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EXHIBIT 3.2
EXFO ELECTRO-OPTICAL ENGINEERING INC.
CODE OF GENERAL BY-LAWS
enacted pursuant to the
Canada Business Corporations Act
Adopted as of: May 25, 2000
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CODE OF GENERAL BY-LAWS OF
EXFO ELECTRO-OPTICAL ENGINEERING INC.
enacted pursuant to the
Canada Business Corporations Act
INDEX
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DEFINITIONS.................................................................. 1
LOCATION OF REGISTERED OFFICE AND OFFICES
Registered office....................................................... 1
Offices................................................................. 1
SHAREHOLDERS
Annual meetings......................................................... 1
Special meetings........................................................ 2
Place of meetings....................................................... 2
Notice of meetings...................................................... 2
Record Date............................................................. 3
Waiver of Notice........................................................ 3
Chairman................................................................ 3
Quorum.................................................................. 3
Representation at meetings.............................................. 4
Right to Vote........................................................... 4
Decisions by a Majority................................................. 4
Casting Vote............................................................ 4
Vote by Show of Hands................................................... 5
Voice Vote.............................................................. 5
Vote by Secret Ballot................................................... 5
Procedure at meetings................................................... 5
Scrutineers............................................................. 5
Addresses of the Shareholders and Subsequent Transferees of Shares...... 6
Signed Resolutions...................................................... 6
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BOARD OF DIRECTORS
Number................................................................ 6
Qualification......................................................... 6
Election and Term of Office........................................... 6
Resignation........................................................... 7
Removal............................................................... 7
Vacancy............................................................... 7
Replacement........................................................... 7
Remuneration.......................................................... 7
General Powers of the Directors....................................... 7
Irregularity.......................................................... 8
Use of Property or Information........................................ 8
Conflicts of Interest................................................. 8
Contracts with the Corporation........................................ 8
MEETINGS OF THE BOARD OF DIRECTORS
Calling of meetings................................................... 9
Participation by Telephone............................................ 9
Quorum................................................................ 10
Meeting Chairman and Secretary........................................ 10
Procedure............................................................. 10
Voting................................................................ 10
Signed Resolution..................................................... 10
OFFICERS................................................................... 11
Officers.............................................................. 11
Chairman of the Board................................................. 11
President............................................................. 11
Vice-President........................................................ 11
General Manager or Managing Director.................................. 11
Comptroller........................................................... 12
Secretary............................................................. 12
Treasurer............................................................. 12
Removal, Discharge and Resignation.................................... 12
Vacancy............................................................... 12
Remuneration.......................................................... 12
EXECUTIVE COMMITTEE
Election.............................................................. 13
Officers, Quorum and Procedure........................................ 13
Chairmanship.......................................................... 13
Secretary............................................................. 13
Powers................................................................ 13
Supervisory Power of the Board of Directors........................... 13
Participation by Telephone and Signed Resolutions..................... 13
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Meetings............................................................... 13
Remuneration........................................................... 14
Removal and Replacement................................................ 14
AUDIT COMMITTEE
Composition............................................................ 14
Duties................................................................. 14
Meetings............................................................... 14
Applicable By-laws..................................................... 14
OTHER COMMITTEES
Other Committees....................................................... 14
INDEMNIFICATION AND EXEMPTION
Indemnity.............................................................. 15
Insurance.............................................................. 15
Reimbursement of expenses.............................................. 15
SHARE CAPITAL
Issue and Stock Options................................................ 15
Share Certificates and Stock Transfers................................. 15
Securities Register.................................................... 16
Transfer Agents and Registrars......................................... 16
Record Date and Closing of Books....................................... 16
Lost or Destroyed Certificates......................................... 16
DIVIDENDS
Dividends.............................................................. 17
FISCAL YEAR AND AUDIT
Fiscal Year............................................................ 17
Audit.................................................................. 17
CORPORATE REPRESENTATION FOR CERTAIN PURPOSES
Declaration............................................................ 18
Representation at meetings............................................. 18
Signature of Documents................................................. 18
Declarations in the Register........................................... 19
MISCELLANEOUS PROVISIONS
Conflict with the Articles............................................. 19
Amendments............................................................. 19
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CODE OF GENERAL BY-LAWS OF
EXFO ELECTRO-OPTICAL ENGINEERING INC.
(the "Corporation")
enacted pursuant to the
Canada Business Corporations Act
DEFINITIONS
For the purposes of these By-laws, unless otherwise provided :
- "Act" means the Canada Business Corporations Act, R.S.C. (1985) ch. C-44,
as well as any amendment which may be made thereto, and any act which may
be substituted therefor;
- "Articles" means the articles of association, of amalgamation or of
continuance of the Corporation, as amended from time to time;
- "Auditor" means the auditor of the Corporation and includes an auditing
firm;
- "Ordinary Resolution" means a resolution adopted by the majority of the
votes cast by the shareholders qualified to vote in the circumstances, or
signed by all of them;
- "Resident Canadian" has the particular meaning ascribed by the Act to such
expression, but summarily includes a Canadian citizen and a permanent
resident, within the meaning of the Immigration Act, who ordinarily reside
in Canada;
LOCATION OF REGISTERED OFFICE AND OFFICES
1. Registered office. The registered office of the Corporation is situated in
the city or regional municipality recorded in the Articles, at the address
determined by the Board of Directors.
2. Offices. The Corporation may, in addition to its registered office,
establish elsewhere within or outside Canada any other office and agency.
SHAREHOLDERS
3. Annual meetings. The annual meeting of the shareholders of the Corporation
shall be held yearly on the date and at the time the Board of Directors may
determine in order to receive and examine the financial statements and, if any,
the report of the Auditor, elect directors, appoint an
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Auditor and fix or authorize the Board of Directors to fix his remuneration and
to examine, deal with and dispose of such other business as may properly come
before the meeting.
4. Special meetings. Special meetings of the shareholders may be called at
any time as determined by the President or the Board of Directors and
shall be called by the Board of Directors when required by one or more
shareholders holding no less than five per cent (5%) of the issued shares of the
Corporation carrying the right to vote at a meeting in conformity with the Act.
5. Place of meetings. Meetings of the shareholders shall be held in Canada
at the registered office of the Corporation or at any other place that may be
fixed by the Board of Directors. Meetings of the shareholders may be held
outside Canada if all shareholders entitled to vote thereat so agree; a
shareholder who attends such meeting is deemed to have so agreed, unless he is
present for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully held.
6. Notice of meetings. Notice of each annual meeting and of each special
meeting of the shareholders shall be delivered to the shareholders entitled to
vote thereat, the directors and the Auditor or, at the discretion of the person
charged with the giving of such notice, mailed by ordinary mail, transmitted by
facsimile or sent by electronic mail to the addressees at their respective
addresses entered in the books of the Corporation, no less than twenty-one (21)
days and no more than fifty (50) days prior to the date fixed for the meeting.
If the address of the addressee is not entered in the books of the Corporation,
the notice may be sent as aforesaid to the address that the person sending the
notice considers to be most likely to reach such addressee promptly. Any
irregularity in the notice of meeting or giving thereof, including the
accidental omission to send such notice or failure to receive on the part of the
shareholder, shall in no way affect the validity of proceedings of the meeting
in question.
Such notice shall specify the date, time and place of the meeting. The
notice of the annual meeting may, but need not, specify the nature of the
business when such meeting is called only to examine the financial statements
along with the report of the Auditor, to elect directors and to re-appoint the
incumbent Auditor. The notice of the annual meeting at which other business
shall be transacted, as well as the notice of special meeting, shall state:
(a) the nature of business to be considered in sufficient detail to permit
the shareholders to form a reasoned judgment thereon; and
(b) the text of any Special Resolution to be submitted to the meeting.
It is not necessary to give notice of the reconvening of an adjourned
meeting other than by announcement at the earlier meeting that is adjourned; a
new notice of meeting shall, however, be required if the shareholders' meeting
is adjourned one (1) or more times for an aggregate of thirty (30) days or more.
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The signature of any notice of meeting may be written, stamped,
typewritten, printed or otherwise mechanically reproduced.
A certificate of the Secretary or of any other duly authorized officer of
the Corporation in office at the time of the making of the certificate or of any
officer, transfer agent or registrar of transfers of shares of the Corporation
shall be conclusive evidence that may be set up against any shareholder or
director of the sending or delivery of a notice of meeting.
7. Record date. Subject to section 134 of the Act, directors may by resolution
fix in advance a date and time as the record date to determine which
shareholders are entitled to (i) receive notice of meetings of shareholders,
(ii) vote at meetings of shareholders and (iii) receive financial statements of
the Corporation in accordance with subsection 159(1) of the Act.
Should the directors fail to fix a date and time in advance as a record
date for any aforementioned issue for any meetings of shareholders of the
Corporation, the following provisions shall apply, as the case may be:
(a) the record date used to determine which shareholders are entitled to
receive notice of meetings of shareholders shall be fixed at the close
of business of the day immediately preceding that on which notice has
been given or sent or, failing such notice, on the day of the meeting;
(b) the record date used to determine which shareholders are entitled to
vote during meetings of shareholders shall be fixed on the day of such
meeting; and
(c) the record date used to determine which shareholders are entitled to
receive financial statements of the Corporation shall be fixed at the
close of business of the day the directors adopt a resolution to that
effect.
8. Waiver of notice. A shareholder or any other person entitled to be summoned
to a meeting of shareholders may waiver a notice of meeting prior to, during or
after such meeting is held. The mere presence of a shareholder shall constitute
a waiver, unless he is present for the express purpose of opposing the meeting
on the grounds that it was irregularly convened.
9. Chairman. The Chairman of the Board of Directors or, failing which, the
President of the Corporation or any other person appointed for such purpose by
the Board of Directors, shall preside at meetings of shareholders.
10. Quorum. A quorum of shareholders shall exist at an annual or special
meeting of shareholders, regardless of the number of persons physically present
at the meeting, if one or more holders of shares conferring not less than
33 1/3% of the total number of votes attached to the aggregate of the shares
carrying voting rights at such meeting are present physically or represented in
accordance with section 11 hereinbelow.
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If a quorum is present at the opening of the meeting, the shareholders
present or represented may proceed with the business of the meeting, even if a
quorum is not present throughout the meeting.
If a quorum is not present at the opening of the meeting, the shareholders
present or represented may adjourn the meeting, provided there is a majority
vote to that effect, to another time and place but may not transact any other
business.
If a quorum is present at the reconvening of the meeting so adjourned, the
meeting may then proceed, failing which, a new meeting shall be convened.
11. Representation at meetings. Shareholders shall be entitled to vote in
person or, if a body corporate, by representatives duly authorized by resolution
of its directors or its decision-making body. Shareholders shall also be
entitled to vote by proxy.
A proxyholder need not be a shareholder of the Corporation and may
represent several shareholders. A proxy may be given for all or part of a
shareholder's shares.
A proxy shall be valid only at the meeting in respect of which it is given
or any adjournment thereof.
A proxy appointing a proxyholder shall be in the form prescribed by the Act
and its Regulations.
The Board of Directors may specify, in the notice of meeting of
shareholders, a date and time limit for depositing with the Corporation or its
agent proxies to be used at the meeting; such date and time limits shall not
precede the meeting by more than 48 hours, excluding Saturdays and statutory
holidays.
The Board of Directors may also permit particulars of proxies for use at or
in connection with, any such meeting which have been deposited with the
Corporation or its agent at a place other than the place of such meeting to be
sent by facsimile to the Secretary of the Corporation prior to such meeting. In
such event, such proxies, if otherwise in order, shall be valid and any votes
cast in accordance therewith shall be counted.
12. Right to Vote. Subject to the provisions of the Act, each shareholder is
entitled to as many votes as his shares in the Corporation carry votes.
13. Decisions by a Majority. Unless otherwise provided in the Act, any question
submitted to the meeting of shareholders shall be decided by a simple majority
(50% + 1) of validly cast votes.
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14. Casting vote. In the case of a tie vote, the Chairman of the meeting shall
have the casting vote.
15. Vote by show of hands. Except where a voice vote or secret ballot has been
requested, votes shall be taken by a show of hands. In such a case, shareholders
or proxyholders shall vote by raising their hands and the number of votes shall
be calculated based on the number of hands raised.
16. Voice vote. If the Chairman of a meeting so orders, or any proxyholder
representing at least ten per cent (10%) of the votes attaching to outstanding
voting shares so requests (such requests may be withdrawn), and if a vote by
secret ballot has not been requested, votes shall be taken by voice vote. In
such a case, each shareholder or proxyholder shall orally state his name and
that of each shareholder he represents by proxy, the number of votes he
represents and how he intends to cast such votes. The number of votes so cast
shall determine whether or not a resolution is adopted.
17. Vote by secret ballot. If the Chairman of a meeting so orders, or a
shareholder or proxyholder entitled to vote so requests, the vote shall be taken
by secret ballot. A request for a vote by secret ballot may be made at any time
before the meeting is closed, regardless of whether a vote by show of hands or a
voice vote has been previously held or not; such request may also be withdrawn.
Each shareholder or proxyholder shall submit to the scrutineers one or several
ballots on which he shall have indicated how he intends to cast his votes and,
where relevant, his name and the number of votes he has. The result of a secret
ballot shall be deemed to be a resolution of the meeting at which the ballot was
taken whether or not a vote by show of hands or a voice vote had previously been
taken on the same question.
18. Procedure at meetings. The Chairman of any meeting of shareholders shall
conduct the procedure thereat in all respects and his decision on all matters,
including any question regarding the validity or invalidity of any proxy or the
admissibility or inadmissibility of a proposal, shall be conclusive and binding
upon all the shareholders.
A declaration by the Chairman at any meeting that a resolution has been
carried or not, whether unanimously or by particular majority, shall be
conclusive evidence of the fact.
At any time during the meeting, at his own discretion or with the approval
of the shareholders given by a simple majority, the Chairman may adjourn a
meeting provided he has reasonable grounds to do so, such as when confusion and
disorder render the harmonious and orderly conduct of a meeting impossible, and
he need not give notice for the reconvening of a meeting so adjourned.
Should the Chairman of the meeting fail to carry out his duties loyalty,
the shareholders may, at all times, remove and replace him with another person
selected from amongst themselves.
The directors of the Corporation shall be entitled, in such sole capacity,
to attend meetings of shareholders and to take the floor thereat.
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19. Scrutineers. The Chairman of any meeting of shareholders may appoint
scrutineers, who may but need not be directors, officers, employees or
shareholders of the Corporation, to act as the Chairman shall direct.
20. Addresses of the shareholders and subsequent transferees of shares. Every
shareholder shall furnish the Corporation with a mailing or electronic address
to which all corporate notices intended for such shareholder may be sent. Every
person who, by operation of the Act, transfer or other means whatsoever, shall
become entitled to any share, shall be bound by every notice in respect of such
share which, prior to the entry of his name and address on the register, is
given to the person whose name appears on the register at the time such notice
is given.
21. Signed resolutions. Subject to subsections 110(2) and 168(5) of the Act, a
resolution signed by all the shareholders entitled to vote on such resolution
shall be as valid as if it had been passed unanimously at a meeting duly
convened by such holders. Each duly signed resolution shall be kept with the
minutes of the meetings of shareholders.
BOARD OF DIRECTORS
22. Number. The business of the Corporation shall be administered by a Board of
Directors composed of a fixed number of directors indicated in the Corporation's
Articles. If the Articles provide for a minimum and maximum number of directors,
the Board of Directors shall be composed of such fixed number of directors but
not less than three (3), as shall be established by resolution passed by the
Board of Directors or, failing this, as the shareholders choose to elect within
such limits.
23. Qualification. No person shall be qualified for election as a director if
he is less than eighteen (18) years of age; if he is of legal age and has been
placed under tutorship or curatorship; if he has been declared of unsound mind
by a court in Canada or elsewhere; if he has the status of an undischarged
bankrupt; or if a court has prohibited him from holding the office of director.
Unless otherwise set out in the Articles of the Corporation, a director need not
be a shareholder. A majority of the directors shall be Resident Canadians,
unless otherwise set out in the Act. At least three (3) of the directors shall
be independent and shall not be officers or employees of the Corporation or its
subsidiaries. A retiring director, if otherwise qualified, shall be eligible for
re-election.
24. Election and term of office. Except for the appointment of a director
following a vacancy during a term of office or for the election of one or
several additional directors, each director shall be elected by Ordinary
Resolution at a general annual meeting of shareholders, subject to the
provisions of the Articles of Corporation providing for cumulative voting or the
exclusive right of certain classes of shareholders to elect one or several
directors. Each director shall be elected either for a fixed term, which shall
end no later than at the close of the third annual meeting thereafter, or for an
indeterminate term, which shall end at the close of the first annual meeting
thereafter. Not
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all directors need have the same term of office. Directors shall remain in
office, failing the election of new directors by a meeting of shareholders,
until such time as a substitute has been elected.
25. Resignation. A director may resign from his office by sending written
notice thereof to the Corporation and need give grounds for such resignation.
Said resignation shall take effect on the date of sending or remittance thereof,
or on such later date as may be indicated therein.
26. Removal. Unless otherwise provided in the Articles, shareholders may remove
a director by Ordinary Resolution at a special meeting. The director who
receives notice of his impending removal may, in a written statement, explain to
the Corporation the reasons why he opposes his removal, and the Corporation
shall forward such written statement to the shareholders entitled to vote in
such matter.
A vacancy created by the removal of a director may be filled by the
shareholders at the same meeting; in such a case, notice of such meeting shall
indicate that an election is to be held should the resolution of removal be
carried.
Should the holders of shares of a particular class have the exclusive right
to elect a director, such director may only be removed by Ordinary Resolution at
a special meeting of such holders.
The removal of a director, as well as his election, shall be at the
discretion of the shareholders. A director may be removed at any time and such
removal need not be based on any particular grounds, whether serious or not.
Neither the Corporation nor the shareholders voting in favour of the removal
shall incur any liability toward the director by the mere fact of his removal,
even if there be no grounds therefor.
27. Vacancy. The office of a director shall become vacant as of the moment his
resignation or removal takes effect; moreover, a vacancy is created when a
director is no longer qualified to perform his duties pursuant to section 23 or
if he dies.
28. Replacement. If a vacancy occurs on the Board of Directors, the remaining
directors may appoint a qualified person to fill such vacancy, for the unexpired
term of office. The directors may nonetheless continue to act despite one or
several vacancies, provided a quorum exists. Failing a quorum, the remaining
directors shall forthwith call a special meeting of shareholders to fill such
vacancy, in accordance with section 111 of the Act.
29. Remuneration. The remuneration to be paid to the directors shall be as
fixed by resolution of the Board of Directors. Such remuneration shall be in
addition to the salary or remuneration received as such from the Corporation by
an officer, employee or service provider who is also a director, unless a
resolution shall provide otherwise. Directors may also seek reimbursement for
traveling and other expenses incurred in connection with their duties.
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30. General powers of the directors. The directors of the Corporation shall
manage and administer the Corporation and may make or cause to be made any
contract which it may lawfully enter into. The directors shall be invested with
all such powers and authority as the Corporation by statute or its Articles is
authorized to exercise and do. The directors shall always act by resolution.
The directors may, in particular, acquire or dispose of, either by purchase,
sale, lease, exchange, mortgage or otherwise, stocks, interests, warrants,
options or other securities, buildings and other movable or immovable property
or any right or interest therein; for each transaction, they shall fix the
consideration and other conditions.
31. Irregularity. Notwithstanding that it be afterwards discovered that there
was some defect in the election of the Board of Directors or the election or
appointment of any director or that a director lacks or has lost his
qualification, all acts thereof shall be as valid and binding upon the
Corporation as if every such board or person had been duly elected or appointed
and had been qualified.
32. Use of property or information. No director may mingle the Corporation's
property with his own property or use for his own profit or that of a third
party any property of the Corporation or any information he obtains by reason of
his duties, unless he is expressly and specifically authorized to do so by the
shareholders of the Corporation.
33. Conflicts of interest. Each director shall avoid placing himself in a
situation of conflict between his personal interest and his obligations as a
director of the Corporation.
He shall promptly disclose to the Corporation any interest he has in any
enterprise or association that is likely to place him in a situation of conflict
of interest, as well as the rights he may enforce thereagainst, indicating, if
such be the case, the nature and value thereof. Such disclosure of interest
shall be recorded in the minutes of the proceedings of the Board of Directors. A
general disclosure shall remain valid until the facts have changed, and a
director need not reiterate such declaration for any particular, subsequent
transaction.
34. Contracts with the corporation. A director or an officer may, even in
performing his duties, enter into material contracts with the Corporation, or be
a director, an officer or a holder of a material interest in a body corporate
that is a party to such contract. He shall then, in accordance with section 120
of the Act, 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 in
such contract, even if such contract, within the scope of the normal business
activity of the Corporation, does not require the approval of either the
directors or the shareholders. For the purposes of this by-law, a general notice
that the director or officer is a director, an officer or a holder of a material
interest in a body corporate and is to be regarded as interested in any contract
made with that body corporate, is a sufficient declaration of interest.
A director who is so interested in a contract shall not discuss or vote on
such resolution to approve the contract unless the contract is one of the
contracts referred to in subsection 120(5) of the
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Act, that is, relating primarily to the remuneration or indemnification of such
director, or a contract with an affiliate of the Corporation.
At the request of the President or any director, the interested director
shall leave the meeting while the Board of Directors discusses and votes on the
contract concerned.
Neither the Corporation nor any of its shareholders may contest the
validity of a contract entered into with a director or an officer of the
Corporation, or with a body corporate in which such director or officer is a
director, an officer or a holder of a material interest, for such sole reason,
provided such director or officer has disclosed his interest as aforementioned,
the Board of Directors or the Shareholders of the Corporation have approved the
contract, and the contract was, at that time, equitable for the Corporation.
MEETINGS OF THE BOARD OF DIRECTORS
35. Calling of meetings. Every year, immediately following the annual general
meeting of the shareholders, a meeting of the new directors present shall be
held without further notice if they constitute a quorum to elect or appoint the
officers of the Corporation and consider, deal with and dispose of any further
business.
Meetings of the Board of Directors may be called by or by order of the
Chairman of the Board of Directors, if any, the President of the Corporation or
two (2) directors and may be held anywhere within or outside Canada. A notice of
each meeting, specifying the place, date and time, shall be sent to each
director at his residence or workplace. The notice shall be sent no less than
five (5) days prior to the date fixed for the meeting by ordinary or registered
mail or by facsimile or electronic mail. In the absence of an address for a
director, the notice may be sent to the address at which the sender considers
that the notice is most likely to reach the director promptly.
The Board of Directors may resolve to hold periodic or fixed meetings of
the Board of Directors, with or without notices of meeting, at any place in
Canada or elsewhere.
The notice of a meeting of the Board of Directors need not specify the
goals or business thereof, with the exception of those matters referred to in
subsection 115(3) of the Act, in particular, the declaration of dividends, the
issue of securities, the purchase of shares issued by the Corporation, the
approval of the annual financial statements, the filling of vacancies on the
Board of Directors or in the office of Auditor and the adoption, amendment or
repealing of by-laws.
Any director may waive in writing a notice of meeting of the Board of
Directors prior to, during or after the holding of such meeting. His mere
presence at a meeting shall constitute a waiver, unless he is present for the
sole purpose of objecting to the holding thereof on the grounds that the manner
of calling it was irregular.
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Notice need not be given of the reconvening of an adjourned meeting of
directors if the date, time and place of such meeting were announced at the
initial meeting.
36. Participation by telephone. Directors may, if all are in agreement,
participate in a meeting of the Board of Directors using means permitting all
participants to communicate orally amongst themselves, in particular, by
telephone. A director participating in the meeting by such means shall be deemed
to have attended the meeting. The directors shall then vote by a voice vote, by
way of derogation to section 40 hereinbelow.
37. Quorum. A majority of the directors in office shall constitute a quorum for
a meeting of the Board of Directors. A quorum shall be present throughout the
meeting. Once a quorum exists, the directors may exercise their powers,
notwithstanding any vacancy on the board. No business shall be dealt with unless
the number of "Resident Canadian" directors prescribed in the Act is present.
38. Meeting chairman and secretary. Meetings of the Board of Directors shall be
chaired by the Chairman of the Board of Directors, if any, or, failing him, by
the President of the Corporation or, failing him, by a Vice-President designated
for such purpose by the President. The Secretary of the Corporation shall act as
Secretary of the meetings. The directors present at a meeting may nevertheless
appoint any other persons as Chairman or Secretary of such meetings.
39. Procedure. The Chairman of the meeting shall ensure that the meeting is
conducted smoothly and submit to the Board of Directors the motions on which a
vote is to be taken and shall generally conduct the procedure thereat in all
respects, in which regard his decision shall be final and binding on all
directors. Should the meeting Chairman fail to submit a motion, any director may
submit it himself before the meeting is adjourned or closed and, if such motion
lies within the competence of the Board of Directors, the Board of Directors
shall consider it. For such purpose, the agenda of each meeting of the Board of
Directors shall be deemed to include a period for the submission of motions by
the directors. Should the Chairman of the meeting fail to carry out his duties
loyally, the directors may remove him at any time and replace him by another
person.
40. Voting. Each director shall be entitled to one vote, and all matters shall
be decided by the majority of votes cast. The vote shall be taken by a show of
hands unless the Chairman of the meeting or a director requests a ballot, in
which case the vote shall be taken by ballot. If the vote is taken by ballot,
the meeting Secretary shall act as Scrutineer and count the ballots. The fact of
having voted by ballot shall not deprive a director of the right to express his
dissent in respect of the resolution concerned and to cause such dissent to be
entered. Voting by proxy shall not be permitted, and the Chairman of the meeting
shall have no casting vote in the case of an equality of votes.
41. Signed resolution. A written resolution, signed by all the directors, shall
be valid and have the same effect as though it were adopted at a meeting of the
Board of Directors duly called and held. Each signed resolution shall be
inserted in the minute book of the Corporation, in order of its date, in the
same manner as minutes.
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OFFICERS
42. Officers. The officers of the Corporation shall be the Chairman of the
board, if appointed, the President, and, if elected or appointed, one or more
Vice-Presidents, the General Manager or Managing Director, the Comptroller, the
Secretary, the Treasurer, and such other officers as the Board of Directors may
appoint and whose duties it may determine by resolution. Subject to those powers
which, pursuant to the Act, may only be exercised by the Board of Directors, the
officers of the Corporation shall exercise such powers and authority and shall
perform such duties, as prescribed by the Board of Directors in addition to
those specified in the by-laws. The same person may hold more than one (1)
office. None of the officers of the Corporation need be directors or
shareholders of the Corporation, with the exception of the President, if any,
the Chairman of the Board of Directors, if any, and the General Manager, if any.
The directors may also appoint other agents, officials and employees of the
Corporation within or outside Canada, who may be given such titles and who shall
exercise such powers and authority and perform such duties of management, as the
Board of Directors may determine.
In the event of the absence of any officer or for any other reason that the
directors may deem sufficient, the Board of Directors may delegate the powers
and authority of such officer to any other officer or to any director of the
Corporation.
43. Chairman of the board. The Chairman of the board shall preside at all
meetings of the Board of Directors and shareholders.
44. President. The President shall be the chief officer of the Corporation and,
subject to the control of the directors and the appointment of a General Manager
or Managing Director, shall supervise, administer and manage the business and
affairs of the Corporation generally. In the event of the absence, inability or
failure of the Chairman of the board to act, the President shall preside at all
meetings of the Board of Directors and of the shareholders.
45. Vice-president. In the event of the absence, inability or failure of the
President to act, the Vice-President or, if more than one (1) Vice-President,
the First Vice-President or, failing him, the Second Vice-President, and so
forth, shall assume the powers and perform the duties of the President. The
Vice-President shall exercise such powers and authority and perform such duties
prescribed by the Board of Directors or by the President.
46. General manager or managing director. The General Manager or Managing
Director shall, subject to the control of the President, manage the operations
of the Corporation generally. He shall comply with all instructions received
from the Board of Directors and shall give to the Board of Directors or the
members thereof the information they require concerning the affairs of the
Corporation.
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The General Manager or Managing Director shall be a Resident Canadian and a
director. The Board of Directors may delegate to such General Manager or
Managing Director any of the powers of the board except those which by law a
General Manager or Managing Director has no authority to exercise.
47. Comptroller. The Comptroller shall, subject to the control of the
President, be the chief accounting officer of the Corporation. He shall, upon
request, render account to the President and the directors of the financial
position of the Corporation and all its transactions. He shall be entrusted
with, and have custody of, the books of account.
48. Secretary. The Secretary shall attend to the preparation and sending of all
notices of the Corporation. He shall keep the minutes of all meetings of the
directors, the committees of the Board of Directors and the shareholders in a
book or books to be kept for that purpose. He shall have charge of the records
of the Corporation including books containing the names and addresses of the
members of the Board of Directors, together with copies of all reports made by
the Corporation and such other books and papers as the directors may direct. He
shall be responsible for the keeping and filing of all books, reports,
certificates and all other documents required by law to be kept and filed by the
Corporation. He shall be subject to the control of the President.
49. Treasurer. The Treasurer, subject to the control of the President, shall
have general charge of the finances of the Corporation. He shall deposit all
moneys and other valuable effects of the Corporation in the name and to the
credit of the Corporation in such banks or other depositories as the Board of
Directors may designate.
50. Removal, discharge and resignation. The Board of Directors, by the
affirmative vote of the absolute majority of its members, may remove any officer
with or without cause at any time, unless the resolution or contract providing
for his appointment stipulates otherwise. Any agent, officer, official or
servant who is not an officer of the Corporation may be discharged by the
President or any other officer authorized for such purpose, with or without
cause at any time.
Any officer may resign his office at any time by remitting his resignation
in writing to the President or the Secretary of the Corporation, or at a meeting
of the Board of Directors, unless otherwise agreed.
51. Vacancy. Any vacancy occurring in the office of any officer may be filled
by the Board of Directors.
52. Remuneration. The remuneration of all officers shall be fixed by the Board
of Directors. The remuneration of all other mandataries, officers, officials and
servants of the corporation shall be fixed by the President or any other officer
authorized for such purpose.
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EXECUTIVE COMMITTEE
53. Election. The Board of Directors may appoint from among their number a
committee of the Board of Directors, designated "Executive Committee",
containing such proportion of Resident Canadians as may be required by the Act.
54. Officers, quorum and procedure. The committee shall have the power to
appoint its officers, to fix its quorum at not less than a majority of its
members, and to determine its procedure.
55. Chairmanship. Meetings of the Executive Committee shall be chaired by the
Chairman of the Board of Directors or, if none is appointed, by the President of
the Corporation. In his absence, meetings of the Executive Committee shall be
chaired by the person whom the members of the Executive Committee present choose
from amongst themselves.
56. Secretary. The Secretary of the Corporation shall act as Secretary of the
committee unless another secretary is appointed by the committee.
57. Powers. The Executive Committee shall possess the powers and authority of
the Board of Directors for the administration of the day-to-day affairs of the
Corporation, except for those powers which, by law, must be exercised by the
Board of Directors, as well as the powers which the Board of Directors may
expressly reserve for itself.
58. Supervisory power of the board of directors. All acts of the Executive
Committee shall be subject to the supervision of the Board of Directors and
shall be reported to the Board of Directors should the latter so directs. The
Board of Directors may invalidate or amend decisions made by the Executive
Committee, provided that the rights of third parties are not affected.
59. Participation by telephone and signed resolutions. Sections 36 and 41 shall
apply, mutatis mutandis, to meetings of the Executive Committee.
60. Meetings. Meetings of committee may be held at the registered office of the
Corporation or at such other place within or outside Canada as the committee may
determine.
Meetings of the committee may be called by or by the order of its Chairman
or two members of such committee.
A member of the Executive Committee may waive in writing a notice of the
meeting of the Executive Committee, prior to or after the holding thereof. His
mere attendance at a meeting shall be deemed a waiver, except where he attends a
meeting solely for the purpose of objecting to the holding thereof on the
grounds that the manner of calling it was irregular.
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61. Remuneration. The members of the committee shall be entitled to receive
such remuneration for their services as members of the committee as the Board of
Directors may determine.
62. Removal and replacement. The Board of Directors may at any time remove from
office any member of a committee of the Board of Directors.
The Board of Directors may also fill any vacancy which may occur on
a committee.
AUDIT COMMITTEE
63. Composition. The Audit Committee shall consist of at least three (3)
directors, appointed each year by the Board of Directors. The audit committee
shall be comprised solely of independent directors.
64. Duties. The Audit Committee shall review the financial statements of the
Corporation prior to their approval by the Board of Directors and shall perform
all the other duties the latter may establish.
65. Meetings. The meetings of the Audit Committee shall be convened by one of
its members or by the Auditor.
66. Applicable by-laws. The Audit Committee shall, in all other respect, be
subject to the same aforementioned provisions that apply to the Executive
Committee.
OTHER COMMITTEES
67. Other committees. The Board of Directors may create any other committee it
shall deem appropriate, whether or not it be comprised of members of the Board
of Directors. The Board of Directors may delegate to any such committee of the
board of directors any of the powers of the board except those which pursuant to
the Act a committee of the board of directors has no authority to exercise.
Unless otherwise ordered by the board, each committee so created shall have the
power to determine its own quorum of no less than a majority of its members, to
elect its own Chairman and to determine its own procedures.
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INDEMNIFICATION AND EXEMPTION
68. Indemnity. Subject to the limitations provided by the Act, the Corporation
shall indemnify any director or officer of the Corporation, former director or
officer of the Corporation or person who acts or acted at the Corporation's
request as a director or officer of a corporation of which the Corporation is or
was a shareholder or creditor, and his heirs and legal representatives, against
all costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him in respect of any civil, criminal
or administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of the Corporation or such
corporation, provided:
(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 to
believe that his conduct was lawful.
69. Insurance. To the extent permissible by law, the Corporation may purchase
and maintain insurance for the benefit of any person referred to above against
such liability as the Board of Directors may from time to time determine.
70. Reimbursement of expenses. Subject to a contractual agreement stipulating
or limiting such obligation, the Corporation shall reimburse the director,
officer or other agent for expenses reasonably incurred by him within the
performance of his duties. An expense shall be reimbursed upon production of any
appropriate vouchers.
SHARE CAPITAL
71. Issue and stock options. Subject to all provisions contained in the
Articles of the Corporation limiting the allocation or issue of shares of the
share capital of the Corporation, the directors may accept subscriptions for,
allot, distribute, issue unissued shares of the Corporation in whole or in part,
grant options thereon or otherwise dispose thereof to any person, enterprise,
corporation, company or body corporate, upon the conditions and for the lawful
consideration in compliance with the Articles of the Corporation determined by
the directors, without any requirement to offer such unissued shares to persons
who are already shareholders rateably to the shares held by them.
72. Share certificates and stock transfers. Certificates representing shares of
the share capital of the Corporation shall bear the signature of both the
Secretary and either the President or a Vice-President. Such signatures may be
engraved, lithographed or otherwise mechanically
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reproduced. Any certificate bearing the facsimile reproduction of the signatures
of such authorized officers shall be deemed to have been manually signed by them
and shall be as valid as if it had been so manually signed notwithstanding that
the persons whose signatures are so reproduced shall have ceased to be officers
of the Corporation.
73. Securities register. A central securities register shall be maintained by
the Corporation or its agent at the registered office or at any other place in
Canada designated by the Board of Directors. The Board of Directors may from
time to time provide that one (1) or more branch securities registers be
maintained at such places within Canada or elsewhere as may be designated by a
resolution and may appoint officers or agents to maintain the same and to effect
and record therein transfers of shares of the share capital of the Corporation.
74. Transfer agents and registrars. The agents of the Corporation charged with
the maintenance of the central and/or branch securities registers may be
designated as transfer agents and/or registrars of transfers, according to their
functions. The Board of Directors may at any time terminate the appointment of
such transfer agents and/or registrars.
75. Record date and closing of books. Subject to the provisions of the Act with
respect to notification, the directors may fix in advance, by resolution, a date
not exceeding fifty (50) days preceding the date for payment of a dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares of the capital stock of the Corporation shall go into
effect as the record date for the determination of the shareholders entitled to
receive payment of such dividend, the allotment of such rights or the exercise
of such rights in respect of such change, conversion or exchange of the capital
stock of the Corporation with the effect that only the shareholders of record on
the date so fixed by the Board of Directors shall be entitled to receive payment
of such dividend or allotment of rights or to exercise such rights, as the case
may be, notwithstanding a transfer of any shares on the books of the Corporation
after such record date.
76. Lost or destroyed certificates. The Board of Directors may, upon such terms
and conditions as to indemnity and otherwise as they may deem advisable, direct
that a new certificate or certificates of shares be issued to replace any
certificate or certificates of shares theretofore issued by the Corporation that
have been worn out, lost, stolen or destroyed. The Board of Directors, when
authorizing the issue of such new certificate or certificates, may, in its
discretion, and as a condition precedent thereto, require the owner of such
worn-out, lost, stolen or destroyed certificate or his legal representatives to
give to the Corporation and/or transfer agent or transfer agents and to such
registrar or registrars, as may be authorized or required to countersign such
new certificate or certificates a bond in such sum as they may direct, as
indemnity against any claim that may be made against them or any of them for or
in respect of the shares represented by such certificates alleged to have
been-worn out, lost, stolen or destroyed.
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DIVIDENDS
77. Dividends. The Board of Directors may, from time to time and in compliance
with the law, declare and pay dividends to the shareholders, in accordance with
their respective rights.
The Board of Directors may stipulate that a dividend be payable, in whole
or in part, in Corporation stock.
A transfer of shares shall not effect assignment of the rights to the
dividends declared thereon so long as the transfer is not recorded. Where two
(2) or more persons are recorded as joint holders of one share, each of them may
give a valid receipt for any dividend payable or paid on such share.
FISCAL YEAR AND AUDIT
78. Fiscal year. The period for the fiscal year of the Corporation shall be
determined by the Board of Directors.
79. Audit. The shareholders, at each annual general meeting, shall appoint an
Auditor or auditors to hold office until the next annual general meeting or
until the appointment of his or their successor or successors, unless he or they
resign or his or their office becomes vacant. At least once in every fiscal
year, such Auditor shall examine the accounts of the Corporation and the
financial statements to be presented at the annual general meeting and shall
report thereon to the shareholders. The remuneration of an Auditor may be fixed
by the shareholders or by the Board of Directors, should the former so
authorize.
The Auditor shall be independent of the Corporation, of its affiliates, or
the directors or officers thereof, in accordance with the Act. The shareholders
may remove the Auditor from office at any time at a special meeting. A vacancy
created by the removal of the Auditor may be filled by the shareholders at the
meeting at which the Auditor is removed or, if not so filled, may be filled by
the Board of Directors. Any other vacancy which may occur shall be filled by the
Board of Directors in accordance with section 166 of the Act.
The shareholders may decide not to appoint an Auditor for any fiscal year,
by resolution receiving the unanimous consent of all the shareholders including
those who otherwise are not qualified to vote. The resolution shall be valid
only until the next annual meeting.
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CORPORATE REPRESENTATION FOR CERTAIN PURPOSES
80. Declaration. The President, Chairman of the Board of Directors, any
Vice-President, the General Manager or Managing Director, the Comptroller, the
Secretary or the Treasurer or any one (1) of them or, if authorized by the Board
of Directors, any other officer, official or person, shall be authorized and
empowered to make answer for the Corporation to all writs, orders and
interrogatories upon articulated facts issued out of any Court, to answer for
and on behalf of the Corporation to any writ of attachment by way of garnishment
in which the Corporation is garnishee, to make all affidavits and sworn
declarations in connection therewith or in connection with any judicial
proceedings to which the Corporation is a party, to make petitions for
assignment of property, winding-up or receivership against any debtor of the
Corporation, to attend and vote at all meetings of creditors of the
Corporation's debtors and to grant proxies in connection therewith.
81. Representation at meetings. The President, Chairman of the Board of
Directors, any Vice-President, the General Manager or Managing Director, the
Comptroller, the Secretary or the Treasurer, or any one (1) of them or any other
officer or person thereunto authorized by the Board of Directors shall represent
the Corporation, attend and vote at any meeting of shareholders or members of
any firm, company, body corporate or syndicate in which the Corporation holds
shares or is otherwise interested, and any action taken and/or vote cast by them
shall be deemed to be the act and/or vote of the Corporation.
Any two (2) of the following persons acting jointly, namely the President,
the Chairman of the Board of Directors, any Vice-President, the General Manager
or Managing Director, the Comptroller, the Secretary or the Treasurer shall
moreover be empowered to authorize any person (whether an officer of the
Corporation or not) to attend, vote and otherwise act at all meetings of
shareholders or members of any firm, company, corporation or syndicate in which
the Corporation holds shares or is otherwise interested, and for this purpose,
such officers shall be authorized to execute and to deliver for and on behalf of
the Corporation a proxy in such form and under such terms as such officers see
fit, including therein, but without in any way limiting or restricting the
generality of the foregoing, provision for the appointment of a substitute
proxyholder and the revocation of all proxies given by the Corporation prior
thereto with respect to any such meeting.
82. Signature of documents. Contracts, documents, written acts, including
discharges and releases, requiring the signature of the Corporation may be
validly signed by the President alone, or by any two of the following persons
acting jointly, namely, any Vice-President, the General Manager or Managing
Director, the Secretary and the Treasurer, and shall hence be binding on the
Corporation. The Board of Directors may also designate any other person to sign
and deliver on behalf of the Corporation, either alone or jointly with one (1)
or several other persons, all contracts, documents and written acts, and such
authorization may be given by resolution in general or specific terms.
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83. Declarations in the Register. Declarations to be filed with the Inspector
General of Financial Institutions of Quebec in accordance with the Act
respecting the legal publicity of sole proprietorships, partnerships and legal
persons or with any competent authorities shall be signed by the President, any
director of the Corporation or any other person authorized for such purpose by
resolution of the Board of Directors. Any director having ceased to hold such
office as a result of his resignation, removal or otherwise shall be authorized
to sign on behalf of the Corporation and file an amending declaration and a Form
6 (Notice of Directors or Notice of change of Directors) to the effect that he
has ceased to be a director, from fifteen (15) days after the date of such
cessation, unless he receives proof that the Corporation has filed such a
declaration.
MISCELLANEOUS PROVISIONS
84. Conflict with the Articles. In the event of a conflict between the
provisions of a by-law and those of the Articles, the latter shall prevail.
85. Amendments. The Board of Directors shall have the power to adopt, repeal or
amend a by-law, but such measure shall apply only until the next annual general
or special meeting of the shareholders. If such adoption, repeal or amendment is
not confirmed or modified by Ordinary Resolution at such annual general or
special meeting, it shall cease to be in force, but only as of that date. Any
shareholder may, in accordance with section 137 of the Act, submit a proposal at
an annual meeting that a by-law be adopted, amended or repealed.
/s/ Germain Lamonde
_____________________________________
Germain Lamonde
President and Chief Executive Officer
