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Exhibit 3.4
BY-LAW NO. 1
A BY-LAW TO REGULATE
THE BUSINESS AND AFFAIRS OF
ImagicTV Inc.
1. INTERPRETATION
1.01 Definitions. In this By-law and all other by-laws and resolutions of the
Corporation, unless the context otherwise requires:
(a) the following terms shall have the means specified:
(i) "Act" means the Canada Business Corporations Act of any statute which
may be substituted therefor, as amended from time to time;
(ii) "Articles" means the original or restated articles of incorporation,
articles of amendment, articles of amalgamation, articles of
continuance, articles of arrangement, articles of dissolution,
articles of reorganization or articles of revival of the Corporation
and includes any amendments;
(iii) "Board" means the board of directors of the Corporation:
(iv) "Corporation" means imagicTV Inc.
(v) "Director" means a member of the board; and
(vi) "Meeting of shareholders" means an annual meeting of shareholders of
the Corporation, or a special meeting of shareholders of the
Corporation, or both, and includes a meeting of any class or series
of any class of shareholders of the Corporation;
(b) terms used herein that are defined in the Act shall have the meanings given
to those terms in the Act; and
(c) words importing the masculine gender shall include the feminine and neuter
genders, and words importing the singular number shall include the plural
number, and vice versa.
2. SHAREHOLDERS
2.01 Annual and Special Meetings. The board shall call an annual meeting of
shareholders not later than 15 months after the holding of the last
preceding annual meeting. The board may at any time call a special meeting
of shareholders.
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2.02 Place of Meetings. Meetings of shareholders shall be held at the
registered office of the Corporation or elsewhere in the municipality in
which the registered office is situate or, if the board shall so
determine, at some other place in Canada.
2.03 Notice of Meetings. Notice in writing of the time and place of each
meeting of shareholders shall be sent not less than 21 days nor more than
50 days before the meeting to each shareholder entitled to vote at the
meeting, to each director and to the auditors of the Corporation. The
accidental failure to give notice of a meeting of shareholders to any
person entitled thereto or any error in such notice not affecting the
substance thereof shall not invalidate any action taken at the meeting.
2.04 Quorum. At any meeting of shareholders, the holders present in person or
represented by proxy of at least a majority of the outstanding shares of
the Corporation entitled to be voted at the meeting shall constitute a
quorum for the transaction of business.
2.05 Chairman and Secretary. The chairman of the board or, in the absence of
the chairman, the president or, in the absence of the president, a vice
president shall be chairman of any meeting of the shareholders and, if
none of the said officers be present within 15 minutes after the time
appointed for holding the meeting, the shareholders present and entitled
to vote shall choose a chairman from amongst themselves. The secretary of
the Corporation shall act as secretary at any meeting of shareholders or,
if the secretary of the Corporation be absent, the chairman of the meeting
shall appoint some person, who need not be a shareholder, to act as
secretary of the meeting. If desired, one or more scrutineers, who need
not be shareholders, may be appointed by resolution or by the chairman
with the consent of the meeting.
2.06 Show of Hands. Any question at a meeting of shareholders shall be decided
by a show of hands unless a ballot thereon is required or demanded as
hereinafter provided. Upon a show of hands every person who is present and
entitled to vote thereon shall have one vote. Whenever a vote by show of
hands shall have been taken upon a question, unless a ballot thereon is so
required or demanded, a declaration by the chairman of the meeting that
the vote upon the question has been carried or carried by a particular
majority or not carried and an entry to that effect in the minutes of the
meeting shall be prima facie evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against any
resolution or other proceeding in respect of the said question, and the
result of the vote so taken shall be the decision of the shareholders upon
the said question.
2.07 Ballots. On any question proposed for consideration at a meeting of
shareholders, and whether or not a show of hands has been taken thereon,
the chairman may require, or any shareholder or proxyholder entitled to
vote at the meeting may demand, a ballot. A ballot so required or demanded
shall be taken in such manner as the chairman shall direct. A requirement
or demand for a ballot may be withdrawn at any time prior to the taking of
a ballot. If a ballot is taken, each person present shall be entitled, in
respect of the shares which each person is entitled vote at the meeting
upon the question, to that number of votes provided by the Act or the
articles, and the result of the ballot so taken shall be the decision of
the shareholders upon the said question.
2.08 Dividend. A dividend payable in cash shall be paid by cheque drawn on the
Corporation's bankers or one of them to the order of each registered
holder of shares of the class or series in respect of which it has been
declared and mailed by prepaid ordinary
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mail to such registered holder at such holder's address recorded in the
Corporation's securities register, unless in each case such holder
otherwise directs. In the case of joint holders the cheque shall, unless
such joint holders otherwise direct, be made payable to the order of all
of such joint holders and mailed to them at their address recorded in the
securities register of the Corporation. The mailing of such cheque as
aforesaid, unless the same is not paid on due presentation, shall satisfy
and discharge the liability for the dividend to the extent of the sum
represented thereby plus the amount of any tax which the Corporation is
required to and does withhold.
2.09 Non-receipt of Cheques. In the event of non-receipt of any dividend cheque
by the person to whom it is sent, the Corporation shall issue to such
person a replacement cheque for a like amount on such terms as to
indemnity, reimbursement of expenses and evidence of non-receipt and of
title as the board may from time to time prescribe, whether generally or
in any particular case.
2.10 Unclaimed Dividends. Any dividend unclaimed after a period of 6 years from
the date on which the same has been declared to by payable shall be
forfeited and shall revert to the Corporation.
3. DIRECTORS AND OFFICERS
3.01 Number of Directors and Quorum. Until changed in accordance with the Act,
the board shall consist of such number of directors not greater than 9 not
less than 1 as the board may from time to time determine. A quorum for
meetings of the Board shall consist of a majority of the members of the
Board, with at least on (1) nominee of the NBT Holder and of the KRP
Holder (as those terms are defined in the Shareholder Agreement between
506048 N.B. Ltd., The New Brunswick Telephone Company, Limited, imagicTV
Inc. and Kanata Research Park Corporation made as of January 21, 1998)
being present. In the event that a quorum is not obtained at any meeting,
the meeting shall be adjourned and may be reconvened upon 14 days notice
to the directors. In the event a quorum is not obtained at the reconvened
meeting, the meeting shall be again adjourned and when reconvened, the
quorum shall be any five directors. Where the required number of directors
is one, the sole director of the Corporation may constitute a meeting.
3.02 Election and Term. Directors shall be elected by the shareholders at each
annual meeting of shareholders at which an election of directors is
required and shall hold office for a term expiring not later than the
close of the next annual meeting of shareholders following the election.
The number of directors to be elected at any such meeting shall be that
number most recently determined by the board. The election need not be by
ballot unless a ballot is demanded by any shareholder or required by the
chairman in accordance with section 2.07. If an election of directors is
not held at an annual meeting of shareholders at which such election is
required, the directors then in office shall continue in office until
their successors are elected.
3.03 Meetings of Board. The Board shall meet at least once in every 12 month
period during the term of this Agreement and in the event that a meeting
of the Board is not held during any 3 month period, any director may call
a meeting of the Board on 14 days prior notice to the other directors. At
each meeting of the Board, unless waived unanimously by the Board, the
President shall report fully to the Board with respect to the current
status of
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the operations of the Corporation and with respect to all major
developments or planned action involving the Corporation and shall present
to the meeting complete current financial information with respect to the
Corporation.
3.04 Place of Meetings. Meetings of the board may be held at the registered
office of the Corporation or at any other place within or outside Canada.
3.05 Calling of Meetings. Meetings of the board shall be held from time to time
at such place, on such day and at such time as the board, the chairman of
the board, the president or any two directors may determine.
3.06 Notice. Written notice of the time and place of each meeting of the board
shall be given to each director at least 48 hours before the meeting. A
notice of meeting of the board need not specify the business to be
transacted at the meeting except as may be required by the Act. The
accidental failure to give notice of a meeting of the board to a director
or any error in such notice not affecting the substance thereof shall not
invalidate any action taken at the meeting.
3.07 Votes to Govern. At all meetings of the board any question shall be
decided by a majority of the votes cast on the question and in the case of
an equality of votes the chairman of the meeting shall, in addition to his
original vote, cast a second or deciding vote. Any question at a meeting
of the board shall be decided by a show of hands unless a ballot is
required to demanded.
3.08 Chairman and Secretary. The chairman of the board or, in the chairman's
absence, the vice-chairman, or in the vice-chairman's absence, the
president or, in the president's absence, a vice-president shall be
chairman of any meeting of the board. If none of the said officers is
present, the directors present shall choose one of their number to be the
chairman. The secretary of the Corporation shall act as secretary at any
meeting of the board and, if the secretary of the Corporation be absent,
the chairman of the meeting shall appoint a person who need not be a
director to act as secretary of the meeting.
3.09 Committees. The board may elect or appoint additional committees composed
of directors and/or other persons which may exercise such powers as,
subject to any limitations prescribed by the Act, the board may delegate
to them and shall have such other functions as the board may determine.
3.10 Appointment of Officers. The board may from time to time appoint a
president, one or more vice-presidents, a secretary, a treasurer and such
other officers as the board may determine, including one or more
assistants to any of the officers so appointed. A chairman shall be
elected from among the directors nominated by the NBT Holder.
3.11 Indemnity of Directors and Officers. Except in respect of an action by or
on behalf of the Corporation or body corporate to procure a judgment in
its favour, the Corporation shall indemnify a director or officer of the
Corporation, a former director or officer of the Corporation or a person
who acts or acted at the Corporation's request as a director or officer of
a body corporate of which the Corporation is or was a shareholder or
creditor (or a person who undertakes or has undertaken any liability on
behalf of the Corporation or at the Corporation's request on behalf of any
such body corporate) and such director or officer's 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 such
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director or officer in respect of any civil, criminal or administrative
action or proceeding to which such director or officer is made a party by
reason of being or having been a director or officer of such Corporation
or body corporate (or by reason of having undertaken such liability); and
the Corporation shall with the approval of a court indemnify a person in
respect of an action by or on behalf of the Corporation or body corporate
to procure a judgment in its favour, to which such person 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 such director or officer in connection with such
action;
if in each case such director or officer:
(a) acted honestly and in good faith with a view of the best interests of
the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, had reasonable grounds for
believing that his or her conduct was lawful.
Notwithstanding the foregoing, the Corporation shall, without requiring
the approval of a court, indemnify any person referred to above, in
respect of an action by or on behalf of the Corporation or body corporate
to procure a judgment in its favour who has been substantially successful
on the merits in the defence of any civil, criminal or administrative
action or proceeding to which such person is made a party by reason of
being or having been a director or officer of the Corporation or body
corporate, against all costs, charges and expenses reasonably incurred by
such person in respect of such action or proceeding, provided that such
person has satisfied the appropriate conditions referred to in (a) and (b)
above.
3.12 Insurance. Subject to the limitations contained in the Act, the
Corporation may purchase and maintain insurance for the benefit of any
person referred to in section 3.10 as the board may from time to time
determine.
4. EXECUTION OF DOCUMENTS
4.01 The Board may from time to time determine the officers or other persons by
whom any particular document or instrument or class of documents or instruments
of the Corporation shall be executed and the manner of execution thereof,
including the use of facsimile reproductions of any or all signatures and the
use of the corporate seal or a facsimile reproductions thereof.
