EXHIBIT II
ALPHA COMMUNICATIONS CORP.
BY-LAW NO. 2
ALPHA COMMUNICATIONS CORP.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITONS AND INTERPRETATION - 1
1.01 Definitions - 1
1.02 Interpretation - 3
1.03 Headlines and Table of Contents - 3
ARTICLE TWO
GENERAL - 3
2.01 Registered Office - 3
2.02 Corporate Seal - 3
2.03 Financial Year - 3
2.04 Execution of Documents - 3
2.05 Resolutions in Writing - 4
2.06 Divisions - 4
ARTICLE THREE
DIRECTORS - 5
3.01 General - 5
3.02 Qualification - 5
3.03 Election - 5
3.04 Fixing Number of Directors - 5
3.05 Term of Office - 5
3.06 Ceasing to Hold Office - 6
3.07 Resignation of a Director - 6
3.08 Removal - 6
3.09 Vacancies - 6
3.10 Remuneration - 7
3.11 Power to Borrow - 7
3.12 Delegation of Power to Borrow - 7
ARTICLE FOUR
COMMITTEES - 7
4.01 Appointment - 7
4.02 Canadian Membership - 7
4.03 Provisions Applicable - 7
ARTICLE FIVE
MEETINGS OF DIRECTORS - 8
5.01 Place of Meetings - 8
5.02 Calling of Meetings - 8
5.03 Notice of Meetings - 9
5. 04 Regular Meetings - 9
5. 05 First Meeting of New Board - 9
5.06 Participation by Telephone - 9
5.07 Chairman - 9
5.08 Quorum - 9
5.09 Voting - 9
5.10 Auditor - 9
ARTICLE SIX
STANDARD OF CARE OF DIRECTIONS AND OFFICERS - 10
6.01 Standard of Care - 10
6.02 Liability for Acts of Others - 10
ARTICLE SEVEN
FOR THE PROTECTIONS OF DIRECTORS AND OFFICERS - 11
7.01 Indemnification by Corporation - 11
7.02 Insurance - 11
7.03 Directors' Expenses - 12
7.04 Performance of Services for Corporation - 12
ARTICLE EIGHT
INTERREST OF DIRECTORS AND OFFICERS IN CONTRACTS - 12
8.01 Disclosure of Interest - 12
8.02 Time of Disclosure by Director - 12
8.03 Time of Disclosure by Officer - 13
8.04 Time of Disclosure in Extraordinary Cases - 13
8.05 Voting by Interested Director - 13
8.06 Nature of Disclosure - 13
8.07 Effect of Disclosure - 14
8.08 Confirmation by Shareholders - 14
ARTICLE NINE
OFFICERS - 14
9.01 Officers - 14
9.02 Appointment of President or Chairman of the Board and Secretary - 15
9.03 Remuneration and Removal of Officers - 15
9.04 Duties of Officers may be Delegated - 15
9.05 Chairman of the Board - 15
9.06 President - 15
9.07 Managing Director - 15
9.08 General Manager - 15
9.09 Vice-President - 15
9.10 Secretary - 15
9.11 Treasurer - 15
9.12 Assistant Secretary and Assistant Treasurer - 15
9.13 Delegation of Board Powers - 16
9.14 Vacancies - 16
9.15 Variation of Powers and Duties - 16
9.16 Chief Executive Officer - 16
ARTICLE TEN
MEETINGS OF SHAREHOLDERS - 17
10.01 Calling of Meetings - 17
10.02 Annual Meeting - 17
10.03 Special Meeting - 17
10.04 Place of Meetings - 17
10.05 Notice - 17
10.06 Contents of Notice - 17
10.07 Waiver of Notice - 18
10.08 Notice of Adjourned Meetings - 18
10.09 Record Date for Notice - 18
10.10 Omission of Notice - 18
10.11 List of Shareholders - 19
10.12 Shareholders Entitled to Vote - 19
10.13 Persons Entitled to be Present - 20
10.14 Proxies - 20
10.15 Revocation of Proxies - 20
10.16 Deposit of Proxies - 20
10.17 Joint Shareholders - 21
10.18 Chairman and Secretary - 21
10.19 Scrutinizers - 21
10.20 Votes to Govern - 21
10.21 Show of IIands - 21
10.22 Ballots - 21
10.23 Votes on Ballots - 21
10.24 Adjournment - 22
10.25 Quorum - 22
10.26 Only One Shareholder - 22
ARTICLE ELEVEN
SHARES AND TRANSFERS - 22
11.01 Issuance - 22
11.02 Commissions - 22
11.03 Share Certificates - 22
11.04 Transfer Agent - 23
11.05 Transfer of Shares - 23
11.06 Defaced, Destroyed, Stolen or Lost Certificates - 24
11.07 Joint Shareholders - 24
11.08 Deceased Shareholders - 24
ARTICLE TWELVE
DIVIDENDS - 24
12.01 Declaration of Dividends - 24
12.02 Joint Shareholders - 24
12.03 Dividends from Funds Derived from Operations - 25
ARTICLE THIRTEEN
RECORD DATES - 25
13.01 Fixing Record Dates - 25
13.02 No Record Date Fixed - 25
13.03 Notice of Record Date - 25
13.04 Effect of Record Date - 26
ARTICLE FOURTEEN
CORPORATE RECORDS AND INFORMATION - 26
14.01 Keeping of Corporate Records - 26
14.02 Access to Corporate Records - 27
14.03 Copies of Certain Corporate Records - 27
14.04 Report to Shareholders - 27
14.05 No Discovery of Information - 27
14.06 Conditions for Inspection - 27
ARTICLE FIFTEEN
NOTICES - 28
15.01 Method of Giving - 28
15.02 Shares Registered in More Than One Name - 28
15.03 Persons Becoming Entitled by Operation of Law - 28
15.04 Deceased Shareholder - 28
15.05 Signature to Notice - 28
15.06 Proof of Service - 29
15.07 Computation of Time - 29
15.08 Wavier of Notice - 29
ARTICLE SIXTEEN
REPEAL OF BY-LAW NO. 1 - 29
16.01 Repeal - 29
BY-LAW NO.2
A by-law' relating generally to the
transaction of the business and affairs of
ALPHA COMMUNICATIONS CORP.
(herein called the "Corporation")
BE IT PASSED AND MADE as a by-law of the Corporation as follows:
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
1 .01 Definitions
In this by-law, unless there is something in the subject matter or context
inconsistent therewith,
(i) "Act" means the Business Corporations Act of Ontario, as amended or
re-enacted from time to time, and includes the regulations made pursuant
thereto;
(ii) "affiliate means an affiliated body corporate, and one body corporate shall
he deemed to be affiliated with another body corporate if, but only it~ one
of them is the subsidiary of the other or both are subsidiaries of the same
body corporate or each of them is controlled by the same person:
(iii) "articles" means the original or restated articles of incorporation,
articles of amendment, articles of amalgamation, articles of arrangement,
articles of continuance, articles of dissolution, articles of
reorganization. articles of revival, letters patent, supplementary letters
patent, a special Act and any other instrument by which the Corporation is
incorporated:
(iv) "auditor" means the auditor of the Corporation;
(v) "board" means the board of directors of the Corporation;
(vi) "by-law" means a by-law of the Corporation;
(vii) "Chairman of the Board", "President". "Vice-President. "Secretary".
"Treasurer", "Managing Director", "General Manager", "Assistant
Secretary", "Assistant Treasurer" or any other officer means such officer
of the Corporation;
(viii) "committee" means a committee appointed pursuant to section 4.01 of this
by-law;
(ix) "director" means a director of the Corporation;
(x) "day" means a clear day and a period of days shall be deemed to commence
the day following that began the period and shall be deemed to terminate at
midnight of the last day of the period except that if the last day of the
period fails on a Sunday or holiday the period shall terminate at midnight
of the day next following that is not a Sunday or holiday;
(xi) "employee'' means an employee of the Corporation;
(xii) ''number of directors" means the number of directors set out in the
articles or, where a minimum and maximum number of directors is set out in
the articles, the number of directors as shall be determined from time to
time by special resolution or, if the special resolution empowers the
directors to determine the number, by resolution of the directors;
(xiii) "officer'' means an officer of the Corporation;
(xiv) "person" includes an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization trust, body corporate and a natural person in his capacity as
trustee executor, administrator or other legal representative:
(xv) "resident Canadian" means an individual who is,
(A) a Canadian citizen ordinarily resident in Canada.
(B) a Canadian citizen not ordinarily resident in Canada who is a member
of a class of persons prescribed by the Act for the purposes of the
definition of "resident Canadian", or
(C) a permanent resident within the meaning of the Immigration Act of
Canada and ordinarily resident in Canada except a permanent resident
who has been ordinarily resident in Canada for more than one year
after the time at which he first became eligible to apply for Canadian
citizenship;
(xvi) "shareholder" means a shareholder of the Corporation;
(xvii) "special resolution" means a resolution that is
(A) submitted to a special meeting of the shareholders of the Corporation
duly called for the purpose of considering the resolution and passed,
with or without amendment, at such meeting by at least two-thirds of
the votes cast, or
(B) consented to in writing by each shareholder of the Corporation
entitled to vote at such a meeting or his attorney authorized in
writing;
(xviii) "subsidiary" means in relation to another body corporate, a body
corporate which
(A) is controlled by
(1) that other or
(2) that other and one or more bodies corporate each of which is
controlled by that other, or
(3) is a subsidiary of a body corporate that is that other's
subsidiary;
(B) is a subsidiary of a body corporate that is that other's subsidiary;
1.02 Interpretation
In each by-law and resolution, unless there is something in the subject
matter or context inconsistent therewith, the singular shall include the plural
and the plural shall include the singular and the masculine shall include the
feminine. Wherever reference is made in this or any other by-law or in any'
special resolution to any statute or section thereof such reference shall be
deemed to extend and refer to any amendment to or re-enactment of such statute
or section, as the case may be.
1.03 Headings and Table of Contents
The headings and table of contents in this by-law' are inserted for
convenience of reference only and shall not affect the construction or
interpretation of the provisions of this by-law.
ARTICLE TWO
GENERAL
2.01 Registered Office
The Corporation may by resolution of the directors change the location of
its registered office within the municipality or geographic township specified
in the articles.
2.02 Corporate Seal
The Corporation may have a corporate seal which shall be adopted and may he
changed by resolution of the directors.
2.03 Financial Year
The directors may by resolution fix the financial year end of the
Corporation and the directors may from time to time by resolution change the
financial year end of the Corporation.
2.04 Execution of Documents
(a) Instruments in writing requiring execution by the Corporation may he
signed on behalf of the Corporation by
(i) the Chairman of the Board.
(ii) the President
(iii) any two persons one of whom holds the office of Managing Director,
Vice-President or director and the other of whom holds one of the said
offices or the office of Secretary Assistant Secretary, Treasurer or
Assistant Treasurer, or
(iv) any two directors
and all instruments in writing so signed shall be binding upon the Corporation
without any further authorization or formality. The board may from time to time
by resolution appoint any officer or officers or any other person or persons on
behalf of the Corporation either to sign instruments in writing generally or to
sign specific instruments in writing.
(h) The corporate seal of the Corporation (if any) may he affixed to
instruments in writing signed as aforesaid by any person authorized to
sign the same or at the direction of any such person.
(c) The term "instruments in writing" as used herein shall include deeds,
contracts, mortgages, hypothecs, charges, conveyances, transfers and
assignments of property real or personal, immovable or movable,
agreements, releases, receipts and discharges for the payment of money
or other obligations, cheques, promissory notes, drafts, acceptances,
bills of exchange and orders for the payment of money, conveyances,
transfers and assignments of shares instruments of proxy powers of
attorney, stocks, bonds, debentures or other securities or any paper
writings.
(d) Subject to the provisions of section 11.04 hereof the signature or
signatures of an officer or director, person or persons appointed as
aforesaid by resolution of the directors, may, if specifically
authorized by resolution of the directors, be printed, engraved,
lithographed or otherwise mechanically reproduced upon all instruments
in writing executed or issued by or on be half of the Corporation and
all instruments in writing on which the signature or signatures of any
of the foregoing officers, directors or persons shall he so
reproduced, by authorization by resolution of the directors shall be
deemed to have been manually signed by such officers or persons whose
signature or signatures is or are so reproduced and shall be as valid
as if they had been signed manually and notwithstanding that the
officers, directors or persons whose signature or signatures is or are
so reproduced may have ceased to hold office at the date of the
delivery or issue of such instruments in writing.
2.05 Resolutions in Writing
(a) A resolution in writing, signed by all the directors entitled to vote
on that resolution at a meeting of directors or a committee of
directors, is as valid as if it had been passed at a meeting of
directors or such committee of directors.
(b) 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 representations in writing are submitted by
the auditor in accordance with the Act.
(c) 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.
2.06 Divisions
The board may cause the business and operations of the Corporation or any
part thereof to be divided into one or more divisions upon such basis, including
without limitation, types of business or operations, geographical territories,
product lines or goods or services, as tile board may consider appropriate in
each case. From time to time the hoard or any person authorized by the board may
authorize, upon such basis as may be considered appropriate in each case:
(i) the further division of the business and operations of any such
division into sub-units and the consolidation of the business and
operations of any such divisions or sub-units;
(ii) the designation of any such division or sub-unit by and the carrying
on of the business and operations of any such division or sub-unit
under, a name other than the name of the Corporation; and
(iii) the appointment of officers for any such division or sub-unit, the
determination of their powers and duties, and the removal of any such
officer Sc) appointed without prejudice to such officer's rights under
an employment contract or in law, provided that any such officer shall
not, as such, be an officer of the Corporation.
ARTTCLE THREE
DIRECTORS
3.01 General
The directors shall manage or supervise the management of the business and
affairs of the Corporation.
(a) The following persons are disqualified from being a director:
(i) a person who is less than eighteen (18) years of age,
(ii) a person who is of unsound mind and has been so found by a court
in Canada or elsewhere,
(iii) a person who is not an individual, and
(iv) a person who has the status of bankrupt.
(b) Unless the articles otherwise provide, a director is not required to
hold shares issued by the Corporation.
(c) Unless the Corporation is a non-resident corporation, a majority of
the directors shall he resident Canadians but where the Corporation
has only one or two directors, that director or one of the two
directors, as the case may be shall be a resident Canadian.
3.03 Election
Subject to the provisions of the Act the directors shall he elected at the
first meeting of shareholders and at each succeeding annual meeting of the
shareholders.
3.04 Fixing Number of Directors
If the articles provide for a minimum and maximum number of directors, the
number of directors of the Corporation and the number of directors to he elected
at the annual meeting of the shareholders shall he such number as shall be
determined front time to time by special resolution or, if the special
resolution empowers the directors to determine the number, by resolution of the
directors.
3.05 Term of Office
Subject to the provisions of the articles, the tem of office of a director
not elected for an expressly stated term shall commence at the close of the
meeting of shareholders at which he is elected and shall terminate at the
close of the first annual meeting of shareholders following his election. If an
election of directors is not held at the proper time the incumbent directors
continue in office until their successors are elected.
3.06 Ceasing to Hold Office
A director ceases to hold office when
(i) he dies or, subject to section 3.07 of this bylaw, he resigns;
(ii) he is removed from office in accordance with the provisions of the Act
or the by-laws; or
(iii) he becomes disqualified from being a director under the Act or
by-laws.
3.07 Resignation of a Director
A director may resign his office as a director by giving to the Corporation
his written resignation, which resignation shall become effective at the later
of
(i) the time at which such resignation is received by the Corporation, or
(ii) the time specified in the resignation.
3.08 Removal
Subject to the provisions of the Act, the shareholders may by resolution at
an annual or special meeting of shareholders remove any director or directors
from office and may by resolution at such meeting elect any person to fill the
vacancy created by the removal of such director, failing which the vacancy
created by the removal of such director may be filled by the directors.
3.09 Vacancies
(a) Subject to the provisions of the Act, a quorum of directors may fill a
vacancy among the directors, except a vacancy resulting from
(i) an increase in the number of directors or in the maximum number of
directors, as the case may be, or
(ii) a failure to elect the number of directors required to he elected at
any meeting of shareholders.
(b) A director appointed or elected to fill a vacancy holds office for the
unexpired tern of his predecessor.
(c) If there is not a quorum of directors, or if there has been a failure
to elect the number of directors required by the articles or by
section 3.04 hereof the directors then in office shall forthwith call
a special meeting of shareholders to fill the vacancy and. if they
fail to call a meeting or if there are no directors then in office,
the meeting may he called by an' shareholder.
(d) Subject to the articles or by-law's where there is a vacancy or
vacancies on the board the remaining directors may exercise all the
powers of the board so long as a quorum of the board remains in
office,
3.10 Remuneration
Subject to the articles and the by-laws the directors may fix the
remuneration of the directors, officers and employees of the Corporation.
3.11 Power to Borrow
Unless the articles or by-laws otherwise provide, the directors may without
authorization of the shareholders from time to time
(i) borrow money upon the credit of the Corporation:
(ii) issue, reissue, sell or pledge debt obligations of the Corporation;
(iii) subject to the Act, give a guarantee on behalf of the Corporation to
secure performance of an obligation of any person; and
(iv) mortgage, hypothecate, pledge or otherwise create a security interest
in all or ally property of the Corporation owned or subsequently
acquired, to secure any obligation of tile Corporation.
3.12 Delegation of Power to Borrow
Unless the articles or by-laws otherwise provide, the directors may by
resolution delegate any or all of the powers referred to in section 3.11 of this
by-law to a director, a committee or an officer,
ARTTCLE FOUR
COMMITTEES
4.01 Appointment
Subject to the Act, the articles or the by-laws, tile directors may appoint
from their number one or more committees and may by resolution delegate to any
such committee any of the powers of the directors.
4.02 Canadian Membership
Except as allowed by the Act, a majority of the members of any
committee appointed by the directors shall be resident Canadians.
4.03 Provisions Applicable
The following provisions shall apply to any committee appointed by the
directors:
(i) unless otherwise provided by resolution of the directors, each member
of a committee shall continue to be a member thereof until the
expiration of his term of office as a director:
(ii) the directors may from time to time by resolution specify which member
of a committee shall he the chairman thereof and, subject to the
provisions of section 4.01 of this by-law, may by resolution modify
dissolve or reconstitute a committee and make such regulations with
respect to and impose such restrictions upon the exercise of the
powers of a committee as the directors think expedient:
(iii) the meetings and proceedings of a committee shall he governed by the
provisions of tile by-laws of the Corporation for regulating the
meetings and proceedings of the hoard so far as the same are
applicable thereto and are not superseded by any regulations or
restrictions made or imposed by the directors pursuant to tile
foregoing provisions hereof;
(iv) subject to subsection (v) hereof no business shall be transacted at
any meeting of a committee unless a majority of the members of such
committee present are resident Canadians;
(v) business may be transacted at any meeting of a committee where a
majority of resident Canadian directors is not present if
(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;
(vi) the members of a committee as such shall be entitled to such
remuneration for their services as members of a committee as may be
fixed by resolution of tile directors, who are hereby authorized to
fix such remuneration;
(vii) unless otherwise provided by resolution of the hoard, the Secretary
of the Corporation shall he the secretary of any committee;
(viii) subject to the provisions of section 4.02 of this by-law, the
directors shall fill vacancies in a committee by appointment from
among their number, and
(ix) unless otherwise provided by resolution of tile board, meetings of a
committee may be convened by the direction of any member thereof
ARTICLE FIVE
MEETINGS OF DIRECTORS
5.01 Place of Meetings
Meetings of the board and of any committee may he held at any place within or
outside Ontario. In any financial year of the Corporation, a majority of the
meetings of the hoard and a majority of the meetings of any committee need not
beheld within Canada.
5.02 Calling of Meetings
A meeting of the board maybe called at any time by the Chairman of the
Board the President (if he is a director), a Vice-President (if he is a
director) or any two of the directors and the Secretary shall cause notice of a
meeting of directors to be given when so directed to any such person or persons.
5.03 Notice of Meetings
(a) Notice of any meeting of the hoard specifying the time and, except
where the meeting is to he held as provided for in section 5.06 of the by-law,
the place for the holding of such meeting shall be given in accordance with the
terms of section 15.01 hereof to every director not less than two day's before
the date of tile meeting.
(b) Notice of an adjourned meeting of the hoard is not required to be
given if the time and place of the adjourned meeting is announced at the
original meeting.
(c) Meetings of the board may beheld at any lime without formal notice
if all the directors are present or if all the directors who are not present in
writing or by cable, telegram or any form of transmitted or recorded
communication, waive notice or signed their consent to the meeting being held
without formal notice. Notice of any meeting or any irregularity' in any meeting
or in the notice thereof may be waived by any director either before or after
such meeting. Attendance of a director at a meeting of the hoard 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 tile grounds that the
meeting is not lawfully called.
5.04 Regular Meetings
The hoard may by resolution fix a day or days in any month or months for
the holding of regular meetings at a time and place specified in such resolution
copy of any resolution of the board specifying the time and place for the
holding of regular meetings of the board shall be sent to each director at least
two days before the first of such regular meetings and no other notice shall he
required for any of such regular meetings.
5.05 First Meeting of New Board
For the first meeting of the board to be held immediately following tile
election of directors at an annual or other meeting of tile shareholders or for
a meeting of the board at which a director is appointed to fill a vacancy in the
board, no notice need be given to the newly elected or appointed director or
directors.
5.06 Participation by Telephone
If all the directors present at or participating in the meeting consent, a
meeting of the board or of a committee may be held by means of such telephone,
electronic or other communication facilities as permit all persons participating
in the meeting to communicate with each other simultaneously and
instantaneously, and a director participating in such a meeting by such means is
deemed to be present in person at that meeting for the purposes of the Act and
this by-law.
5.07 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
who is present at tile 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 numbers to be chairman.
5.08 Quorum
(a) Subject to the articles, the by-laws, and subsection 5.08(b) of this
by-law, a majority of tile number of directors or minimum number of directors
required by tile articles constitutes a quorum at any meeting of the board
but no case shall a quorum he less than two-fifths of the number of directors or
minimum number of directors, as tile case may he.
(h) Where the Corporation has fewer than three directors, the director or
both directors, as the case may be, must be present at any meeting of the board
to constitute a quorum.
(c) Subject to subsection 5.08 (d) hereof directors, other than directors of
a non-resident corporation, shall not transact business at a meeting of
directors unless a quorum of the hoard is present and a majority of the
directors present are resident Canadians.
(d) Directors may transact business at a meeting of directors where a
majority of resident Canadian directors is not present if,
(e) a resident Canadian director who is unable to be present approves in
writing or by telephone or other communications facilities tile business
transacted at the meeting, and
(i) a majority of resident Canadian directors would have been present had
that director been present at tile meeting.
5.09 Voting
All questions arising at any meeting of tile hoard shall be decided by a
majority of votes. In case of an equality of votes, the chairman of the meeting
shall not have, in addition to his original vote, a second or casting vote,
5.10 Auditor
The auditor shall be entitled to attend at the expense of the Corporation
and be heard at meetings of the board on matters relating to his duties as
auditor.
ARTICLE SIX
STANDARD OF CARE OF DIRECTORS AND OFFICERS
6.01 Standard of Care
6.02 Every director amid officer ill exercising his powers and discharging
his duties shah,
(i) act honestly and in good faith with a view to tile best interests of
tile Corporation; and
(ii) exercise the care, diligence and skill that a reasonably prudent
person would exercise in comparable circumstances.
6.02 Liability for Acts of Others
Subject to tile provisions of section 6.01 of this by-law, 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 ill any receipts or acts
for conformity or for any loss, damage, or expense happening to the Corporation
through the insufficiency or deficiency of title to ally property acquired by
order of the hoard for or on behalf of tile Corporation or for the insufficiency
or deficiency of any security in or upon which any of the moneys of or belonging
to the Corporation shall be placed out or invested or for any loss or damage
arising from the bankruptcy, insolvency, or tortuous act of any person, firm or
corporation with whom or which any money's, securities or effects of the
Corporation shall he lodged or deposited or for any' loss occasioned by any'
error of judgment or oversight on his part, or for any other loss, damage or
misfortune whatsoever which may happen in the execution of the duties of his
respective office or trust or in relation thereto, unless the same are
occasioned by his own willful neglect or default: provided that nothing herein
shall relieve any director or officer from the duty to act ill accordance with
the Act and the regulations there under or from liability for any branch thereof
ARTICLE SEVEN
FOR THE PROTECTION OF DIRECTORS AND OFFICERS
7.01 Indemnification by Corporation
(a) 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, and his heirs and legal representatives, against all
costs, charges and expenses, including an an1ount 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
(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 a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
The Corporation may from time to time enter into agreements pursuant to which
the Corporation agrees to indemnify one or more persons in accordance with the
provisions of this section.
(b) The Corporation shall, subject to the approval of the Ontario Court
(General Division), indemnify a person referred to in subsection 7.01 (a) of
this by-law in respect of an action by or on behalf of the Corporation or body
corporate to procure a judgment ill its favor, 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 fulfils the conditions set out in
clauses 7.0h(a)(i) and 7.Oi(a)(ii) of this by-law.
(c) Notwithstanding anything iii this Article, a person referred to in
subsection 7.01 (a) of this by-law is entitled to indemnity from the Corporation
in respect of all costs, charges and expenses reasonably incurred by him in
connection with the defense 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 tile Corporation or body corporate, if the person seeking
indemnity
(i) was substantially' successful on the merits in his defense of the
action or proceeding, and
(ii) fulfills the conditions set out in clause 7.01(a)(i) of this by-law.
7.02 Insurance
The Corporation may purchase and maintain insurance for tile benefit of any
person referred to in subsection 7.0 1(a) of this by-law against any liability
incurred by him
(i) in his capacity as a director or officer except where the liability
relates to his failure to act honestly and in good faith with a view
to the best interests of the Corporation, or
(ii) in his capacity as a director or officer of another body corporate
where he acts or acted In that capacity at the Corporations request,
except where the liability relates to his failure to act honestly and
in good faith with a view to the best interests of the body corporate.
7.03 Directors Expenses
The directors shall he reimbursed for their out-of-pocket expenses incurred
in attending board, committee or shareholders' meetings or otherwise in respect
of the performance by them of their duties and no confirmation by the
shareholders of any such reimbursement shall be required.
7.04 Performance of Services for Corporation
Subject to Article S of tins by-law, if any director or officer shall be
employed by or shall perform services for the Corporation otherwise than as a
director or officer or shall he a member of a firm or a shareholder, director or
officer of a body corporate which is employed by or performs services for the
Corporation, the fact of his being a director or officer shall not disentitle
such director or officer or such firm or company, as the case may be, from
receiving proper remuneration for such services.
ARTICLE EIGHT
INTEREST OF DIRECTORS AND OFFICERS IN CONTRACTS
8.01 Disclosure of Interest
A director or officer who,
(i) is a party lo a material contract or transaction or proposed material
contract or transaction with the Corporation; or
(ii) is a director or an officer of, or has a material interest in. any
person who is a party to a material contract or transaction or
proposed material contract or transaction with the Corporation, shall
disclose in writing to the Corporation or request to have entered in
the minutes of meeting of directors the nature and extent of his
interest.
8.02 Time of Disclosure by Director
The disclosure required by section 8.01 of this by-law shall he made, in
the case of a director,
(i) at the meeting at which a proposed contract or transaction is first
considered:
(ii) if the director was not then interested in a proposed contract or
transaction, at the first meeting after he becomes so interested;
(iii) if the director becomes interested after a contract is made or a
transaction is entered into, at the first meeting after lie becomes so
interested, or
(iv) if a person who is interested in a contract or transaction later
becomes a director, at the first meeting after he becomes a director,
8.03 Time of Disclosure by Officer
The disclosure required by section 8.01 of this by-law shall be made,
in the case of an officer who is not a director,
(i) forthwith after he becomes aware that the contract or transaction or
proposed contract or transaction is to he considered or has been
considered at a meeting of directors:
(ii) if the officer becomes interested after a contract is made or a
transaction is entered into, forthwith after he becomes so interested;
or
(iii) if a person who is interested in a contract or transaction later
becomes an officer, forthwith after he becomes an officer.
8.04 Time of Disclosure in Extraordinary Cases
Notwithstanding sections 8.02 and 8.03 of this by-law, where section 8.01
of this by-law applies to a director or officer in respect of a material
contract or transaction or proposed material contractor transaction that, in the
ordinary course of the Corporation's business, would not require approval by the
directors or shareholders, the director or officer shall disclose in writing to
the Corporation or request to have entered in the minutes of meetings of
directors the nature and extent of his interest forthwith after the director or
officer becomes aware of the contract or transaction or proposed contract or
transaction,
8.05 Voting by Interested Director
A director referred to in section 8.01 of this by-law shall not vote on any
resolution to approve the contract or transaction unless tile contract or
transaction is,
(i) an arrangement by way of security for money lent to or obligations
undertaken by him for the benefit of the Corporation or an affiliate;
(ii) one relating primarily to his remuneration as a director, officer,
employee or agent of the Corporation or an affiliate;
(iii) one for indemnity or insurance pursuant to the provisions of the Act:
or
(iv) one with an affiliate
8.06 Nature of Disclosure
For the purposes of this Article, a general notice to the directors by a
direct or officer disclosing that he is a director or officer of or has a
material interest iii a person and is to be regarded as interested in any
contract made or any transactional entered into with that personal is a
sufficient disclosure of interest in relation to any' contract so made or
transaction so entered into.
8.07 Effect of Disclosure
Where a material contract is made or a material transaction is entered into
between the Corporation and a director or officer of tile Corporation, or
between the Corporation and another person of which a director or officer of the
Corporation is a director or officer or in which he has a material interest.
(i) the director or officer is not accountable to the Corporation or its
shareholders for any profit or gain realized from the contract or
transaction; and
(ii) the contract or transaction is neither void nor void able, by reason
only' of that relationship or by' reason only that the director is
present at or is counted to determine the presence of a quorum at the
meeting of directors that authorized the contract or transaction, if
the director or officer disclosed his interest in accordance with
sections 8.02. 8.03. 8.04 or 8.06 of this by-law. as the case may he,
and the contract or transaction was reasonable and fair to the
Corporation at the time it was so approved.
8.08 Confirmation by Shareholders
Notwithstanding anything in this Article, a director or officer, acting
honestly and in good faith, is not accountable to the Corporation or to its
shareholders for any profit or gain realized from any such contract or
trans-action by reason only of his holding the office of director or officer,
and the contract or transaction, if it was reasonable and fair to the
Corporation at the time it was approved, is not by reasonable only of the
director's or officer's interest therein void or void able, where.
(i) the contract or transaction is confirmed or approved by special
resolution at a meeting of the shareholders duly called for that
purpose: and
(ii) the nature and extent of the director's or officer's interest in the
contract or transaction are disclosed in reasonable detail in the
notice calling tile meeting or in the information circular required
pursuant to the provisions of title Act.
ARTICLE NINE
OFFICERS
9.01 Officers
Subject to the articles and the by-laws, the hoard shall, annually or as
often as maybe required, by resolution appoint a President or Chairman of the
Board and a Secretary. In addition, the board may from time to time by'
resolution appoint such other officers as the board determines to be necessary
or advisable in tile interests of tile Corporation, which officers shall,
subject to the Act, have such authority and perform such duties as may from time
to time be prescribed by resolution of the hoard, None of the said officers,
other than the Chairman of the Board, need be a member of the hoard. Any two or
more offices of title, Corporation may be held by the same person, except those
of President and Vice-President. If the same person holds both the office of
Secretary and the office of Treasurer, he may he known as Secretary-Treasurer.
9.02 Appointment of President or Chairman of the Board and Secretary
At the first meeting of the board after each annual meeting of
shareholders, the hoard shall appoint a President or Chairman of the Board and a
Secretary. In default of such appointment, the then incumbent shall hold office
until his successor is appointed.
9.03 Remuneration and Removal of Officers
The remuneration of all officers shall he determined from time to time by
the board. The fact that any officer is a director or shareholder shall not
disqualify him from receiving such remuneration as may be so determined. All
officers shall be subject to removal by resolution of the board at any time.
9.04 Duties of Officers may be Delegated
In ease of the absence or inability to act of the Chairman of the Board or
the President. or any other officer of the Corporation, or for any other reason
that the board may deem sufficient, the board may delegate the powers of such
officer to any other officer or to any director for the time being.
9.05 Chairman of the Board
Time Chairman of the Board shall if present, preside at all meetings of
directors and shareholders. 1-Ic shall sign all instruments which require his
signature and shall perform all duties incident to his office, and shall have
such other powers and perform such other duties as may from time to time be
prescribed by resolution of the board.
9.06 President
Time President shall sign all instruments which require his signature and
shall perform all duties incident to his office, and shall have such other
powers and perform such other duties as may from time to time be prescribed by
resolution of the board.
9.07 Managing Director
Subject to the Act, articles and by-laws, the directors may appoint from
their number a Managing Director who is a resident Canadian, and may delegate to
such Managing Director any of time powers of the directors. The Managing
Director shall have such other powers and perform such other duties as may from
time to time be prescribed by resolution of the board.
9.08 General Manager
The General Manager shall have such authority to manage the business of the
Corporation and perform such duties as may from time to time be prescribed by
resolution of time hoard.
9.09 Vice-President
During time President's absence or inability or refusal to act, the
President's duties may be performed and his powers may he exercised by the
Vice-President, or if there are more than one, by the Vice-Presidents in order
of seniority or designation (as determined by the hoard), except that no
Vice-President shall preside at a meeting of the hoard unless he is a director.
A Vice-President shall also have such other authority and perform such other
duties as may from time to time he prescribed by resolution of time board.
9.10 Secretary
The Secretary shall give, or cause to be given, all notices required to he
given to shareholders, directors, auditors and members of any committee, He
shall enter or cause to be entered in the books kept for that purpose minutes of
all proceedings at meetings of directors and of shareholders. He shall he the
custodian of the seal (if any) of the Corporation and of all books, papers,
records, documents and other instruments belonging to the Corporation. The
Secretary have such other authority and perform such other duties as may from
tulle to time be pre-scribed by resolution of the board.
9.11 Treasurer
The Treasurer shall have the care and custody of all the funds and
securities of the Corporation and shall deposit the same in the name of the
Corporation in such hank or hanks or with such depositary or depositaries as the
board may by resolution direct, He shall at all reasonable times exhibit his
books and accounts to any director upon application at the office of the
Corporation during business hours. He shall sign or countersign such instruments
as require his signature and shall perform all duties incident to his office or
that are properly required of him by resolution of the board. He may be required
to give such bond for the faithful performance of his duties as the hoard in its
uncontrolled discretion may require hut no director shall he liable for failure
to require any bond or for the insufficiency of any bond or for any loss by
reason of the failure of the Corporation to receive any indemnity thereby
provided. Tile Treasurer shall also have such other authority and perform such
other duties as may from time to time be prescribed by resolution of the board.
9.12 Assistant Secretary and Assistant Treasurer
(a) During the Secretary's absence or inability or refusal to act, the
Assistant Secretary shall perform all the duties of the Secretary. The Assistant
Secretary' shall also have such other authority and perform such other duties as
may from time to time be prescribed by resolution of the board.
(b) During the Treasurer's absence or inability or refusal to act, the
Assistant Treasurer shall perform all the duties of the Treasurer, The Assistant
Treasurer shall also have such other authority and perform such other duties as
may from time to lime he prescribed by resolution of the board.
9.13 Delegation of Board Powers
In accordance with the by-laws and subject to the provisions of the Act,
the hoard may from time to time by resolution delegate to any officer or
officers power to manage the business and affairs of the Corporation.
9.14 Vacancies
If any office of the Corporation shall for any reason he or become vacant,
the directors by resolution may appoint a person to fill such vacancy.
9.15 Variation of Powers and Duties
Notwithstanding the foregoing, the hoard may from time to time and subject
to the provisions of the Act, add to or limit the powers and duties of an office
or of an officer occupying any office.
9.16 Chief Executive Officer
(a) The hoard may by resolution designate any one of time officers
(including the Chairman of time Board, if any) as the Chief Executive Officer of
the Corporation and may from time to time by resolution rescind any such
designation and designate another officer as the Chief Executive Officer of time
Corporation.
(b) The officer designated as the Chief Executive Officer of the
Corporation pursuant to subsection (a) of this section shall exercise general
supervision over the affairs of the Corporation.
ARTICLE TEN
MEETINGS OF SIIAREHOLI)ERS
10.01 Calling of Meetings
A meeting of shareholders may he called at any time by resolution of the
board or by the Chairman of the Board or by the President, and time Secretary
shall cause notice of a meeting of shareholders to be given when directed so to
do by resolution of the board or by the Chairman of the Board or by the
President.
10.02 Annual Meeting
Subject to the provisions of the Act, the Corporation shall hold an annual
meeting of shareholders not later than eighteen (18) months after the
Corporation comes into existence and subsequently not later than fifteen (15)
months after holding the last preceding annual meeting for the purpose of
considering the financial statements and the auditor's report, electing
directors and appointing auditors.
10.03 Special Meeting
Subject to the provisions of the Act, a special meeting of shareholders may
be called at any time and may beheld in conjunction with an annual meeting of
shareholders.
10.04 Place of Meetings
Subject to the articles, a meeting of shareholders shall beheld at such
place in or outside Ontario as the directors determine or, in the absence of
such a determination, at the place where the registered office of the
Corporation is located.
10.05 Notice
Notice of the time and place of each meeting of shareholders shall be given
not less than twenty-one (21) days and not more than fifty (50) days before the
date of the meeting to each director, to the auditor and to each shareholder
entitled to vote at such meeting. A notice of a meeting is not required to he
sent to shareholders with were not registered on the records of the Corporation
or its transfer agent on time record date determined under subsection 10.09(a)
of this by-law but failure to receive a notice does not deprive a shareholder of
tile right to vote at the meeting.
10.06 Contents of Notice
The notice of a meeting of shareholders shall state time day, hour and
place of the meeting, and shall state or be accompanied by a statement of
(i) the nature of any special business to be transacted at the meeting in
sufficient detail to permit a shareholder to form a reasoned judgment
thereon, and
(ii) the text of any special resolution or by-law to he submitted to the
meeting. For the purposes of this section "special business" includes
all business transacted data special meeting of shareholders and all
business transacted at an annual meeting of shareholders except
consideration of the minutes of aim earlier meeting, the financial
statements and auditor's report, election of directors and
reappointment of the incumbent auditor,
10.07 Waiver of Notice
A shareholder and any other person entitled to attend a meeting of
shareholders may in any manner and at any time waive notice of a meeting of
shareholders, and attendance of any such person at a meeting of shareholders is
a waiver of notice of time meeting, except where he attends a meeting for the
express purpose of objecting to the transaction of army business on time grounds
that the meeting is not lawfully called.
10.08 Notice of Adjourned Meetings
(a) If a meeting of shareholders is adjourned for less than thirty (30)
days, it is not necessary to give notice of the adjourned meeting other than by
announcement at tile earliest meeting that is adjourned.
(b) If a meeting of shareholders is adjourned by one or more
adjournments for an aggregate of thirty (30) days or more, notice of the
adjourned meeting shall he given as for an original meeting.
10.09 Record Date for Notice
(a) The directors may by resolution fix in advance a time and date as
the record date for time determination of the shareholders entitled to receive
notice of a meeting of tile shareholders, which record date shall not precede by
more than fifty (50) days or by less than twenty-one (21) days the date on which
time meeting is to be held. Where no such record date for the determination of
the shareholders entitled to notice of a meeting of time shareholders is fixed
by the directors as aforesaid, such record date shall be.
(i) at the chose of business on the day immediately preceding time day on
which notice of such meeting is given, or
(ii) if no notice is given, the day on which the meeting is held;
(b) If a record date is fixed pursuant to subsection (a) of this
section, 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 thereof shall he given, not less than seven days before the
date so fixed, in accordance with section 13.03 hereof
10.10 Omission of Notice
Subject to tile provisions of the Act, the accidental omission to give
notice of any meeting of shareholders to any person entitled thereto or the
non-receipt of any notice by any such person shall not invalidate any resolution
passed or any proceedings taken at any meeting of shareholders.
10.11 List of Shareholders
(a) The Corporation shall prepare a list of shareholders entitled to
receive notice of a meeting. arranged in alphabetical order and showing tile
number of shares held by each shareholder, which list shall he prepared.
(i) if a record date is fixed under subsection 10.09(a) of this by-haw not
later than ten days after such record date; or
(ii) if no record date is fixed.
(A) at the close of business on the day immediately preceding the day
on which notice is given, or
(B) where no notice is given, on the day on which the meeting is
held.
(b) A shareholder may examine the list of shareholders,
(i) during usual business hours at the registered office of the
Corporation or at the place where its central securities register is
maintained, and
(ii) at the meeting of shareholders for which the list was prepared.
10.12 Shareholders Entitled to Vote
(a) Where the Corporation fixes a record date under subsection 10.09(a)
of this by-law, a person named in the list prepared under section 10,1! of this
by-law is entitled to vote the shares shown opposite his name at the meeting to
which the list relates, except to the extent that,
(i) the person has transferred any of his shares after the record date:
and
(ii) the transferee of those shares,
(A) produces properly endorsed share certificates, or
(B) otherwise establishes that he owns the shares,
and demands, not later than ten days before time meeting. or such shorter period
before lime meeting as the by
laws of the Corporation may provide that his name be included in the list before
the meeting, in which case the transferee is entitled to vote such shares at the
meeting.
(b) Where the Corporation does not fix a record date under subsection
10.09(a) of this by-law a person named in the list prepared under section 10.11
is entitled to vote the shares shown opposite his name at the meeting to which
tile list relates, except to the extent that,
(i) the person has transferred any of his shares after the date on which
tile 1t5t referred to in section 10.11 of this by-law is prepared, and
(ii) the transferee of those shares,
(A) produces properly endorsed share certificates, or
(B) otherwise establishes that he owns tile shares,
and demands not hater than ten day's before the meeting, or such shorter
period before the meeting as the by-laws of the Corporation may provide. that
his name he included in the list before the meeting to which case tile
transferee is entitled to vote such shares at the meeting.
10.13 Persons Entitled to he Present
The only persons entitled to attend a meeting of shareholders shall be
those entitled to vote thereat and the President, the Secretary, the directors,
the scrutinizer or scrutinizers and the auditor and others who, although not
entitled to vote, are entitled or required under an~ provision of the Act or the
articles or the 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.
10.14 Proxies
(a) Every shareholder entitled to vote at a meeting of shareholders may
by means of a proxy appoint a proxy holder, or one or more alternate proxy
holders, who need not be shareholders, as his nominee to attend and act at the
meeting in the manner. to the extent and with the authority conferred by time
proxy.
(b) A proxy shall be executed by the shareholder or his attorney
authorized in writing or, if tile shareholder is a body corporate, by an officer
or attorney thereof duly authorized and shall conform with the requirements of
the Act.
10.15 Revocation of Proxies
A shareholder may revoke a proxy
(i) by depositing an instrument in writing executed by him or by his
attorney authorized in writing.
(A) at the registered office of the Corporation at any time up to and
including the last business day preceding the day of the meeting,
or any adjournment thereof, at which the proxy is to be used, or
(B) with the chairman of the meeting on the day of the meeting or an
adjournment thereof; or
(ii) in any other manner permitted by law,
10.16 Deposit of Proxies
The directors may by resolution fix a time not exceeding forty-eight (48)
hours, excluding Saturdays and holidays, preceding any meeting or adjourned
meeting of shareholders before which time proxies to he used at that meeting
must be deposited with the Corporation or an agent thereof, and any period of
time so fixed shall he specified in the notice calling the meeting.
10.17 Joint Shareholders
Where two (2) or more persons hold shares jointly, one of those holders
present at a meeting of shareholders may' in the absence of tile others votes
the shares, but if two (2) or more of those persons are present, in person or by
proxy, they shall vote as one on the shares jointly held by them.
10.18 Chairman and Secretary
(a) The chairman of any meeting of shareholders shall he the first
mentioned of such of tile following officers as have been appointed and who is
present at the meeting: Chairman of the Board. President, Managing Director or
in the absence of the aforesaid officers, a Vice-President who is a director, If
there is no such officer or if at a meeting none of them is present within
fifteen (15) minutes after the time appointed for the holding of the meeting of
the shareholders present shall choose a person from their number to be the
chairman.
(b) The Secretary shall be time secretary of any meeting of
shareholders, hut if the Secretary is absent the chairman shall appoint some
person who need not he a shareholder to act as secretary of the meeting.
10.19 Scrutineers
The chairman of any meeting of shareholders may appoint one or more persons
to act as scrutineers at such meeting and in that capacity to report to the
chairman such information as to attendance, representation, voting and other
matters at the meeting as the chairman shall direct.
10.20 Votes to Govern
At all meetings of shareholders every question shall unless otherwise
required by law, the articles, the by-laws or a unanimous shareholder agreement
be determined by the majority of the votes duly east on the question. In case of
an equality of votes, the chairman presiding at the meeting shall not have a
second or casting vote in addition to time vote or votes to which he may be
entitled as a shareholder,
10.21 Show of Hands
At all meetings of shareholders, every question submitted to time meeting
shall be decided by a show of hands unless a ballot thereon is required by the
chairman or is demanded by a shareholder or proxy holder present and entitled to
vote. Upon a show of hands every person present who is either a shareholder
entitled to vote or the duly appointed proxy holder of such a shareholder shall
have one vote. Before or after a vote by a show of hands has been taken upon any
question, the chairman may require, or any shareholder or proxy holder present
and entitled to vote may demand, a ballot thereon. Unless a ballot is demanded,
an entry in the minutes of a meeting of shareholders to the effect that the
chairman declared a motion to be carried is admissible in evidence as prima
facie proof of the fact without proof of the number or proportion of the votes
recorded in favour of or against the motion.
10.22 Ballots
If a ballot is required by the chairman of time meeting or is duly demanded
by any shareholder or proxy holder and the demand is not withdrawn, a ballot
upon time question shall be taken in such manner and at such time as the
chairman of the meeting shall direct.
10.23 Votes on Ballots
Unless the articles otherwise provide upon a ballot each shareholder who is
present in person or represented by proxy shall be entitled to one vote for each
share in respect of which he is entitled to vote at the meeting and the result
of the ballot shall be the decision of the meeting
10.24 Adjournment
The chairman presiding at a meeting of shareholders may with the consent of
the meeting and subject to such conditions as the meeting decides, adjourn the
meeting from time to time and from place to place and, subject to the provisions
of the Act and subsection 10.08(b) of this by-law no notice of such adjournment
or of time adjourned meeting need be given to time shareholders. Subject to the
provisions of time. At any business may be brought before or dealt with at any
adjourned meeting which might have been brought before or dealt with at the
original meeting in accordance with the notice calling such meeting.
10.25 Quorum
At any meeting of shareholders, two (2) individuals present in person, each
of whom is either a shareholder entitled to attend and vote at such meeting or
time proxy holder of such a shareholder appointed by means of a valid proxy,
shall be a quorum for the choice of a chairman (if required) and for the
adjournment of the meeting. For all other purposes a quorum for any meeting of
shareholders (unless a greater number of shareholders and/or a greater number of
shares are required by the Act or by the articles or the by-laws) shall be two
(2) individuals present in person, each of whom is either a shareholder entitled
to attend and vote at such meeting or the proxy holder of such a shareholder
appointed by means of a valid proxy, holding or representing by proxy not less
than 5% of the total number of the issued shares of the Corporation for the time
being enjoying voting rights at such meeting.
10.26 Only One Shareholder
Where the Corporation has only one shareholder, or only one holder of any
class or series of shares that shareholder present in person or by proxy
constitutes a meeting.
ARTICLE ELEVEN
SHARES AND TRANSFERS
11.01 Issuance
Subject to the provisions of the Act and the articles, shares of tile
Corporation may be issued at such time and to such persons and for such
consideration as the directors may by resolution determine, but no share shall
be issued until it is filly paid in money or in property or past service that is
not less in value than the fair equivalent of the money that the Corporation
would have received if time share had been issued for money.
11.02 Commissions
The directors 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.
11.03 Share Certificates
(a) Every shareholder is entitled at his option to a share certificate
or to a non-transferable written acknowledgment of his right to obtain a share
certificate from the Corporation stating time number and class of shares and the
designation of any series of shares held by him.
(b) Share certificates and acknowledgements of a shareholder's right to
a share certificate, respectively, shall (subject to compliance with the
provisions of tile Act) be in such form as the directors may from time to time
by resolution approve and, unless otherwise provided by' resolution of the
hoard, such certificates amid acknowledgements shall be signed by
(i) the Chairman of the Board, the President or a Vice-President, and
(ii) the Secretary or an Assistant Secretary holding office at the time
of signing,
and notwithstanding any change in the persons holding such offices between the
time of actual signing and the issuance of any certificate or acknowledgement
and notwithstanding that the Chairman of the Board, the President,
Vice-President. Secretary' or Assistant Secretary signing may not have held
office at the date of the issuance of such certificate or acknowledgment, any
such certificate or acknowledgement so signed shall he valid and binding upon
the Corporation.
(c) Notwithstanding the provisions of section 2.04 of this by-law the
signature of the Chairman of the Board, the President or a Vice-President may be
printed, engraved, lithographed or otherwise mechanically reproduced upon
certificates and acknowledgements for shares of the Corporation, and
certificates amid acknowledgements so signed shall be deemed to have been
manually signed by the Chairman of the Board, the President or a Vice-President
whose signature is so printed, engraved, lithographed or otherwise mechanically
reproduced thereon and shall be as valid as if they had been signed manually.
Where the Corporation has appointed a transfer agent pursuant to subsection
11.05(a) of this by-law the signature of the Secretary or Assistant Secretary
may also be printed, engraved, lithographed or otherwise mechanically
reproduced, and when countersigned by or on behalf of a transfer agent share
certificates and acknowledgements so signed shall be as valid as if they had
been signed manually.
11.04 Transfer Agent
(a) For each class of securities and warrants issued by it the Corporation
may, from time to time, appoint or remove
(i) a trustee transfer agent or other agent to keep the securities register
and tile register of transfers and one or more persons or agents to keep branch
registers; and
(ii) a registrar, trustee or agent to maintain a record of issued security
certificates and warrants; and the person or persons appointed pursuant to this
subsection shall be referred to in this by-law as a "transfer agent".
(b) Subject to compliance with the provisions of the Act, the directors may
by resolution provide for time transfer and tile registration of transfers of
shares of tile Corporation in one or more places. A transfer agent shall keep
all necessary books amid registers of tile Corporation for the registration and
transfer of such shares of the Corporation. All share certificates issued by the
Corporation for shares for which a transfer agent has been appointed as
aforesaid shall be countersigned by or on behalf of the said transfer agent.
11.05 Transfer of Shares
Shares of the Corporation shall he transferable on the books of the
Corporation in accordance with the applicable provisions of the Act.
11.06 Defaced. Destroyed. Stolen or lost Certificates
Where the owner of a share or shares of the Corporation claims that time
certificate for such share or shares has been lost, apparently destroyed or
wrongfully taken, time Corporation shall issue a new share certificate in place
of the original share certificate if such owner
(i) so requests before the Corporation has notice that shares represented by
the original certificate have been acquired by a bona fide purchaser:
(ii) flies with the Corporation an indemnity bond sufficient in the
Corporation's opinion to protect the Corporation and any transfer agent from any
loss that it or any of them may suffer by complying with the request to issue a
new share certificate: and
(iii) satisfies army other reasonable requirements imposed by the
Corporation.
11.07 Joint Shareholders
If two (2) or more persons are registered as joint holders of any share or
shares, the Corporation is not bound to issue more than one share certificate in
respect thereof and delivery of a share certificate to one of such persons is
sufficient delivery to all of them.
11.08 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 or register of transfers 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 or any of its transfer agents.
ARTICLE TWELVE
DIVIDENDS
12.01 Declaration of Dividends
Subject to the provisions of the Act and the articles, the directors may
from time to time declare and the Corporation may pay dividends to the
shareholders according to their respective rights and interests in the
Corporation. Dividends maybe paid in money or property or by issuing fully paid
shares of the Corporation or options or rights to acquire filly paid shares of
the Corporation.
12.02 Joint Shareholders
(a) In ease several persons are registered as joint holders of any share or
shares of the Corporation, the cheque for any dividend payable to such joint
holders shall, unless such joint holders otherwise direct, be made payable to
the order of all such joint holders and if more than one address appears on the
hooks of the Corporation in respect of such joint holding the cheque shall he
mailed to the first address so appearing.
(b) In case several persons are registered as the joint holders of any share
or shares of time Corporation any one of such persons may give effectual
receipts for all dividends and payments on account of dividends on such shares
and or payments in respect of time redemption of such share.
12.03 Dividends from Funds Derived from Operations
Subject to the provisions of the Act, the Corporation may if
(i) for the time being it carries oil as its principal business the business
of operating a producing mining, gas or oil property owned and controlled by it:
(ii) at least seventy-five per cent (75%) of its assets are of a wasting
character; or
(iii) it was incorporated for the purpose of acquiring the assets or a
substantial part of the assets of a body corporate and administering such assets
for the purpose of converting them into cash and distributing the cash among the
shareholders; declare and pay dividends out of the funds derived from its
operations notwithstanding that the value of the net assets of the Corporation
may be thereby reduced to less than its stated capital of all classes if the
payment of the dividends does not reduce the value of its remaining assets to an
amount insufficient to meet all the liabilities of the Corporation, exclusive of
its stated capital of all classes.
ARTICLE THIRTEEN
RECORD DATES
13.01 Fixing Record Dates
For the purpose of determining shareholders
(i) entitled to receive payment of a dividend;
(ii) entitled to participate in a liquidation or distribution: or
(iii) for any other purpose except the right to receive notice of or
to vote at a meeting, the directors may fix in advance a date as
the record date for such determination of shareholders but such
record date shall not precede by more than fifty (50) days the
particular action to be taken.
13.02 No Record Date Fixed
If no record date is fixed pursuant to section 13.01 hereof time record
date for the determination of shareholders for any purpose other than to
establish a shareholder's right to receive notice of a meeting or to vote shall
beat the close of business on the day on which the directors pass the resolution
relating thereto.
13.03 Notice of Record Date
If a record date is fixed 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 thereof shall he given not less than seven
days before the date so fixed.
(i) by advertisement in a newspaper published or distributed in the
place where the Corporation has its registered office and in each
place in Canada where it has a transfer agent or where a transfer
of its shares may be recorded: and
(ii) by written notice to each stock exchange in Canada on which the
shares of the Corporation are listed for trading.
13.04 Effect of Record Date
In every case where a record date is fixed pursuant to section 13.01 hereof
ill respect of tile payment of a dividend, the making of a liquidation
distribution or the issue of warrants or other rights to subscribe for shares or
other securities, only shareholders of record at the record date shall he
entitled to receive such dividend, liquidation distribution, warrants or other
rights.
ARTICLE FOURTEEN
CORPORATE RECORDS AND INFORMATION
14.01 Keeping of Corporate Records
(a) The Corporation shall prepare and maintain, at its registered office or
at such other place in Ontario designated by the directors:
(i) the articles and the by-laws and all amendments thereto.
(ii) minutes of meetings and resolutions of shareholders;
(iii) a register of directors in which are set out the names and
residence addresses, while directors, including the street and
number, if any, of all persons who are or have been directors
with the several dates on which each became or ceased to be a
director;
(iv) a securities register in which are recorded the securities issued
by the Corporation in registered form, showing with respect to
each class or series of securities
(A) the names, alphabetically arranged, of persons who,
(1) are or have been within six years registered as
shareholders and the address including the street and
number, if any, of every such person while a holder,
and the number and class of shares registered in the
name of such holder,
(2) are or have been within six years registered as holders
of debt obligations of the Corporation and the address
including the street and number, if any, of every such
person while a holder, and time class or series and
principal amount of the debt obligations registered in
the name of such holder, or
(3) are or have been within six years registered as holders
of warrants of the Corporation, other than warrants
exercisable within one year from tile date of issue and
the address including the street and number, if any, of
every such person while a registered holder, amid the
class or series and number of warrants registered in
the name of such holder; and
(B) the date and particulars of the issue of each security and
warrants.
(b) In addition to the records described in subsection (a) of this section,
the Corporation shall prepare and maintain adequate accounting records amid
records containing minutes of meetings and resolutions of time directors amid
any committee. The records described in this subsection shall be kept at the
registered office of the Corporation or at such other place in Ontario as is
designated by the directors and shall be open to examination by any director
during normal business hours of the Corporation.
(c) The Corporation shall also cause to he kept a register of transfers in
which all transfers of securities issued by the Corporation in registered form
and the date and other particulars of each transfer shall beset out.
14.02 Access to Corporate Records
Shareholders and creditors of the Corporation and their agents and legal
representatives may examine the records referred to in subsection 14.01(a) of
this by-law during the usual business hours of the Corporation and may take
extracts there from, free of charge. If tile Corporation is an offering
corporation, any other person may examine such records during the usual business
hours of the Corporation and may take extracts there from upon payment of a
reasonable fee.
14.03 Copies of Certain Corporate Records
A shareholder is entitled upon request and without charge to one copy of
the articles and by-laws.
14.04 Report to Shareholders
A copy of the financial statements of the Corporation, a copy of the
auditor's report, if any, to the shareholders and a copy of any further
information respecting the financial position of the Corporation and the results
of its operations required by the articles or the by-laws which are to he placed
before an annual meeting of shareholders pursuant to the Act shall be sent to
each shareholder not less than twenty-one (21) days or before the signing of a
resolution in accordance with the Act in lieu of such annual meeting, except to
a shareholder who has informed the Corporation in writing that he does not wish
to receive a copy of those documents,
14.05 No Discovery of Information
Except as specifically provided for in this Article, and subject to all
applicable law, no shareholders shall be entitled to or to require discovery of
any information respecting any details or conduct of the Corporation's business
which in the opinion of the directors would be inexpedient or inadvisable in the
interests of the Corporation to communicate to the public.
14.06 Conditions for Inspection
The board may from time to time by resolution determine whether and to what
extent and at what times and place and under what conditions or regulations the
accounts amid books of the Corporation or any of them shall he open to the
inspection of shareholders and no shareholder shall have any right to inspect
any account or book or document of the Corporation, except as specifically
provided for in this Article or as otherwise provided for by statute or as
authorized by resolution of time board.
ARTICLE FIFTEEN
NOTICES
15.01 Method of Giving
Any notice, communication or other document to be sent or give by the
Corporation to a shareholder, director, officer, or auditor of the Corporation
under any provision of the Act, the articles or by-laws shall be sufficiently
and given if delivered personally to tile person to whom it is to he given or if
delivered to his last address as shown in the records of the Corporation or its
transfer agents or if mailed by prepaid ordinary mail or air mail in a sealed
envelope addressed to him at his last address as shown on the records of the
Corporation or its transfer agents or if sent by any means of wire or wireless
or any other form of transmitted or recorded communication. The Secretary may
change the address on the records of the Corporation of any shareholder in
accordance with any information believed by him to be reliable. A notice,
communication or document so delivered shall he deemed to have been sent and
given when it is delivered personally or delivered at the address aforesaid. A
notice, communication or document so mailed shall be deemed to have been sent
and given on the day it is deposited in a post office or public letter box and
shall be deemed to he received by the addressee on the fifth day after such
mailing. A notice sent by any means of wire or wireless or any other form of
transmitted or recorded communication shall be deemed to have been given when
delivered to the appropriate communication corporation or agency or its
representative for dispatch.
15.02 Shares Registered in More Than One Name
All notices or other documents with respect to any shares of the
Corporation registered in the names of two or more persons as joint shareholders
shall he addressed to all of such persons and sent to the address or addresses
for such persons as shown in the records of the Corporation or its transfer
agent but notice to one of such persons shall he sufficient notice to all of
them,
15.03 Persons Becoming Entitled by Operation of Law
Subject to the provisions of the Act every person who by operation of law,
transfer or by any other means whatsoever shall become entitled to any share or
shares of the Corporation shall he hound by every notice or other document in
respect of such share or shares which previous to his name and address being
entered on the records of the Corporation shall be duly given to the person or
persons from whom he derives his title to such share or shares.
15.04 Deceased Shareholder
Any notice or document delivered or sent by mail or left at the address of
any shareholder as such address appears on the records of the Corporation shall
notwithstanding that such shareholder is then deceased and whether or not the
Corporation has notice of his death he deemed to have been duly given or served
in respect of the shares whether held solely or jointly with other persons by
such shareholder until some other person is entered in his stead on the records
of the Corporation as the holder or one of the joint holders thereof amid such
service of such notice shall for all purposes be deemed a sufficient service of
such notice or document on his heirs, executors or administrators and on all
persons, if any, interested with him in such shares,
15.05 Signature to Notice
The signature, if any, to any notice to he given by the Corporation may be
written, stamped, typewritten., printed or otherwise mechanically reproduced in
whole or in part.
15.06 Proof of Service
A certificate of the Chairman of the Board, the President, a
Vice-President, the Secretary or the Treasurer or of any other officer in office
at the time of the making of the certificate or of a transfer officer of any
transfer agent or branch transfer agent of shares of army class of the
Corporation as to facts in relation to the delivery or mailing or service of any
notice or other document to any shareholder, director, officer or auditor or
publication of any notice or other document shall, in the absence of evidence to
the contrary be proof thereof
15.07 Computation of Time
Where a given number of days' notice or notice extending over any period is
required to he given, the number of days or period shall be computed in
accordance with the definition of "day" contained in section 1.01 of this
by-law.
15.08 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 provisions
of the Act, 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 he in writing, except a
waiver of notice of a meeting of shareholders or of the board which maybe given
in any manner.
ARTICLE SIXTEEN
REPEAL OF BY-LAW NO. I
16.01 Repeal
Without affecting the validity of any actor or thing done there under,
By-law No. I of time Corporation is hereby repealed.
PASSED AND MADE this 29th day of June 1998.
/s/ Michael P. Kraft, President
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Michael P. Kraft, President