, such
requirement shall be satisfied by the creation of an electronic document
provided that, in addition to the conditions set out in section 12.01 above:
(a) the information in the electronic document is accessible so as to be
usable for subsequent reference; and
(b) any other requirements of the regulations have been complied with.
12.03 Where Documents to be provided in Writing. Where the Act or
regulations expressly require that a notice, document or other information be
provided in writing, such requirement shall be satisfied by the provision of an
electronic document provided that, in addition to the conditions set out in
section 12.01 above:
(a) the information in the electronic document is accessible by the
addressee and capable of being retained by the addressee, so as to be
usable for subsequent reference; and
(b) any other requirements of the regulations have been complied with.
PART XIII
EFFECTIVE DATE
13.01 Effective Date. This by-law shall be effective when made by the board.
THE FOREGOING BY-LAW is hereby consented to by all the directors of
the Corporation pursuant to the Act, as evidenced by their signatures hereto.
DATED as of the 26/th/ day of November, 2003.
/s/ Gordon Parchewsky /s/ John Hawkins
- -------------------------------------- --------------------------------------
Gordon Parchewsky John Hawkins
THE FOREGOING BY-LAW is hereby confirmed by the sole shareholder of
the Corporation pursuant to the Act, as evidenced by such shareholder's
signature hereto.
DATED as of the 26/th/ day of November, 2003.
NORTH AMERICAN ENERGY
PARTNERS INC.
By:/s/ R. Kent Wallace
-----------------------------------
R. Kent Wallace
Secretary