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Exhibit 3(ii)
BRACKNELL CORPORATION
BY-LAW NO. 1
A by-law relating generally to the conduct of the affairs of the
Corporation.
INTERPRETATION
1. In this by-law and all other by-laws of the Corporation,
unless the context otherwise specifies or requires:
(a) "Act" means the Business Corporations Act, 1982, S.O.
1982, c. 4 as from time to time amended and every statute that may be
substituted therefor and, in the case of such substitution, any references in
the by-laws of the Corporation to provisions of the Act shall be read as
references to the substituted provisions therefor in the new statute or
statutes;
(b) "Regulations" means the Regulations made under the
Act as from time to time amended and every regulation that may be substituted
therefor and, in the case of such substitution, any references in the by-laws of
the Corporation to provisions of the Regulations shall be read as references to
the substituted provisions therefor in the new regulations;
(c) "by-law" means any by-law of the Corporation from
time to time in force and effect;
(d) all terms which are contained in the by-laws and
which are defined in the Act or the Regulations shall have the meaning
respectively given to such terms in the Act or the Regulations; and
(e) the singular shall include the plural and the plural
shall include the singular; the masculine shall include the feminine; and the
word "person" shall include bodies corporate, corporations, companies,
partnerships, syndicates, trusts and any number or aggregate of persons.
SEAL
2. The Corporation may but need not have a Corporate seal. Any
corporate seal adopted for the Corporation shall be such as the directors may by
resolution from time to time approve.
MEETINGS OF DIRECTORS
3. Place of Meetings. Meetings of the directors may be held
within or outside Ontario and it shall not be necessary in any financial year of
the Corporation to hold a majority of the meetings of the directors at a place
within Canada.
4. Notice. A meeting of directors may be convened by the Chairman
of the Board, the President if he is a director, a Vice-President who is a
director or the directors at any time and the Secretary, when directed or
authorized by any of such officers or the directors, shall convene a meeting of
directors. Subject to subsection 126(8) of the Act the notice of any such
meeting need not specify the purpose of or the business to be transacted at the
meeting. Notice of any such meeting shall be served in the manner specified in
paragraph 21 of this by-law not less than two days (exclusive of the day on
which
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the notice is delivered or sent but inclusive of the day for which notice is
given) before the meeting is to take place; provided always that a director may
in any manner and at any time waive notice of a meeting of directors and
attendance of a director at a meeting of directors shall constitute a waiver of
notice of the meeting except where a director attends a meeting for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called; provided further that meetings of directors may
be held at any time without notice if all the directors are present (except
where a director attends a meeting for the express purpose of objecting to the
transaction of any business an the grounds that the meeting is not lawfully
called) or if all of the absent directors waive notice before or after the date
of such meeting.
If the first meeting of the directors following the election
of directors by the shareholders is held immediately thereafter, then for such
meeting or for a meeting of the directors at which a director is appointed to
fill a vacancy in the board, no notice shall be necessary to the newly elected
or appointed directors or director in order to legally constitute the meeting,
provided that a quorum of the directors is present.
5. Quorum. A majority of the authorized number of directors shall
form a quorum for the transaction of business and, notwithstanding any vacancy
among the directors, a quorum of directors may exercise all the powers of
directors. No business shall be transacted at a meeting of directors unless a
quorum of the directors is present and, except as otherwise permitted by the
Act, a majority of directors present are resident Canadians.
6. Chairman and Voting. The Chairman of the Board shall, when
present, preside at all meetings of the directors. If the Chairman of the Board
is absent from any meeting then the President, if he is a director, shall
preside at such meeting. If the President is not a director or if both the
Chairman of the Board and the President are absent from any meeting, a director
designated by the directors present at the meeting shall preside at such
meeting.
Questions arising at any meeting of the board of directors
shall be decided by a majority of votes. In case of an equality of votes the
chairman of the meeting in addition to his original vote shall have a second or
casting vote.
SUBMISSION OF CONTRACTS OR TRANSACTIONS TO
SHAREHOLDERS FOR APPROVAL
7. The board of directors in its discretion may submit any
contract, act or transaction for approval or ratification at any annual meeting
of the shareholders or at any special meeting of the shareholders called for the
purpose of considering the same and, subject to the provisions of section 132 of
the Act any such contract, act or transaction that shall be approved or ratified
or confirmed by a resolution passed by a majority of the votes cast at any such
meeting (unless any different or additional requirement is imposed by the Act or
by the Corporation's articles or any other by-law) shall be as valid and as
binding upon the corporation and upon all the shareholders as though it had been
approved, ratified or confirmed by every shareholder of the Corporation.
FOR THE PROTECTION OF DIRECTORS AND OFFICERS
8. Interests of Directors and Officers. In supplement of and not
by way of limitation upon any rights conferred upon directors and officers by
section 132 of the Act, it is declared that no director or officer shall be
disqualified from his office by, or vacate his office by reason of, holding any
office or
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place of profit under the Corporation or under any body corporate in which the
Corporation shall be a shareholder or by reason of being otherwise in any way
directly or indirectly interested in or contracting with the Corporation either
as vendor, purchaser or otherwise or being concerned in any contract or
arrangement made or proposed to be entered into with the Corporation in which he
is in any way directly or indirectly interested either as vendor, purchaser or
otherwise nor shall any director or officer be liable to account to the
Corporation or any of its shareholders or creditors for any profit arising from
any such office or place of profit; and, subject to the provisions of section
132 of the Act, no contract or arrangement entered into by or on behalf of the
Corporation in which any director or officer shall be in any way directly or
indirectly interested shall be avoided or voidable and no director or officer
shall be liable to account to the Corporation or any of its shareholders or
creditors for any profit realized by or from any such contract or arrangement by
reason of any fiduciary relationship. A director or officer of the Corporation
who is a party to a material contract or transaction or proposed material
contract or transaction with the corporation, or 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 the nature and extent of his interest at the time and in the
manner provided in the Act. Except as provided in the Act, no such director of
the Corporation shall vote on any resolution to approve such contracts or
transactions but each such director may be counted to determine the presence of
a quorum at the meeting of directors where such vote is being taken.
9. Liability of Directors and Officers. Except as otherwise
provided in the Act, no director or officer for the time being of the
Corporation Shall be liable for the acts, receipts, neglects or defaults of any
other director or officer or employee or for joining in any receipt or act for
conformity or for any loss, damage or expense happening to the Corporation
through the insufficiency or deficiency of title to any property acquired by the
Corporation or for or an behalf of the Corporation or for the insufficiency or
deficiency of any security in or upon which any of the moneys of or belonging to
the Corporation shall be placed out or invested or for any loss or damage
arising from the bankruptcy, insolvency or tortious act of any person, including
any person with whom or which any moneys, securities or effects shall be lodged
or deposited or for any loss, conversion, misapplication or misappropriation of
or any damage resulting from any dealings with any moneys, securities or other
assets belonging to the Corporation or for any other loss, damage or misfortune
whatever which may happen in the execution of the duties of his respective
office or trust or in relation thereto unless the same shall happen by or
through his failure to exercise the powers and to discharge the duties of his
office honestly and in good faith with a view to the best interests of the
Corporation and in connection therewith to exercise the care, diligence and
skill that a reasonably prudent person would exercise in comparable
circumstances. The directors for the time being of the Corporation shall not be
under any duty or responsibility in respect of any contract, act or transaction
whether or not made, done or entered into in the name or on behalf of the
Corporation, except such as shall have been submitted to and authorized or
approved by the board of directors. If any director or officer of the
Corporation Shall be employed by or shall perform services for the Corporation
otherwise than as a director or officer or shall have an interest in a person
which is employed by or performs services for the Corporation, the fact of his
being a shareholder, director or officer of the Corporation shall not disentitle
such director or officer or such person, as the case may be, from receiving
proper remuneration for such services.
INDEMNITIES TO DIRECTORS AND OFFICERS
10. Subject to the provisions of section 136 of the Act, the
Corporation shall indemnify a director or officer, a former director or officer,
or a person who acts or acted at the Corporation's request as a director or
officer of a body corporate of which the Corporation is or was a shareholder or
creditor, 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
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director or officer of the Corporation or such body corporate, if (a) he acted
honestly and in good faith with a view to the best interests of the Corporation;
and (b) in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, he had reasonable grounds for believing that his
conduct was lawful. The Corporation shall also indemnify any such person in such
other circumstances as the Act or law permits or requires. Nothing in this
by-law shall limit the right of any person entitled to indemnity to claim
indemnity apart from the provisions of this by-law to the extent permitted by
the Act or law.
SHAREHOLDERS' MEETINGS
11. Annual Meeting. Subject to the provisions of section 94 of the
Act, the annual meeting of the shareholders shall be held on such day in each
year and at such time as the board of directors may determine and shall be held
at any place in or outside Ontario as the directors determine or, in the absence
of such determination, at the place where the registered office of the
corporation is located.
12. Special Meetings. Special meetings of the shareholders may be
convened by order of the Chairman of the Board, the President if he is a
director, a Vice-President who is a director or by the board of directors at any
date and time and shall be held at any place in or outside Ontario as the
directors determine or, in the absence of such determination, at the place where
the registered office of the Corporation is located.
13. Notice. A printed, written or typewritten notice stating the
day, hour and place of meeting shall be given by serving such notice on each
shareholder entitled to vote at such meeting, on each director and on the
auditor of the Corporation in the manner specified in paragraph 21 of this
by-law, not less than twenty-one days but not more than fifty days (in each
case, subject to clause 1(1)13 of the Act, exclusive of the day on which the
notice is delivered or sent and inclusive of the day for which notice is given)
before the date of the meeting. Notice of a meeting at which special business,
as defined in section 96(5) of the Act, is to be transacted shall state or be
accompanied by a statement of (a) the nature of that business in sufficient
detail to permit the shareholder to form a reasoned judgment thereon, and (b)
the text of any special resolution or by-law to be submitted to the meeting.
14. Omission of Notice. The accidental omission to give notice of
any meeting or any irregularity in the notice of any meeting or the non-receipt
of any notice by any shareholder or shareholders, director or directors or the
auditor of the Corporation shall not invalidate any resolution passed or any
proceedings taken at any meeting of shareholders.
15. Chairman. The Chairman of the Board shall, when present,
preside at all meetings of the shareholders. If the Chairman of the Board is
absent from any meeting then the President, if he is a director, shall preside
at such meeting. In the event that the President is not a director or that both
the Chairman of the Board and the President are absent from any meeting, the
persons who are present and entitled to vote shall choose another director as
chairman of the meeting and if no director is present or if all the directors
present decline to take the chair then the persons who are present and entitled
to vote shall choose one of their number to be chairman.
16. Votes. Every question submitted to any meeting of shareholders
shall be decided in the first instance by a show of hands unless a person
entitled to vote at the meeting has demanded a ballot and in the case of an
equality of votes the chairman of the meeting shall both on a show of hands and
on a ballot have a second or casting vote in addition to the vote or votes to
which he may be otherwise entitled.
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At any meeting 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.
A ballot may be demanded either before or after any vote by
show of hands by any person entitled to vote at the meeting. If at any meeting a
ballot is demanded on the election of a chairman or on the question of
adjournment it shall be taken forthwith without adjournment. If at any meeting a
ballot is demanded on any other question or as to the election of directors, the
vote shall be taken by ballot in such manner and either at once, later in the
meeting or after adjournment as the chairman of the meeting directs. The result
of a ballot shall be deemed to be the resolution of the meeting at which the
ballot was demanded. A demand for a ballot may be withdrawn.
Where two or more persons hold the same share or shares
jointly, one of those holders present at a meeting of shareholders may, in the
absence Of the other or others, vote the share or shares but if two or more of
those persons who are present, in person or by proxy, vote, they shall vote as
one on the share or shares jointly held by them.
17. Proxies. The directors may from time to time make regulations
regarding the lodging of proxies at some place or places other than the place at
which a meeting or adjourned meeting of shareholders is to be held and for
particulars of such proxies to be cabled or telegraphed or sent by telex or
telecopier or in writing before the meeting or adjourned meeting to the
Corporation or any agent of the Corporation for the purpose of receiving such
particulars and providing that proxies so lodged may be voted upon as though the
proxies themselves were produced at the meeting or adjourned meeting and votes
given in accordance with such regulations shall be valid and shall be counted.
The chairman of any meeting of shareholders may, subject to any regulations made
as aforesaid, in his discretion accept telegraphic or cable or telex or
telecopier or written communication as to the authority of any person claiming
to vote on behalf of and to represent a shareholder notwithstanding that no
proxy conferring such authority has been lodged with the Corporation, and any
votes given in accordance with such telegraphic or cable or telex or telecopier
or written communication accepted by the chairman of the meeting shall be valid
and shall be counted.
18. Adjournment. The chairman of any meeting may with the consent
of the meeting adjourn the same from time to time to a fixed time and place and
no notice of such adjournment need be given to the shareholders unless the
meeting is adjourned by one or more adjournments for an aggregate of thirty days
or more in which case subject to subsection 96(4) of the Act notice of the
adjourned meeting shall be given as for an original meeting. Any business may be
brought before or dealt with at any adjourned meeting for which no notice is
required which might have been brought before or dealt with at the original
meeting in accordance with the notice calling the same.
19. Quorum. A quorum at any meeting of shareholders (unless a
greater number of persons are required to be present or a greater number of
shares are required to be represented by the Act or by the articles or any other
by-law) shall be persons present not being less than two in number and holding
or representing less than twenty per cent of the total number of the issued
shares of the Corporation for the time being entitling the holders thereof to
vote at such meeting.
No business shall be transacted at any meeting unless the
requisite quorum be present at the time of the transaction of such business. If
a quorum is not present at the time appointed for a meeting of shareholders or
within such reasonable time thereafter as the shareholders present may
determine, the persons present and entitled to vote may adjourn the meeting to a
fixed time and place but may not transact any other business and the provisions
of paragraph 18 with regard to notice shall apply to such adjournment.
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SHARES
20. Certificates. Share certificates and the form of stock
transfer power on the reverse side hereof shall (subject to section 56 of the
Act) be in such form as the board of directors may by resolution approve and
such Certificates shall be signed by the Chairman of the Board or the President
or a Vice-President and the Secretary or an Assistant Secretary holding office
at the time of signing.
The signature of the Chairman of the Board or the President or
a Vice-President may be printed, engraved, lithographed or otherwise
mechanically reproduced upon certificates for shares of the Corporation.
Certificates so signed shall be deemed to have been manually signed by the
Chairman of the Board or the President or the Vice-President whose signature is
so printed, engraved, lithographed or otherwise mechanically reproduced thereon
and shall be as valid for all intents and purposes as if they had been signed
manually. Where the Corporation has appointed a registrar, transfer agent or
branch transfer agent or other authenticating agent for the shares (or for the
shares of any class or classes) of the Corporation the signature of the
Secretary or Assistant Secretary may also be printed, engraved, lithographed or
otherwise mechanically reproduced on certificates representing the shares (or
the shares of the class or classes in respect of which any such appointment has
been made) of the Corporation and when countersigned by or on behalf of a
registrar, transfer agent, branch transfer agent or other authenticating agent
such certificates so signed shall be as valid for all intents and purposes as if
they had been signed manually. A share certificate containing the signature of a
person which is printed, engraved, lithographed or otherwise mechanically
reproduced thereon may be issued notwithstanding that the person has ceased to
be an officer of the Corporation and shall be as valid as if he were an officer
at the date of its issue.
NOTICES
21. Service. Any notice or other document required by the Act, the
Regulations, the articles or the by-laws to be sent to any shareholder or
director or to the auditor shall be delivered personally or sent by prepaid mail
or by telegram or cable or telex or telecopy to any such shareholder at his
latest address as shown in the records of the Corporation or its transfer agent
and to any such director at his latest address as shown in the records of the
Corporation or the most recent notice filed under the Corporations Information
Act, whichever is the most current and to the auditor at his business address;
provided always that notice may be waived or the time for the notice may be
waived or abridged at any time with the consent in writing of the person
entitled thereto. If a notice or document is sent to a shareholder by prepaid
mail in accordance with this paragraph and the notice or document is returned on
three consecutive occasions because the shareholder cannot be found, it shall
not be necessary to send any further notices or documents to the shareholder
until he informs the Corporation in writing of his new address.
22. Securities Registered in More Than One Name. All notices or
other documents with respect to any shares registered in more than one name
shall be given to whichever of such persons is named first in the records of the
Corporation and any notice or other document so given shall be sufficiently
given to all of the holders of such shares.
23. Persons Becoming Entitled by Operation of Law. Subject to
Section 67 of the Act, every person who by operation of law, transfer or any
other means whatsoever shall become entitled to any share or shares of the
Corporation shall be bound by every notice or other document in respect of such
share or shares which, previous to his name and address being entered in the
records of the Corporation, shall have been duly given to the person or persons
from whom he derives his title to such share or shares.
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24. Deceased Shareholders. Subject to section 67 of the Act, any
notice or other document delivered or sent by post, telegram or telex or
telecopy or left at the address of any shareholder as the same appears in the
records of the Corporation shall, notwithstanding that such shareholder be then
deceased, and whether or not the Corporation has notice of his decease, be
deemed to have been duly served in respect of the shares held by such
shareholder (whether held solely or with any other person or persons) until some
other person be entered in his stead in the records of the Corporation as the
holder or one of the holders thereof and such service 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 through him or with him
in such shares.
25. Signature to Notices. The signature of any director
or officer of the Corporation to any notice or document to be given by the
Corporation may be written, stamped, typewritten or printed or partly written,
stamped, typewritten or printed.
26. Computation of Time. Where a given number of days'
notice or notice extending over a period is required to be given under any
provisions of the articles or by-laws of the Corporation, the day of service or
posting of the notice or document shall not, unless it is otherwise provided, be
counted in such number of days or other period.
27. Proof of Service. With respect to every notice or
other document sent by post it shall be sufficient to prove that the envelope or
wrapper containing the notice or other document was properly addressed as
provided in paragraph 21 of this by-law and put into a Post Office or into a
letter box. A certificate of an officer of the Corporation 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 any class or the Corporation as to facts
in relation to the sending or delivery of any notice or other document to any
shareholder, director, officer or auditor or publication of any notice or other
document shall be conclusive evidence thereof and shall be binding on every
shareholder, director, officer or auditor of the Corporation, as the case may
be.
CHEQUES, DRAFTS AND NOTES
28. All cheques, drafts or orders for the payment of money and all
notes and acceptances and bills of exchange shall be signed by such officer or
officers or person or persons, whether or not officers of the Corporation, and
in such manner as the board of directors may from time to time designate by
resolution.
EXECUTION OF INSTRUMENTS
29. (1) Contracts, documents or instruments in writing
requiring the signature of the Corporation may be signed by
(a) any two of the Chairman of the Board, the President,
a Vice-President, the Secretary and the Treasurer;
(b) any two directors; or
(c) any one of the aforementioned officers together with
any one director;
and all contracts, documents and instruments in writing so signed shall be
binding upon the Corporation without any further authorization or formality.
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29. (2) The board of directors shall have power from time to
time to
(a) appoint any officer or officers, or any person or
persons, on behalf of the Corporation either to sign
contracts, documents and instruments in writing
generally or to sign specific contracts, documents or
instruments in writing; or
(b) authorize the manner in which and the person or
persons by whom any particular contracts, documents
or instruments in writing or any class thereof (which
class may include, without limitation, contracts,
documents or instruments in writing in the ordinary
course of business of an operating division of the
Corporation) may or shall be signed.
29. (3) The corporate seal of the Corporation, if any, may be
affixed to contracts, documents and instruments in writing signed as aforesaid
or by any officer or officers, person or persons, appointed as aforesaid by
resolution of the board of directors but any such contract, document or
instrument is not invalid merely because the corporate seal, if any, is not
affixed thereto.
29. (4) The term "contracts, documents or instruments in
writing" as used in this by-law shall include deeds, 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 and conveyances, transfers and assignments
of shares, share warrants, stocks, bonds, debentures or other securities and all
paper writings.
29. (5) In particular without limiting the generality of the
foregoing
(a) any two of the Chairman of the Board, the President,
a Vice-President, the Secretary and the Treasurer;
(b) any two directors; or
(c) any one of the aforementioned officers together with
any one director;
shall have authority to sell, assign, transfer, exchange, convert or convey any
and all shares, stocks, bonds, debentures, rights, warrants or other securities
owned by or registered in the name of the Corporation and to sign and execute
(under the seal of the Corporation or otherwise) all assignments, transfers,
conveyances, powers of attorney and other instruments that may be necessary for
the purpose of selling, assigning, transferring, exchanging, convecting or
conveying any such shares, stocks, bonds, debentures, rights, warrants or other
securities.
29. (6) Notwithstanding any other paragraph of this section
29,
(a) officers of the Corporation appointed by the board as
officers of a division of the Corporation and who are
not also directors of the Corporation shall be
entitled to sign only those contracts, documents or
instruments in writing which relate to the business
of such division and such other contracts, documents
or instruments in writing which the board authorizes
any officer or officers of the Corporation to sign
pursuant to paragraph 29.(2) hereof; and
(b) employees of a division of the Corporation authorized
to sign instruments pursuant to paragraph 29.(2)
hereof and who are not also directors or officers of
the Corporation shall be entitled to sign only those
contracts, documents or
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instruments in writing which relate to the business
of such division and which form part of a class of
instruments which the board so authorizes such
employees to sign and such other instruments which
the board authorizes any such employees to sign
pursuant to paragraph 29.(2) hereof.
29. (7) The signature or signatures of the Chairman of the
Board, the President, a Vice-President, the Secretary, the Treasurer, or any
director or directors of the Corporation and/or of any other officer or
officers, person or persons appointed as aforesaid by the board of directors
may, if specifically authorized by the board of directors, be printed, engraved,
lithographed or otherwise mechanically reproduced upon any contracts, documents
or instruments in writing or bonds, debentures or other securities of the
Corporation executed or issued by or on behalf of the Corporation and all
contracts, documents or instruments in writing or bonds, debentures or other
securities of the Corporation on which the signature or signatures of any one or
more of the foregoing officers or directors or the officers or persons
authorized as aforesaid shall be so reproduced pursuant to special authorization
by resolution of the board of directors shall be deemed to have been manually
signed by each such officer, director or person whose signature is so reproduced
and shall be as valid to all intents and purposes as if they had been signed
manually and notwithstanding that any such officer, director or person whose
signature is so reproduced may have ceased to hold office at the date of the
delivery or issue of such contracts, documents or instruments in writing or
hands, debentures or other securities of the Corporation.
FINANCIAL YEAR
30. The financial year of the Corporation shall terminate on such
date in each year as the board of directors may from time to time by resolution
determine.
ENACTED this 31st day of March, 1989.
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President Secretary
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