EXHIBIT 3.12
BY-LAW NO. 1
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A By-law relating generally
to the transaction of the
business and affairs of
NORTH AMERICAN CONSTRUCTION LTD.
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COOK, DUKE, COX, TOD & KENNY
CBCA
BY-LAW NUMBER ONE
OF
NORTH AMERICAN CONSTRUCTION LTD.
A By-law relating generally to the transaction of the business and affairs of
NORTH AMERICAN CONSTRUCTION LTD.
SECTION I - INTERPRETATION
1.01 Definitions. In these and other By-laws of the Corporation, unless the
context otherwise requires:
(a) "Act" means the Canada Business Corporations Act and any statute that
may be substituted therefor, as amended from time to time;
(b) "appoint" includes "elect" and vice versa;
(c) "Board" means the Board of directors of the Corporation;
(d) "By-laws" means this By-law and all other By-laws of the Corporation
from time to time in force and effect;
(e) "Corporation" means the Corporation which has adopted these By-laws
and to which the same apply.
1.02 Interpretation. Words and expressions defined in the Act have the same
meanings when used in the By-laws. Words importing the singular number include
the plural and vice versa and words importing gender include masculine, feminine
and neuter genders as required by the context. Without limiting the generality
of the foregoing, a reference to the directors shall include a sole director
when the Corporation has only a sole director.
1.03 Conflict with Act. The By-laws are subject to the provisions of the
Act, unless the Act otherwise specifically provides.
1.04 Conflict with Documents. The By-laws are subject to the provisions of
the articles and any unanimous shareholders agreement and in the event of
conflict between the provisions of any By-laws and the provisions of the
articles or a unanimous shareholders agreement, the provisions of the articles
or the unanimous shareholders agreement shall prevail over the By-laws.
BY-LAW NUMBER ONE signed on the 3rd day of August
A.D. 1988 for identification.
Per: /s/ Roger Gouin
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ROGER GOUIN
President
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1.05 Headings. The headings and indices used in the By-laws are inserted
for convenience of reference only and do not affect the interpretation of the
By-laws or any part thereof.
SECTION TWO - DIRECTORS AND BOARD
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2.01 Calling of Meeting. The Secretary, upon request of a director, shall
summon a meeting of the Board.
2.02 Notice of Meetings. Notice of the time and place of Board meetings
shall be given to each director not less than seventy two (72) hours before the
time of the meeting. A notice of a Board meeting need not specify the purpose or
the business to be transacted at the meeting, except where the Act requires
otherwise.
2.03 Telecommunication. A director may participate in a meeting of the
Board or of a committee of directors by means of telephone or other
communication facilities that permit all directors participating in the meeting
to hear each other and a director participating in a meeting by those means is
deemed to be present at the meeting.
2.04 Casting Vote. At all Board meetings, every question shall be decided
by a majority of votes cast on each question. In the case of an equality of
votes, the chairman of the meeting shall not be entitled to a second or casting
vote in addition to the vote or votes to which he may be entitled as a director.
2.05 Committees of Directors. Unless otherwise ordered by the Board each
committee of directors 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.
2.06 Corporate Seal. The Board may adopt and change a corporate seal which
shall contain the name of the Corporation and the Board may cause to be created
as many duplicates thereof as the Board shall determine.
2.07 Execution of Instruments. The Board from time to time may direct the
manner in which, and the person or persons by whom, any particular instrument or
class of instruments may or shall be signed and delivered. In the absence of a
directors' resolution, any particular instrument or class of instruments may be
signed and delivered on behalf of the Corporation by any person holding the
office of Chairman of the Board, President, Vice-President, Secretary, Treasurer
or Managing director or any
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other office created by By-law or by the directors, or if the Corporation is
authorized to have and has only one director by any such person acting alone.
Any signing officer may affix the corporate seal to any instrument requiring the
same.
2.08 Borrowing. The Board without authorization of the shareholders may:
(a) borrow money upon the credit of the Corporation;
(b) issue, reissue, sell or pledge debt obligations of the Corporation;
(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 all or any property of the Corporation, owned or subsequently
acquired, to secure any obligation of the Corporation.
SECTION THREE - OFFICERS
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3.01 Appointment. The Board from time to time may appoint a Chairman of the
Board, a President, one or more Vice-Presidents (to which title may be added
words indicating seniority or function), a Secretary, a Treasurer, a Managing
director, and such other officers as the Board may determine, including one or
more assistants to any of the officers so appointed. Subject to those powers and
authority which by law may only be exercised by the directors, the officers of
the Corporation may exercise respectively such powers and authority and shall
perform such duties, in addition to those specified in the By-laws, as may from
time to time be prescribed by the Board. Except for the Chairman of the Board,
if appointed, and the Managing director, if appointed, an officer may, but need
not, be a director. One person may hold more than one office of the Corporation
except that the offices of President and Secretary must be held by different
persons unless the Board consists of a sole director. The Board from time to
time may also appoint other agents, attorneys, officers and employees of the
Corporation within or without Canada, who may be given such titles and who may
exercise such powers and authority (including the power of subdelegation) and
shall perform such duties of management or otherwise, as the Board from time to
time may prescribe. In case of the absence of any officer or employee of the
Corporation or for any other reason that the Board may deem sufficient, the
Board may delegate for the time being the powers and authority of such officer
or employee to any other officer or employee or to any director of the
Corporation.
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3.02 Chairman of the Board. The Chairman of the Board, if appointed, shall
preside at all meetings of the Board and may exercise such other powers and
authority and shall perform the duties which the Board may prescribe from time
to time.
3.03 President. The President shall be the chief operating officer of the
Corporation and, subject to the authority of the Board shall have general
supervision of the business and affairs of the Corporation and shall have such
other powers and duties as the Board may specify. In the event no Chairman of
the Board has been appointed or during the absence of the Chairman of the Board
or inability or failure of the Chairman of the Board to act, the President also
shall have the powers and duties of the office of Chairman of the Board.
3.04 Vice-President. The Vice-President, or if more than one Vice-President
has been appointed, the Vice-Presidents, may exercise such powers and authority
and shall perform such duties as may be prescribed from time to time by the
Board. During the absence of the President or the inability or failure of the
President to act, the Vice-President, or if more than one Vice-President has
been appointed, the Vice-President first appointed, also shall have the powers
and duties of the office of President.
3.05 Managing director. The Managing director, if appointed, shall manage
the operations of the Corporation generally, and may exercise such other powers
and authority and shall perform such other duties as may be prescribed from time
to time by the Board.
3.06 Secretary. The Secretary, if appointed, shall attend and be the
secretary to 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 at such meetings. 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 corporate seal, if any, of the Corporation and shall have
charge of all books, papers, reports, certificates, records, documents,
registers and instruments belonging to the Corporation. The Secretary shall be
responsible for registering or filing all reports, certificates and all other
documents required by law to be registered or filed by the Corporation. The
Secretary shall certify any documents of the Corporation except when some other
officer or agent has been appointed for any such purpose and may exercise such
other powers and authority and shall perform such other duties as may be
prescribed from time to time by the Board or the President.
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3.07 Treasurer. The Treasurer, if appointed, shall be responsible for the
keeping of proper accounting records in compliance with the Act and shall be
responsible for the deposit of monies and other valuable effects of the
Corporation in the name and to the credit of the Corporation in such banks or
other depositories as the Board may designate from time to time and he shall be
responsible for the disbursement of the funds of the Corporation. The Treasurer
shall render to the President and the Board whenever so directed an account of
all financial transactions and of the financial position of the Corporation. The
Treasurer shall be subject to the control of the President and may exercise such
other powers and authority and shall perform such other duties as may be
prescribed from time to time by the Board or by the President. Whenever the
Secretary is also the Treasurer the office may be designated
Secretary-treasurer.
3.08 Other Officers. The powers and duties of all other officers shall be
such as are prescribed by the Board. 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 otherwise directs.
3.09 Variation of Powers and Duties. The Board from time to time may vary,
add to or limit the powers, authority and duties of any officer.
3.10 Removal and Discharge. The Board may remove any officer of the
Corporation, with or without cause, at any time, unless the resolution or
contract providing for the appointment of such officer stipulates otherwise.
3.11 Term of Office. Each officer appointed by the Board shall hold office
until a successor is appointed, or until his earlier resignation or removal by
the Board.
SECTION FOUR - SHAREHOLDERS AND SHARES
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4.01 Persons Entitled to be Present. The only persons entitled to be
present at a meeting of the shareholders shall be those persons entitled to vote
thereat, the directors and auditor (if any) of the Corporation and others who,
although not entitled to vote, are entitled or required to be present at the
meeting, under any provision of the Act or the articles or By-laws. Any other
persons may be admitted only on the invitation of the chairman of the meeting or
with the consent of the meeting.
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4.02 Quorum. A quorum for the transaction of business at any meeting of
shareholders shall be two (2) persons present in person, each being a
shareholder (other than a joint shareholder) entitled to vote thereat or a duly
appointed proxy holder or representative for a shareholder so entitled to vote
and holding in the aggregate ten (10%) per cent of the shares entitled to vote
at the meeting.
4.03 Chairman. The chairman of any meeting of the shareholders shall be the
first mentioned of such of the following officers as has been appointed and who
is present at the meeting:
(a) The Chairman of the Board;
(b) The President;
(c) Any Vice-President (and where more than one Vice-President is present
at the meeting, then the priority to act as chairman as between them
shall be in order of their appointment to the office of
Vice-President).
If no such officer is present within fifteen minutes of the time fixed for the
holding of the meeting of the shareholders, the persons present and entitled to
vote shall choose one of their number then present to be chairman of that
meeting.
4.04 Secretary of Meeting. If the Secretary of the Corporation is absent,
the chairman of a meeting of shareholders shall appoint some person, who need
not be a shareholder, to act as secretary of the meeting.
4.05 Chairman's Declaration. At any meeting of shareholders, unless a
ballot is demanded, a declaration by the chairman of the meeting that a
resolution has been carried or carried unanimously or by a particular majority
or lost or not carried by a particular majority shall be conclusive evidence of
the fact without any or further proof of the number or proportion of votes
recorded in favour of or against the motion.
4.06 Voting by Ballot. If a ballot is demanded by a shareholder or proxy
holder entitled to vote at a shareholder's meeting and the demand is not
withdrawn, the ballot upon the motion shall be taken in such manner as the
chairman of the meeting shall direct. Upon a ballot each shareholder who is
present in person or represented by proxy 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. The declaration by the
chairman of the meeting that the vote upon the question has been carried, or
carried
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unanimously or by a particular majority, or lost or not carried by a particular
majority and an entry in the minutes of the meeting shall be prima facie
evidence of the fact without any or further proof of the number or proportion of
votes recorded in favour of or against any resolution or question.
4.07 Scrutineers. The chairman or the secretary at any meeting of the
shareholders or the shareholders then present may appoint one or more
scrutineers, who need not be shareholders, to count and report upon the results
of the voting which is done by ballot.
4.08 Joint Shareholders. Where any share entitled to be voted at a meeting
of shareholders is held by two or more persons jointly, those persons or such of
them that attend the meeting of the shareholders shall only constitute one
shareholder for purposes of determining whether a quorum of shareholders is
present.
4.09 Proxy The form of proxy by which a proxy holder may be appointed for
any meeting of the shareholders shall be in the following form or in any other
appropriate form accepted by the chairman of the meeting:
"Proxy
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I/WE the undersigned, being (a) shareholder(s) of ______________________,
hereby nominate, constitute and appoint ___________ ____________________, or in
the absence of __________________________, _____________________________, as
my/our attorney, representative and/or proxy holder with full power and
authority to attend, vote and otherwise act for me/our in my/our name and on
my/our behalf at the annual (or special) meeting of shareholders of the
Corporation, to be held at__________________________________________, on the
_______________ day of _____________________, 19___, and at any and all
adjournments thereof, with full power of substitution, and I/WE, the
undersigned, hereby revoke all other proxies given by me/us, the undersigned,
which might be used in respect of such meeting and any and all adjournments
thereof.
Given this ___________ day of ___________________, 19___.
________________________________________
________________________________________
_______________________________________"
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SECTION FIVE - INDEMNIFICATION
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5.01 Indemnification of directors and officers.
(a) Except in respect of an action by or on behalf of the Corporation or
body corporate to procure a judgment in its favour, the Corporation
shall indemnify a director or officer of the Corporation, a former
director or officer of the Corporation or a person who acts or acted
at the Corporation's request as a director or officer of a body
corporate of which the Corporation is or was a shareholder or
creditor, and his 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 that Corporation or body corporate, if:
(i) he acted honestly and in good faith with a view to the best
interests of the Corporation; and
(ii) in the case of a criminal or administrative action or proceeding
that is enforced by monetary penalty, he had reasonable grounds
for believing that his conduct was lawful.
(b) The Corporation may with the approval of a Court indemnify a person
referred to in subparagraph (a) in respect of an action by or on
behalf of the Corporation or body corporate to procure a judgment in
its favour, to which he is made a party by reason of being or having
been a director or an officer of the Corporation or body corporate,
against all costs, charges and expenses reasonably incurred by him in
connection with such action if he fulfills the conditions set out in
subparagraphs (a) (i) and (ii).
5.02 Indemnification of Others. Subject to subparagraph 5.01(a), the
Corporation may from time to time indemnify and save harmless any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was an employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director or officer,
employee, agent of or participant in another corporation, partnership, joint
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venture, trust or other enterprise, against expenses (including legal fees),
judgments, fines in any amount actually and reasonably incurred by him in
connection with such action, suit or proceeding if the Board determines that:
(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, had reasonable grounds for
believing that his conduct was lawful.
5.03 Right of Indemnity not Exclusive. The provisions for indemnification
contained in the By-laws shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under any By-laws,
agreement, vote of shareholders or disinterested directors or otherwise both as
to an action in his official capacity and as to action in any other capacity
while holding such office and shall continue as to a person who has ceased to be
a director or officer and shall enure to the benefit of the heirs and legal
representatives of such person.
SECTION SIX - GENERAL
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6.01 Notices. In addition to any other method of service permitted by the
Act any notice or document required by the Act, the regulations, the articles or
the By-laws may be sent to any person entitled to receive same in the manner set
out in the Act for service upon a shareholder or director and by any means of
telecommunication with respect to which a written record is made. A notice sent
by means of telecommunication shall be deemed to have been given on the first
business day after the date upon which the written record is made.
6.02 Waiver of Notice. Any shareholder (or his duly appointed proxy
holder), director, officer, auditor or member of a committee may at any time
waive any notice, or waive or abridge the time for any notice required to be
given to him under any provision of the Act, the regulations thereunder, the
articles, the By-laws or otherwise, and such waiver or abridgment, whether given
before or after the meeting or other event of which the notice is required to be
given, shall cure any defect in the giving or in the time of such notice as the
case may be.
6.03 Notice to Joint Shareholders. If two or more persons hold shares
jointly, notice may be given to one of such persons
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and such notice shall be sufficient notice to all of them.
6.04 Signature on Notice. The signature to any notice to be given by the
Corporation may be lithographed, written, printed or otherwise mechanically
reproduced.