SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BIOVAIL CORPORATION
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(Exact name of registrant as specified in its charter)
Canada [Not Applicable]
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(Jurisdiction of incorporation) (I.R.S. Employer Identification No.)
2488 Dunwin Drive
Mississagua, Ontario, Canada L5L 1J9
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Convertible Subordinated New York Stock Exchange, Inc.
Preferred Equivalent Debentures
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ x ]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates:
[N/A] (if applicable)
---------------------
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to Be Registered.
The information required by Item 202 of Regulation S-K with respect to the
Convertible Subordinated Preferred Equivalent Debentures is contained in
Amendment No. 2 to Registrant's Registration Statement on Form F-10
(Registration No. 333-11580 ) as filed with the Securities and Exchange
Commission on March 17, 2000 under the captions "Description of the Securities"
and "Description of Capital Stock" and is incorporated herein by reference.
2
<PAGE>
Item 2. Exhibits
1. Form of Indenture (incorporated by reference to Exhibit 7.2 to Amendment
No. 2 to Biovail Corporation's Registration Statement on Form F-10, Registration
No. 333-11580).
2. Form of Debenture (included in immediately preceding exhibit).
3. Specimen Stock Certificate for Biovail Corporation International Common
Shares (incorporated by reference to Biovail's Registration Statement on Form
F-4, Registration No. 33-74120).
4. Form of Warrant Agreement between Biovail Corporation International and
Chase Mellon Shareholder Services, L.L.C., as Warrant Agent (incorporated by
reference to Exhibit 4.2 to the F-1/F-3 Registration Statement, Reg. No.
333-10860).
5. Form of Warrant (incorporated by reference to Exhibit 4.3 to the F-1/F-3
Registration Statement, Reg. No. 333-10860).
6. Articles of Amalgamation of Biovail Corporation International
(incorporated by reference to Biovail Corporation International's Registration
Statement on Form F-4, Registration No. 33-74120).
7. Articles of Amendment of Biovail Corporation International.
8. Articles of Amalgamation of Biovail Corporation.
9. By-Law No. A of Biovail Corporation International.
3
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
BIOVAIL CORPORATION
Date: March 16, 2000 By: /s/ Kenneth G. Howling
-------------------------
Name: Kenneth G. Howling
Title: Vice President, Chief
Financial Officer
4
<PAGE>
EXHIBIT INDEX
Number Description
1. Form of Indenture (incorporated by reference to Exhibit 7.2 to Amendment
No. 2 to Biovail Corporation's Registration Statement on Form F-10,
Registration No. 333-11580).
2. Form of Debenture (included in immediately preceding exhibit).
3. Specimen Stock Certificate for Biovail Corporation International Common
Shares (incorporated by reference to Biovail's Registration Statement on
Form F-4, Registration No. 33-74120).
4. Form of Warrant Agreement between Biovail Corporation International and
Chase Mellon Shareholder Services, L.L.C., as Warrant Agent (incorporated
by reference to Exhibit 4.2 to the F-1/F-3 Registration Statement, Reg. No.
333-10860).
5. Form of Warrant (incorporated by reference to Exhibit 4.3 to the F-1/F-3
Registration Statement, Reg. No. 333-10860).
6. Articles of Amalgamation of Biovail Corporation International (incorporated
by reference to Biovail's Registration Statement on Form F-4, Registration
No. 33-74120).
7. Articles of Amendment of Biovail Corporation International
8. Articles of Amalgamation of Biovail Corporation
9. By-Law No. A of Biovail Corporation International.
5
EXHIBIT 7
---------------------------------
For Ministry Use Only Ontario Corporation Number
1333387
---------------------------------
Ministry of Consumer and
Commercial Relations
CERTIFICATE
This is to certify that these
articles are effective on
DECEMBER 31, 1999
Director
Business Corporation Act
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ARTICLES OF AMENDMENT
STATUTS MODIFICATION
1. The name of the corporation is:
B I O V A I L C O R P O R A T I O N I N T E R N A T I O N A L
2. The name of the Corporation is changed to (if
applicable):
3. Date of incorporation/amalgamation:
1999, January, 01
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(Year, Month, Day)
4. The articles of the corporation are amended as
follows:
To reorganize the share capital of the Corporation:
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(a) To subdivide each of the issued and outstanding common shares of the
Corporation into two common shares of the Corporation on the basis of
two common shares for each common share held;
(b) To remove the maximum number of common shares that the Corporation is
authorized to issue by increasing the authorized number of common
shares from 120,000,000 common shares to an unlimited number of common
shares; and
(c) To provide that the classes and any maximum number of shares that the
Corporation is authorized to issue shall be as follows:
an unlimited number of Class A Special shares
an unlimited number of common shares
5. The amendment has been duly authorized as required by
Sections 168 & 170 (as applicable) of the Business
Corporations Act.
6. The resolution authorizing the amendment was approved
by the shareholders/directors applicable) of the
corporation on
1999, December, 30
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(Year, Month, Day)
These articles are signed in duplicate.
double exemplaire.
BIOVAIL CORPORATION
INTERNATIONAL
-----------------------------------
(Name of Corporation)
By: /s/ Kenneth Howling
------------------------------
(Signature) (Description of Office)
Kenneth Howling -- Chief Financial Officer
EXHIBIT 8
Ministry of Consumer and
Commercial Relations
------------------------------
Ontario Corporation No.
CERTIFICATE 1402077
This is to certify that ------------------------------
effective on February 18, 2000
Director, Business Corporation Act
Form 4
Business
Corporations
Act
ARTICLES OF AMALGAMATION
1. The name of the amalgamated corporation is:
B I O V A I L C O R P O R A T I O N
2. The address of the registered office is:
2488 Dunwin Drive
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(Street & Number or R.R. Number & if Multi-Office Building give Room No.)
Mississauga ON L 5 L 1 J 9
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(Name of Municipality or Post Office) (Postal Code)
3. Number (or minimum and maximum number) of directors is:
A minimum of 3 and a maximum of 20 directors
4. The director(s) is/are:
Resident
Address for service, giving Canadian
First name, initials and surname Street & No. or R.R. No., State
municipality and postal code Yes or No
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PLEASE SEE ATTACHMENT 1
<PAGE>
<TABLE>
<CAPTION>
Attachment 1
4. The director(s) is/are: Administrateur(s): Resident
Canadian
State
First name, initials and surname Residence address, giving Street & No. or R.R. Yes or No
No., municipality and postal code
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<S> <C> <C>
Eugene N. Melnyk Crane Beach House No
St. Philip, Barbados, West Indies
Bruce D. Brydon 9638 4th Line, R.R. #5 Yes
Milton ON L9T 2X9
Robert A. Podruzny 7 Boynton Circle Yes
Markham ON L6C IA8
Kenneth C. Cancellara 267 Forest Hill Road Yes
Toronto ON M5P 2N3
Rolf K. Reininghaus 313 Indian Valley Trail Yes
Mississauga ON L5G 2K9
Robert Vujea 1030 Carpenter N.W. No
Grand Rapids, Michigan, USA 49504-3727
Wilfred G. Bristow 467 Mountsberg Road R.R. #2 Yes
Campbellville ON L0P IR0
Roger Rowan 53 Buckingham Avenue Yes
Toronto ON M4N IR3
</TABLE>
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<PAGE>
5. A) The amalgamation agreement has been
duly adopted by the shareholders of each / /
of the amalgamating corporations as
required by subsection 176(4) of the
Business Corporations Act on the date
set out below.
Check
A or B
B) The amalgamation has been approved by
the directors of each amalgamating
corporation by a resolution as required
by section 177 of the Business
Corporations Act on the date set out / X /
below.
The articles of amalgamation in
substance contain the provisions of the
articles of Incorporation of
Biovail Corporation International
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and are more particularly set out in these articles.
Names of amalgamating Date of Adop-
corporations Ontario Corporation Number tion/Approval
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Biovail Corporation 1333387 February 15, 2000
International
TXM Corporation 744219 February 15, 2000
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<PAGE>
6. Restrictions, if any, on business the corporation may carry on or on powers
the corporation exercise.
There are no restrictions on the business the Corporation may carry on or
on the powers the Corporation may exercise
7. The classes and any maximum number of shares that the corporation is
authorized to issue.
To provide that the classes and any maximum number of shares that the
corporation is authorized to issue shall be as follows:
an unlimited number of Class A Special shares
an unlimited number of common shares
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<PAGE>
8. Rights, privileges, restrictions and conditions (if any) attaching to each
class of shares and directors authority with respect to any class of shares
which may be issued in series:.
(i) The Class A Special shares may from time to time be issued in one or
more series and subject to the following provisions, the directors may
fix from time to time before such issue the number of shares that is
to comprise each series and the designation, rights, privileges,
restrictions and conditions attaching to each series of Class A
Special shares including, without limiting the generality of the
foregoing, the rate or amount of dividends or the method of
calculating dividends, the dates of payment, the redemption, purchase
and/or conversion, and any sinking fund or other provisions, subject
to regulatory approval, if applicable;
(ii) The Class A Special shares of each series shall, with respect to the
payment of dividends and the distribution of assets or return of
capital in the event of liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, or any other return of
capital or distribution of the assets of the Corporation among its
shareholders for the purposes of winding up its affairs, rank on a
parity with the Special shares of every other class or series and be
entitled to preference over the common shares and over any other
shares of the Corporation ranking junior to the Class A Special shares
as may be fixed in accordance with clause (i);
(iii) If any amounts payable on the return of capital in respect of a
series of Class A Special shares are not paid in full, all series of
Class A Special shares shall participate ratably in respect of such
dividends and return of capital;
(iv) The Class A Special shares of any series may be made convertible into
common shares;
(v) Unless the directors otherwise determine, the holder of each share of
a series of Class A Special shares shall not be entitled to vote at a
meeting of shareholders.
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<PAGE>
9. The issue, transfer or ownership of shares is/is not restricted and the
restrictions (if any) are as follows:
None.
10. Other provisions, (if any):
None.
11. The statements required by subsection 178(2) of the Business Corporations
Act are attached as Schedule "A".
12. A copy of the amalgamation agreement or directors resolutions (as the case
may be) is/are attached as Schedule "B".
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<PAGE>
These articles are signed in duplicate.
Names of the amalgamating corporations and signatures and descriptions of office
of their proper officers.
BIOVAIL CORPORATION
INTERNATIONAL
By: /s/ Robert A. Podruzny
--------------------------------------
Robert A. Podruzny, President
By: /s/ Kenneth C. Cancellara
--------------------------------------
Kenneth C. Cancellara, Secretary
TXM CORPORATION
By: /s/ Eugene N. Melnyn
--------------------------------------
Eugene N. Melnyk, Director
By: ______________________________________
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<PAGE>
SCHEDULE "A"
STATEMENT OF DIRECTOR OR OFFICER
I, Kenneth Cancellara, the Senior Vice-President and Secretary of Biovail
Corporation International, one of the amalgamating corporations (hereinafter
called the "Corporation") hereby state as follows:
There are reasonable grounds for believing that:
(a) The Corporation is and the Amalgamated Corporation will be able to pay
its liabilities as they become due;
(b) The realizable value of the assets of the Amalgamated Corporation will
not be less than the aggregate of its liabilities and stated capital
of all classes;
(c) No creditor will be prejudiced by the amalgamation; and
(d) The Corporation has not received notice from any creditor of the
Corporation objecting to the amalgamation.
DATED the 15th day of February, 2000.
/s/ Kenneth Cancellara
-----------------------------------
Kenneth Cancellara,
Senior Vice-President and Secretary
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<PAGE>
SCHEDULE "A"
STATEMENT OF DIRECTOR OR OFFICER
I, Kenneth Cancellara, Secretary of TMX Corporation, one of the
amalgamating corporations (hereinafter called the "Corporation") hereby state as
follows:
There are reasonable grounds for believing that:
(a) The Corporation is and the Amalgamated Corporation will be able to pay
its liabilities as they become due;
(b) The realizable value of the assets of the Amalgamated Corporation will
not be less than the aggregate of its liabilities and stated capital
of all classes;
(c) No creditor will be prejudiced by the amalgamation; and
(d) The Corporation has not received notice from any creditor of the
Corporation objecting to the amalgamation.
DATED the 15th day of February, 2000.
/s/ Kenneth Cancellara
-----------------------------------
Kenneth Cancellara,
Secretary
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<PAGE>
SCHEDULE "B"
CERTIFIED COPY OF
RESOLUTION OF THE DIRECTORS OF
BIOVAIL CORPORATION INTERNATIONAL
AMALGAMATION
WHEREAS Biovail Corporation International (the "Corporation") is the
holding corporation of a wholly-owned subsidiary, TXM Corporation ("TXM"):
AND WHEREAS the Corporation has agreed to amalgamate with TXM pursuant to
subsection 177(I) of the Business Corporations Act (Ontario) (the "Act");
NOW THEREFORE BE IT RESOLVED THAT:
1. The amalgamation of the Corporation and TXM pursuant to subsection 177(I)
of the Act be and the same is hereby approved;
2. Upon the endorsement of a certificate of amalgamation pursuant to
subsection 178(4) of the Act, the shares in the capital of TXM shall be
cancelled without any repayment of capital in respect thereof;
3. The articles of amalgamation of the Amalgamated Corporation (the
"Amalgamated Corporation") shall be the same as the articles of the
Corporation and the name of the Amalgamated Corporation shall be "Biovail
Corporation";
4. No securities shall be issued and no assets shall be distributed by the
Amalgamated Corporation in connection with such amalgamation;
5. The by-laws of the Amalgamated Corporation shall be the same as the by-laws
of the Corporation;
6. Any officer or director of the Corporation be hereby authorized and
directed to execute on behalf of the Corporation under its corporate seal
or otherwise, all documents necessary or desirable with such additions,
deletions or variations thereon as the said signing officer may approve, to
effect such amalgamation including the execution and delivery to the
Ministry of Consumer and Commercial Relations of articles of amalgamation
for such purpose.
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<PAGE>
I HEREBY CERTIFY that the foregoing is a true copy of a resolution passed
by the directors of Biovail Corporation International and that the same is still
in full force and effect, unamended.
DATED the 15th day of February, 2000.
/s/ Kenneth Cancellara
-----------------------------------
Kenneth Cancellara,
Secretary
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<PAGE>
SCHEDULE "B"
CERTIFIED COPY OF
RESOLUTION OF THE DIRECTORS OF
TXM CORPORATION
AMALGAMATION
WHEREAS TXM Corporation (the "Corporation") is a wholly-owned subsidiary of
Biovial Corporation ("Biovail"):
AND WHEREAS the Corporation has agreed to amalgamate with Biovail pursuant
to subsection 177(I) of the Business Corporations Act (Ontario) (the "Act");
NOW THEREFORE BE IT RESOLVED THAT:
1. The amalgamation of the Corporation and Biovail pursuant to subsection
177(I) of the Act be and the same is hereby approved;
2. Upon the endorsement of a certificate of amalgamation pursuant to
subsection 178(4) of the Act, the shares in the capital of the Corporation
shall be cancelled without any repayment of capital in respect thereof;
3. The articles of amalgamation of the Amalgamated Corporation (the
"Amalgamated Corporation") shall be the same as the articles of Biovail and
the name of the Amalgamated Corporation shall be "Biovail Corporation";
4. No securities shall be issued and no assets shall be distributed by the
Amalgamated Corporation in connection with such amalgamation;
5. The by-laws of the Amalgamated Corporation shall be the same as the by-laws
of Biovail;
6. Any officer or director of the Corporation be hereby authorized and
directed to execute on behalf of the Corporation under its corporate seal
or otherwise, all documents necessary or desirable with such additions,
deletions or variations thereon as the said signing officer may approve,
such approval to be conclusively evidenced by his execution of the said
documents, and to do all things necessary or desirable to give effect to
such amalgamation including the execution and delivery to the Ministry of
Consumer and Commercial Relations of articles of amalgamation for such
purpose.
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<PAGE>
I HEREBY CERTIFY that the foregoing is a true copy of a resolution passed
by the directors of TXM Corporation and that the same is still in full force and
effect, unamended.
DATED the 15th day of February, 2000.
/s/ Kenneth Cancellara
-----------------------------------
Kenneth Cancellara,
Secretary
EXHIBIT NO. 9
Adopted as By-Law No. A of Biovail
Corporation International upon
amalgamation dated January 1, 1999
BY-LAW NO. A
A by-law relating generally to
the conduct of the affairs of
BIOVAIL CORPORATION INTERNATIONAL
CONTENTS
1. Interpretation
2. Business of the Corporation
3. Directors
4. Committees
5. Officers
6. Protection of Directors, Officers and Others
7. Shares
8. Dividends and Rights
9. Meetings of Shareholders
10. Information Available to Shareholders
11. Divisions and Departments
12. Notices
13. Effective Date
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of Biovail Corporation
International (hereinafter called the "Corporation") as follows:
<PAGE>
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SECTION ONE
INTERPRETATION
1.01 Definitions
In the by-laws of the Corporation, unless the context otherwise requires:
(1) "Act" means the Business Corporations Act, R.S.O. 1990 c. B.16 and the
regulations made pursuant thereto, as from time to time amended, and
every statute that may be substituted therefor and, in the case of
such substitution, any reference 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;
(2) "appoint" includes "elect" and vice versa;
(3) "board" means the board of directors of the Corporation;
(4) "by-laws" means this by-law and all other by-laws of the Corporation
from time to time in force and effect;
(5) "meeting of shareholders" includes an annual meeting of shareholders
and a special meeting of shareholders; "special meeting of
shareholders" includes a meeting of any class or classes of
shareholders and a special meeting of all shareholders entitled to
vote at an annual meeting of shareholders;
(6) "non-business day" means Saturday, Sunday and any other day that is a
holiday as defined in the Interpretation Act (Ontario);
(7) "recorded address" means in the case of a shareholder his address as
recorded in the securities register; and in the case of joint
shareholders the address appearing in the securities register in
respect of such joint holding or the first address so appearing if
there is more than one;
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and in the case of a director, officer, auditor or member of a
committee of the board his latest address as recorded in the records
of the Corporation;
(8) "signing officer" means, in relation to any instrument, any person
authorized to sign the same on behalf of the Corporation by paragraph
2.03 or by a resolution passed pursuant thereto;
(9) all terms contained in the by-laws and which are defined in the Act
shall have the meanings given to such terms in the Act; and
(10) the singular shall include the plural and the plural shall include the
singular; the masculine shall include the feminine and neuter genders;
and the word "person" shall include individuals, bodies corporate,
corporations, companies, partnerships, syndicates, trusts,
unincorporated organizations and any number or aggregate of persons.
SECTION TWO
BUSINESS OF THE CORPORATION
2.01 Corporate Seal
The Corporation may have a corporate seal which shall be adopted and may be
changed by resolution of the board.
2.02 Financial Year
The financial year of the Corporation shall be as determined by the board
from time to time.
2.03 Execution of Instruments
Contracts, documents or instruments in writing requiring the signature of
the Corporation may be signed on behalf of the Corporation by any two of the
Chairman, the President or the Secretary of the Corporation together, provided
that (i) any such contracts, documents or instruments in writing that involve a
consideration of $250,000 or more must be signed by the Chairman and any one
other officer of the Corpo-
<PAGE>
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ration and (ii) any such contracts, etc. that involve a consideration of less
than $100,000 may be signed by any two officers of the Corporation and
contracts, documents and instruments in writing so signed shall be binding upon
the Corporation without any further authorization or formality. The board shall
have power from time to time by resolution to 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.
The seal of the Corporation may when required 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.
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, movable or immovable,
agreements, releases, receipts and discharges for the payment of money or other
obligations, conveyances, transfers and assignments of shares, share warrants,
stocks, bonds, debentures, notes or other securities and all paper writings.
The signature or signatures of the Chairman of the Board (if any), the
President, a Vice-President, the Secretary, the Treasurer, an Assistant
Secretary, an Assistant Treasurer or any director of the Corporation and/or any
other officer or officers, person or persons, appointed as aforesaid by
resolution of the board may, if specifically authorized by resolution of the
directors, be printed, engraved, lithographed or otherwise mechanically
reproduced upon any contracts, documents or instruments in writing or bonds,
debentures, notes 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, notes or other securities of the Corporation on
which the signature or signatures of any of the foregoing officers or directors
or persons authorized as aforesaid shall be so reproduced pursuant to special
authorization by resolution of the board, shall be deemed to have been manually
signed by such officers or directors or persons whose signature or signatures is
or are so reproduced and shall be as valid to all intents and purposes as if
they had been signed manually and notwithstanding that the officers or directors
or persons whose signature or signatures is or are so reproduced may have ceased
to hold office at the date of the delivery or issue of such contracts, documents
or instruments in writing or
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bonds, debentures, notes or other securities of the Corporation.
2.04 Banking Arrangements
The banking business of the Corporation, or any part thereof, including,
without limitation, the borrowing of money and the giving of security therefor,
shall be transacted with such banks, trust companies or other bodies corporate
or organizations as may from time to time be designated by or under the
authority of the board. Such banking business or any part thereof shall be
transacted under such agreements, instructions and delegations of powers as the
board may from time to time by resolution prescribe or authorize.
2.05 Custody of Securities
All shares and securities owned by the Corporation shall be lodged (in the
name of the Corporation) with a chartered bank or a trust company or in a safety
deposit box or, if so authorized by resolution of the board, with such other
depositaries or in such other manner as may be determined from time to time by
resolution of the board.
All share certificates, bonds, debentures, notes or other obligations or
securities belonging to the Corporation may be issued or held in the name of a
nominee or nominees of the Corporation (and if issued or held in the names of
more than one nominee shall be held in the names of the nominees jointly with
the right of survivorship) and shall be endorsed in blank with endorsement
guaranteed in order to enable transfer to be completed and registration to be
effected.
2.06 Voting Shares and Securities in other Companies
All of the shares or other securities carrying voting rights of any other
body corporate held from time to time by the Corporation may be voted at any and
all meetings of shareholders, bondholders, debenture holders or holders of other
securities (as the case may be) of such other body corporate and in such manner
and by such person or persons as any two of the Chairman together with one other
officer shall from time to time determine. The proper signing officers of the
Corporation may also from time to time execute and deliver for and on behalf of
the Corporation proxies and/or arrange for the issuance of voting certificates
and/or other evidence of the right to
<PAGE>
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vote in such names as they may determine without the necessity of a resolution
or other action by the board.
SECTION THREE
DIRECTORS
3.01 Number of Directors and Quorum
The number of directors of the Corporation shall be the number of directors
as specified in the articles or, where a minimum and maximum number of directors
is provided for in the articles, the number of directors of the Corporation
shall be the number of directors determined from time to time by special
resolution or, if a special resolution empowers the directors to determine the
number, the number of directors determined by resolution of the board. Subject
to paragraph 3.08, the quorum for the transaction of business at any meeting of
the board shall be two-thirds (2/3) of the number of directors then in office
and or in such greater number of directors as the board may from time to time by
resolution determine, provided that if the Corporation has fewer than three
directors, all directors must be present at any meeting of the board to
constitute a quorum.
3.02 Qualification
No person shall be qualified for election as a director if he is less than
18 years of age; if he is of unsound mind and has been so found by a court in
Canada or elsewhere; if he is not an individual; or if he has the status of a
bankrupt. A director need not be a shareholder. A majority of the directors
shall be resident Canadians, provided that if the Corporation has only one or
two directors, that director or one of the two directors, as the case may be,
shall be a resident Canadian. If the Corporation is or becomes an offering
corporation within the meaning of the Act, at least one-third of the directors
of the Corporation shall not be officers or employees of the Corporation or any
of its affiliates.
3.03 Election and Term
The election of directors shall take place at the first meeting of
shareholders and at each succeeding annual meeting of shareholders and all the
directors then in office shall retire but, if qualified, shall be eligible for
re-
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election. The number of directors to be elected at any such meeting shall be
the number of directors as specified in the articles or, if a minimum and
maximum number of directors is provided for in the articles, the number of
directors determined by special resolution or, if the special resolution
empowers the directors to determine the number, the number of directors
determined by resolution of the board. The voting on the election shall be by
show of hands unless a ballot is demanded by any shareholder. If an election of
directors is not held at the proper time, the incumbent directors shall continue
in office until their successors elected.
3.04 Removal of Directors
Subject to the provisions of the Act, the shareholders may by ordinary
resolution passed at a meeting specially called for such purpose remove any
director from office and the vacancy created by such removal may be filled at
the same meeting failing which it may be filled by a quorum of the directors.
3.05 Vacation of Office
A director ceases to hold office when he dies or, subject to the Act,
resigns; he is removed from office by the shareholders in accordance with the
Act; he becomes of unsound mind and is so found by a court in Canada or
elsewhere or if he acquires the status of a bankrupt.
3.06 Vacancies
Subject to the Act, a quorum of the board may fill a vacancy in the board,
except a vacancy resulting from an increase in the number or maximum number of
directors or from a failure of the shareholders to elect the number of directors
required to be elected at any meeting of shareholders. In the absence of a
quorum of the board, or if the vacancy has arisen from a failure of the
shareholders to elect the number of directors required to be elected at any
meeting of shareholders, the directors then in office shall forthwith call a
special meeting of shareholders to fill the vacancy. If the directors then in
office fail to call such meeting or if there are no directors then in office,
any shareholder may call the meeting.
3.07 Action by the Board
The board shall manage or supervise the management of the business and
affairs of the Corporation. Subject to para-
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graphs 3.08 and 3.09, the powers of the board may be exercised at a meeting at
which a quorum is present or by resolution in writing signed by all the
directors entitled to vote on that resolution at a meeting of the board. Where
there is a vacancy in the board, the remaining directors may exercise all the
powers of the board so long as a quorum of the board remains in office.
3.08 Canadian Majority
The board shall not transact business at a meeting other than to fill a
vacancy in the board, unless a majority of the directors present are resident
Canadians, except where
(a) a resident Canadian director who is unable to be present approves in
writing or by telephone or other communications facilities the
business transacted at the meeting; and
(b) a majority of resident Canadians would have been present had that
director been present at the meeting.
3.09 Meeting by Telephone
If all the directors of the Corporation present or participating in the
meeting consent, a director may participate in a meeting of the board or of a
committee of the board by means of such telephone, electronic or other
communications facilities as permit all persons participating in the meeting to
communicate with each other simultaneously and instantaneously, and a director
participating in such a meeting by such means is deemed to be present at the
meeting. Any such consent shall be effective whether given before or after the
meeting to which it relates and may be given with respect to all meetings of the
board and of committees of the board held while a director holds office.
3.10 Place of Meetings
Meetings of the board may be held at any place within or outside Ontario.
In any financial year of the Corporation a majority of the meetings of the board
need not be held within Canada.
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3.11 Calling of Meetings
Subject to the Act, meetings of the board shall be held from time to time
on such day and at such time and at such place as the Chairman and any one other
officer of the Corporation may determine and any two of the Chairman, the
President or the Secretary shall convene a meeting of the board.
3.12 Notice of Meeting
Notice of the date, time and place of each meeting of the board shall be
given in the manner provided in paragraph 12.01 to each director not less than
seven (7) days before the time when the meeting is to be held. A notice of a
meeting of directors need not specify the purpose of or the business to be
transacted at the meeting except where the Act requires such purpose or business
to be specified or except where the meeting is to deal with the removal from
office of any director or officer or the approval of any matter requiring
shareholder approval or any matter proposed to be put before the shareholders
for approval or consideration.
A director may in any manner waive notice of or otherwise consent to a
meeting of the board.
3.13 First Meeting of New Board
Provided a quorum of directors is present, each newly elected board may
without notice hold its first meeting immediately following the meeting of a
shareholders at which such board is elected.
3.14 Adjourned Meeting
Notice of an adjourned meeting of the board is not required if the time and
place of the adjourned meeting is announced at the original meeting.
3.15 Regular Meetings
The board may appoint a day or days in any month or months for regular
meetings of the board at a place and hour to be named. A copy of any resolution
of the board fixing the place and time of such regular meetings shall be sent to
each director forthwith after being passed, but no other notice shall be
required for any such regular meeting except where the Act requires the purpose
thereof or the business to be transacted thereat to be specified.
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3.16 Chairman
The chairman of any meeting of the board shall be the Chairman of the Board
or if the Chairman is not present, such director as the board may designate.
3.17 Votes to Govern
At all meetings of the board every question shall be decided by a majority
of the votes cast on the question. In case of an equality of votes the chairman
of the meeting shall be entitled to a second or casting vote.
3.18 Conflict of Interest
A director or officer who is a party to, or who is a director or officer of
or has a material interest in any person who is a party to, a material contract
or transaction or proposed material contract or transaction with the Corporation
shall disclose in writing to the Corporation or request to have entered in the
minutes of the meetings of the directors the nature and extent of his interest
at the time and in the manner provided by the Act. Any such contract or
transaction or proposed contract or transaction shall be referred to the board
or shareholders for approval even if such contract is one that in the ordinary
course of the Corporation's business would not require approval by the board or
shareholders, and a director interested in a contract so referred to the board
shall not vote on any resolution to approve the same except as permitted by the
Act.
3.19 Remuneration and Expenses
The directors shall be paid such remuneration for their services as the
board may from time to time determine. The directors shall also be entitled to
be reimbursed for travelling and other expenses properly incurred by them in
attending meetings of the shareholders or of the board or any committee thereof
or otherwise in the performance of their duties. Nothing herein contained shall
preclude any director from serving the Corporation in any other capacity and
receiving remuneration therefor.
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SECTION FOUR
COMMITTEES
4.01 Committee of Directors
The board may appoint a committee of directors, however designated, and
delegate to such committee any of the powers of the board except those which
pertain to items which, under the Act, a committee of directors has no authority
to exercise. A majority of the members of such committee shall be resident
Canadians.
4.02 Transaction of Business
The powers of a committee of directors may be exercised by a meeting at
which a quorum is present or by resolution in writing signed by all members of
such committee who would have been entitled to vote on that resolution at a
meeting of the committee. Meetings of such committee may be held at any place
within or outside Ontario.
4.03 Audit Committee
The board may, and shall if the Corporation becomes an offering corporation
within the meaning of the Act, elect annually from among its number an audit
committee to be composed of not fewer than three directors of whom a majority
shall not be officers or employees of the Corporation or its affiliates. The
audit committee shall have the powers and duties provided in the Act.
4.04 Advisory Committees
The board may from time to time appoint such other committees as it may
deem advisable, but the functions of any such other committees shall be advisory
only.
4.05 Procedure
Unless otherwise determined by the board, each committee shall have power
to fix its quorum at not less than a majority of its members, to elect its
chairman and to regulate its procedure.
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SECTION FIVE
OFFICERS
5.01 Appointment
The board may from time to time appoint a Chairman of the Board, a
President, one or more Vice-Presidents (to which title may be added words
indicating seniority or function), a Secretary, a Treasurer and such other
officers as the board may determine, including one or more assistants to any of
the officers so appointed. The board may specify the duties of and, in
accordance with this by-law and subject to the provisions of the Act, delegate
to such officers powers to manage the business and affairs of the Corporation.
Subject to paragraph 5.02, an officer may but need not be a director and one
person may hold more than one office. In case and whenever the same person holds
the offices of Secretary and Treasurer, he may but need not be known as the
Secretary-Treasurer. All officers shall sign such contracts, documents, or
instruments in writing as require their respective signatures. In the case of
the absence of inability to act of any officer or for any other reason that the
board may deem sufficient, the board may delegate all or any of the powers of
such officer to any other officer or to any director for the time being.
5.02 Chairman of the Board
The Chairman of the Board shall be a director and shall, when present,
preside at all meetings of the board and committees of the board. The Chairman
of the Board shall be vested with and may exercise such powers and shall perform
such other duties as may from time to time be assigned to him by the board.
5.03 President
The President shall have general supervision of the business and affairs of
the Corporation and such other powers and duties as the board may specify from
time to time.
5.04 Vice-President
Each Vice-President shall have such powers and duties as the board or the
President may specify. The Vice-President or, if more than one, the
Vice-President designated from time to time by the board or by the President,
shall be vested with
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all the powers and shall perform all the duties of the President in the absence
or inability or refusal to act of the President, provided, however, that a
Vice-President who is not a director shall not preside as chairman at any
meeting of the board and that a Vice-President who is not a director and
shareholder shall not preside as chairman at any meeting of shareholders.
5.05 Secretary
The Secretary shall give or cause to be given as and when instructed, all
notices to shareholders, directors, officers, auditors and members of committees
of the board; he shall be the custodian of the stamp or mechanical device
generally used for affixing the corporate seal of the Corporation and all books,
papers, records, documents and instruments belonging to the Corporation, except
when some other officer or agent has been appointed for that purpose; and he
shall have such other powers and duties as the board may specify.
5.06 Treasurer
The Treasurer shall keep proper accounting records in compliance with the
Act and shall be responsible for the deposit of money, the safekeeping of
securities and the disbursement of the funds of the Corporation; he shall render
to the board whenever required an account of all his transactions as Treasurer
and of the financial position of the Corporation; and he shall have such other
powers and duties as the board may specify. Unless and until the board
designates any other officer of the Corporation to be the Chief Financial
Officer of the Corporation, the Treasurer shall be the Chief Financial Officer
of the Corporation.
5.07 Powers and Duties of Other Officers
The powers and duties of all other officers shall be such as the terms of
their engagement call for or as the board may specify. Any of the powers and
duties of an officer to whom an assistant has been appointed may be exercised
and performed by such assistant, unless the board otherwise directs.
5.08 Variation of Powers and Duties
The board may from time to time and subject to the provisions of the Act,
vary, add to or limit the powers and duties of any officer.
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5.09 Term of Office
The board, in its discretion, may remove any officer of the Corporation,
with or without cause, without prejudice to such officer's rights under any
employment contract. Otherwise each officer appointed by the board shall hold
office until his successor is appointed or until the earlier of his resignation
or death.
5.10 Terms of Employment and Remuneration
The terms of employment and remuneration of an officer appointed by the
board shall be settled by it from time to time. The fact that any officer or
employee is a director or shareholder of the Corporation shall not disqualify
him from receiving such remuneration as may be so determined.
5.11 Conflict of Interest
An officer shall disclose his interest in any material contract or
transaction or proposed material contract or transaction with the Corporation in
accordance with paragraph 3.18.
5.12 Agents and Attorneys
The board shall have power from time to time to appoint agents or attorneys
for the Corporation in or outside Canada with such powers or otherwise
(including the powers to subdelegate) as may be thought fit.
5.13 Fidelity Bonds
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The board may require such officers, employees and agents of the
Corporation as the board deems advisable to furnish bonds for the faithful
discharge of their powers and duties, in such form and with such surety as the
board may from time to time determine but no director shall be liable for
failure to require any such bond or for the insufficiency of any such bond or
for any loss by reason of the failure of the Corporation to receive any
indemnity thereby provided.
ARTICLE VI
PROTECTION OF
DIRECTORS, OFFICERS AND OTHERS
6.01 Submissions of Contracts or Transactions to Shareholders for Approval
The board in its discretion may submit any contract, act or transaction for
approval, ratification or confirmation at any meeting of the shareholders called
for the purpose of considering the same and any contract, act or transaction
that shall be approved, 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.
6.02 For the Protection of Directors and Officers
In supplement of and not by way of limitation upon any rights conferred
upon directors by the provisions of the Act, it is declared that no director
shall be disqualified by his office from, or vacate his office by reason of,
holding any office or 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 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 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 the Act,
no contract or arrangement entered into by or on behalf of the Corporation in
which any director shall be in any way directly or indirectly interested shall
be avoided or voidable and no director 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 the fiduciary existing or
established thereby. Subject to the provisions of the Act and to paragraph 3.18,
no director shall be obliged to make any declaration of interest or refrain from
voting in respect of a contract or proposed
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contract with the Corporation in which such director is in any way directly or
indirectly interested.
6.03 Limitation of Liability
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 on 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
persons, firm or corporation including any person, firm or corporation with whom
or which any moneys, securities or effects shall be lodged or deposited 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, in good
faith and in the best interests of the Corporation and in connection therewith
to exercise the degree of 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. 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 be a member of a
firm or a shareholder, director or officer of a company which is employed by or
performs services for the Corporation, the fact of his being a director or
officer of the Corporation shall not disentitle such director or officer or such
firm or company, as the case may be, from receiving proper remuneration for such
services.
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6.04 Indemnity
Subject to the limitations contained in 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
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 interest
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 such person in such other
circumstances as the Act permits or requires.
6.05 Insurance
The Corporation may purchase and maintain insurance for the benefit of any
person referred to in paragraph 6.04 against such liabilities and in such
amounts as the board may from time to time determine and are permitted by the
Act.
ARTICLE VII
SHARES
7.01 Allotment
Upon the approval of two-thirds (2/3) of the total number of directors, the
board may from time to time allot or grant options to purchase whole or any part
of the authorized and unissued shares of the Corporation at such times and to
such persons and for such consideration as the board shall determine, provided
that no share shall be issued until it is fully paid as provided by the Act.
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7.02 Commissions
The board may from time to time authorize the Corporation to pay a
reasonable commission to any person in consideration of his purchasing or
agreeing to purchase shares of the Corporation, whether from the Corporation or
from any other person, or procuring or agreeing to procure purchasers for any
such shares.
7.03 Registration of Transfers
Subject to the provisions of the Act, no transfer of shares shall be
registered in a securities register except upon presentation of the certificate
representing such shares with an endorsement which complies with the Act made
thereon or delivered therewith duly executed by an appropriate person as
provided by the Act, together with such reasonable assurance that the
endorsement is genuine and effective as the board may from time to time
prescribe, upon payment of all applicable taxes and any fees prescribed by the
board, upon compliance with such restrictions on transfer as are authorized by
the articles and upon satisfaction of any lien referred to in paragraph 7.05.
7.04 Transfer Agents and Registrars
The board may from time to time appoint one or more agents to maintain, in
respect of each class of securities of the Corporation issued by it in
registered form, a securities register and one or more branch securities
registers. Such a person may be designated as transfer agent and registrar
according to his functions and one person may be designated both registrar and
transfer agent. The board may at any time terminate such appointment.
7.05 Lien for Indebtedness
The Corporation shall have a lien on any share registered in the name of a
shareholder or his legal representatives for a debt of that shareholder to the
Corporation, provided that if the shares of the Corporation are listed on a
stock exchange recognized by the Ontario Securities Commission, the Corporation
shall not have such lien. The Corporation may enforce any lien that it has on
shares registered in the name of a shareholder indebted to the Corporation by
the sale of the shares thereby affected or by any other action, suit, remedy or
proceeding authorized or permitted by law and, pending such en-
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forcement, the Corporation may refuse to register a transfer of the whole or any
part of such shares.
7.06 Non-recognition of Trusts
Subject to the provisions of the Act, the Corporation may treat as absolute
owner of any share the person in whose name the share is registered in the
securities register as if that person had full legal capacity and authority to
exercise all rights of ownership, irrespective of any indication to the contrary
through knowledge or notice or description in the Corporation's records or on
the share certificate.
7.07 Share Certificates
Every holder of one or more shares of the Corporation shall be entitled, at
his option, to a share certificate, or to a non-transferable written
acknowledgment of his right to obtain a share certificate, stating the number
and class or series of shares held by him as shown on the securities register.
Share certificates and acknowledgments of a shareholder's right to a share
certificate, respectively, shall be in such form as the board shall from time to
time approve. Any share certificate shall be signed in accordance with paragraph
2.03 and need not be under the corporate seal; provided that, unless the board
otherwise determines, certificates representing shares in respect of which a
transfer agent and/or registrar has been appointed shall not be valid unless
countersigned by or on behalf of such transfer agent and/or registrar. The
signature of one of the signing officers or, in the case of share certificates
which are not valid unless countersigned by or on behalf of a transfer agent
and/or registrar, the signatures of both signing officers, may be printed or
mechanically reproduced in facsimile upon share certificates and every such
facsimile signature shall for all purposes be deemed to be the signature of the
officer whose signature it reproduces and shall be binding upon the Corporation.
A share certificate executed as aforesaid shall be valid notwithstanding that
one or both of the officers whose facsimile signature appears thereon no longer
holds office at the date of issue of the certificate.
7.08 Replacement of Share Certificates
The board or any officer or agent designated by the board may in its or his
discretion direct the issue of a new share certificate in lieu of and upon
cancellation of a share certificate that has been mutilated or in substitution
for a share certificate claimed to have been lost, destroyed or
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wrongfully taken on payment of such fee, not exceeding $3.00, and on such terms
as to indemnity, reimbursement of expenses and evidence of loss and of title as
the board may from time to time prescribe, whether generally or in any
particular case.
7.09 Joint Shareholders
If two or more persons are registered as joint holders of any share, the
Corporation shall not be bound to issue more than one certificate in respect
thereof, and delivery of such certificate to one of such persons shall be
sufficient delivery to all of them. Any one of such persons may give effectual
receipts for the certificate issued in respect thereof or for any dividend,
bonus, return of capital or other money payable or warrant issuable in respect
of such shares.
7.10 Deceased Shareholders
In the event of the death of a holder, or of one of the joint holders, of
any share, the Corporation shall not be required to make any entry in the
securities register in respect thereof or to make payment of any dividends
thereon except upon production of all such documents as may be required by law
and upon compliance with the reasonable requirements of the Corporation and its
transfer agents.
SECTION EIGHT
DIVIDENDS AND RIGHTS
8.01 Dividends
Subject to the provisions of the Act, the board may from time to time
declare dividends payable to the shareholders according to their respective
rights and interest in the Corporation. Dividends may be paid in money or
property or by issuing fully paid shares of the Corporation.
8.02 Dividend Cheques
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 mail to such registered holder at his recorded
address, unless such holder otherwise directs. In the case of joint
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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
recorded address. 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.
8.03 Non-receipt of Cheques
In the event of non-receipt of any dividend cheque by the person to whom it
is sent as aforesaid, 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.
8.04 Record Date for Dividends and Rights
The board may fix in advance a date, preceding by not more than 50 days the
date for the payment of any dividend or the date for the issue of any warrant or
other evidence of the right to subscribe for securities of the Corporation, as a
record date for the determination of the persons entitled to receive payment of
such dividend or to exercise the right to subscribe for such securities, and
notice of any such record date shall be given not less than seven days before
such record date in the manner provided by the Act. If no record date is so
fixed, the record date for the determination of the persons entitled to receive
payment of any dividend or to exercise the right to subscribe for securities of
the Corporation shall be at the close of business on the day on which the
resolution relating such dividend or right to subscribe is passed by the board.
8.05 Unclaimed Dividends
Any dividend unclaimed after a period of six years from the date on which
the same has been declared to be payable shall be forfeited and shall revert to
the Corporation.
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SECTION NINE
MEETINGS OF SHAREHOLDERS
9.01 Annual Meetings
The annual meeting of shareholders shall be held at such time in each year
as the board or the Chairman of the Board together with any one other officer of
the Corporation may from time to time determine, for the purpose of considering
the financial statements and reports required by the Act to be placed before the
annual meeting, electing directors, appointing an auditor and for the
transaction of such other business as may properly be brought before the
meeting.
9.02 Special Meetings
The board or the Chairman of the Board together with any one other officer
of the Corporation shall have power to call a special meeting of shareholders at
any time.
9.03 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 in
situated or, if the board shall so determine, at some other place in Canada or,
if all the shareholders entitled to vote at the meeting so agree, at some place
outside Canada.
9.04 Notice of Meetings
Notice of the time and place of each meeting of shareholders shall be given
in the manner provided in paragraph 12.01 not less than 21 days nor more than 50
days before the date of the meeting to each director, to the auditor and to each
shareholder who at the close of business on the record date for notice is
entered in the securities register as the holder of one or more shares carrying
the right to vote at the meeting. Notice of a meeting of shareholders called for
any purpose other than consideration of the financial statements and auditor's
report, election of directors and reappointment of the incumbent auditor shall
state or be accompanied by a statement of the nature of such business in
sufficient detail to permit the shareholder to form a reasoned judgment thereon
and the text of any special resolution or by-law to be submitted to the meeting.
A shareholder and any other person entitl-
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ed to attend a meeting of shareholders may in any manner waive notice of or
otherwise consent to a meeting of shareholders.
9.05 List of Shareholders Entitled to Notice
For every meeting of shareholders, the Corporation shall prepare a list of
shareholders entitled to receive notice of the meeting, arranged in alphabetical
order and showing the number of shares held by each shareholder entitled to vote
at the meeting. If a record date for the meeting is fixed pursuant to paragraph
9.06, the shareholders listed shall be those registered at the close of business
on such record date. If no record date is fixed, the shareholders listed shall
be those registered at the close of business on the day immediately preceding
the day on which notice of the meeting is given, or where no such notice is
given, the day on which the meeting is held. The list shall be available for
examination by any shareholder during usual business hours at the registered
office of the Corporation or at the place where the central securities register
is maintained and at the meeting for which the list was prepared.
9.06 Record Date for Notice
The board may fix in advance a date, preceding the date of any meeting of
shareholders by not more than 50 days and not less than 21 days, as a record
date for the determination of the shareholders entitled to notice of the
meeting, provided that notice of any such record date shall be given not less
than seven days before such record date by newspaper advertisement in the manner
provided in the Act and, if any shares of the Corporation are listed for trading
on a stock exchange in Canada, by written notice to each such stock exchange. If
no record date is so fixed, the record date for the determination of the
shareholders entitled to notice of the meeting shall be at the close of business
on the day immediately preceding the day on which the notice is given or, if no
notice is given, the day on which the meeting is held.
9.07 Meetings without Notice
A meeting of shareholders may be held without notice at any time and place
permitted by the Act
(a) if all the shareholders entitled to vote thereat are present in person
or represented by proxy
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waive notice of or otherwise consent to such meeting being held, and
(b) if the auditor and the directors are present or waive notice of or
otherwise consent to such meeting being held, so long as such
shareholders, auditor and directors present are not attending for the
express purpose of objecting to the transaction of any business on the
grounds that the meeting is not lawfully called. At such a meeting any
business may be transacted which the Corporation at a meeting of
shareholders may transact. If the meeting is held at a place outside
Canada, shareholders not present or represented by proxy, but who have
waived notice of or otherwise consented to such meeting, shall also be
deemed to have consented to the meeting being held at such place.
9.08 Chairman, Secretary and Scrutineers
The chairman of any meeting of shareholders shall be the first mentioned of
such of the following officers as have been appointed and who is present at the
meeting: the President or a Vice-President who is a director and a shareholder.
If no such officer is present within 15 minutes from the time fixed for holding
the meeting, the persons present and entitled to vote shall choose one of their
number to be chairman. If the Secretary of the Corporation is absent, the
chairman 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 a resolution or by the chairman with the
consent of the meeting.
9.09 Persons Entitled to be Present
The only persons entitled to be present at a meeting of shareholders shall
be those entitled to vote thereat, the directors and the auditor of the
Corporation and others who, although not entitled to vote are entitled or
required under any provision of the Act or the articles or the by-laws to be
present at the meeting. Any other person may be admitted only on the invitation
of the chairman of the meeting or with the consent of the meeting.
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9.10 Quorum
Subject to paragraph 9.20, two persons present in person, each being a
shareholder entitled to vote at the meeting or a duly appointed proxyholder for
an absent shareholder entitled to vote at the meeting shall be a quorum at any
meeting of the shareholders for the choice of a chairman of the meeting and the
adjournment of the meeting; for all other purposes a quorum at any meeting of
shareholders unless a greater number is required to be present or a greater
number of shares are required to be represented at the meeting by the Act or by
the articles or any other by-law shall be persons present in person, each being
a shareholder entitled to vote at the meeting or a duly appointed proxyholder
for an absent shareholder entitled to vote at the meeting not being less than
two in number and holding or representing by proxy not less than 51% of the
total number of the issued shares of the Corporation for the time being enjoying
voting rights at such meeting. If at any meeting, the requisite quorum is not
present within half an hour after the time appointed for the meeting, then the
meeting shall be adjourned to such date not being less than 10 days later and to
such time and place as may be announced by the chairman at the meeting and
subject to 9.18, it shall not be necessary to give notice of the adjourned
meeting.
At such adjourned meeting the persons present at such meeting, provided
that there are at least two such persons present in person, each being a
shareholder entitled to vote at the meeting or a duly appointed proxyholder for
an absent shareholder entitled to vote at the meeting, shall be a quorum for the
transaction of the business for which the meeting was originally called.
9.11 Right to Vote
Subject to the provisions of the Act as to authorized representatives of
any other body corporate or association, at any meeting of shareholders for
which the Corporation has prepared the list referred to in paragraph 9.05, every
person who is named in such list shall be entitled to vote the shares shown
opposite his name except to the extent that such person has transferred any of
his shares after the record date determined in accordance with paragraph 9.06
and the transferee, having produced properly endorsed certificates evidencing
such shares or having otherwise established that he owns such shares, has
demanded not later than 10 days before the meeting that his name be included in
such list. In any such case the transferee shall be entitled to vote the
transferred shares at
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the meeting. At any meeting of shareholders for which the Corporation has not
prepared the list referred to in paragraph 9.05, every person shall be entitled
to vote at the meeting who at the time is entered in the securities register as
the holder of one or more shares carrying the right to vote at such meeting.
9.12 Proxies
Every shareholder entitled to vote at a meeting of shareholders may appoint
a proxyholder, or one or more alternate proxyholders, who need not be
shareholders, to attend and act at the meeting in the manner and to the extent
authorized and with the authority conferred by the proxy. A proxy shall be in
writing executed by the shareholder or his attorney authorized in writing and
shall conform with the requirements of the Act.
9.13 Time for Deposit of Proxies
The board may by resolution specify in a notice calling a meeting of
shareholders a time, preceding the time of such meeting or an adjournment
thereof by not more than 48 hours exclusive of any part of a non-business day,
before which time proxies to be used at such meeting must be deposited. A proxy
shall be acted upon only if, prior to the time so specified, it shall have been
deposited with the Corporation or an agent thereof specified in such notice or,
if no such time is specified in such notice, only if it has been received by the
Secretary of the Corporation or by the chairman of the meeting or any
adjournment thereof prior to the time of voting.
9.14 Joint Shareholders
If two or more persons hold shares jointly, any one of them present in
person or represented by proxy at a meeting of shareholders may, in the absence
of the other or others, vote the shares; but if two or more of those persons are
present in person or represented by proxy and vote, they shall vote as one the
shares jointly held by them.
9.15 Votes to Govern
At any meeting of shareholders every question shall, unless otherwise
required by the articles or by-laws or by law, be determined by a majority of
the votes cast on the question. In case of an equality of votes either upon a
show of hands or
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upon a poll, the chairman of the meeting shall be entitled to a second or
casting vote.
9.16 Show of Hands
Subject to the provisions of the Act, 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 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.
9.17 Ballots
On any question proposed for consideration at a meeting of shareholders,
and whether or not a vote by show of hands has been taken thereon, any
shareholder or proxyholder entitled to vote at the meeting may require or 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 the ballot. If a ballot is taken each person
present shall be entitled, in respect of the shares which he is entitled to vote
at the meeting upon the question, to that number of votes provided by the Act or
the articles, and the result of the ballot so taken shall be the decision of the
shareholders upon the said question.
9.18 Adjournment
The chairman at the meeting of shareholders may with the consent of the
meeting and subject to such conditions as the meeting may decide, or where
otherwise permitted under the provisions of the Act, adjourn the meeting from
time to time and from place to place. If a meeting of shareholders is adjourned
for less than 30 days, it shall not be necessary to give notice of the adjourned
meeting, other than by announcement at the earliest meeting that is adjourned.
If a meeting of shareholders is adjourned by one or more adjournments for an
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aggregate of 30 days or more, notice of the adjourned meeting shall be given as
for an original meeting.
9.19 Resolution in Writing
A resolution in writing signed by all the shareholders entitled to vote on
that resolution at a meeting of shareholders is as valid as if it had been
passed at a meeting of the shareholders unless a written statement with respect
to the subject matter of the resolution is submitted by a director or the
auditor in accordance with the Act.
9.20 Only One Shareholder
Where the Corporation has only one shareholder or only one holder of any
class or series of shares, all business which the Corporation may transact at an
annual or special meeting of shareholders shall be transacted in the manner
provided for in paragraph 9.19.
SECTION TEN
INFORMATION AVAILABLE TO SHAREHOLDERS
10.01 Information Available to Shareholders
Except as provided by the Act, no shareholder shall be entitled to
discovery of any information respecting any details or conduct of the
Corporation's business which in the opinion of the directors it would be
inexpedient to the interests of the Corporation to communicate to the public.
10.02 Directors' Determination
The directors may from time to time, subject to the rights conferred by the
Act, determine whether and to what extent and at what time and place and under
what conditions or regulations the documents, books and registers and accounting
records of the Corporation or any of them shall be open to the inspection of
shareholders and no shareholder shall have any right to inspect any document or
book or register or accounting record of the Corporation except as conferred by
statute or authorized by the board or by a resolution of the shareholders in
general meeting.
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SECTION ELEVEN
DIVISIONS AND DEPARTMENTS
11.01 Creation and Consolidation of Divisions
The board may cause the business and operations of the Corporation or any
part thereof to be divided or to be segregated into one or more divisions upon
such basis, including without limitation, character or type of operation,
geographical territory, product manufactured or service rendered, as the board
may consider appropriate in each case. The board may also cause the business and
operations of any such division to be further divided into sub-units and the
business and operations or any such divisions or sub-units to be consolidated
upon such basis as the board may consider appropriate in each case.
11.02 Name of Division
Any division or its sub-units may be designated by such name as the board
may from time to time determine and may transact business under such name,
provided that the Corporation shall set out its name in legible characters in
all contracts, invoices, negotiable instruments and orders for goods or services
issued or made by or on behalf of the Corporation.
11.03 Officers of Division
From time to time the board or, if authorized by the board, the Chief
Executive Officer, may appoint one or more officers for any division, prescribe
their powers and duties and settle their terms of employment and remuneration.
The board or, if authorized by the board, the Chief Executive Officer, may
remove at its or his pleasure any officer so appointed, without prejudice to
such officer's rights under any employment contract. Officers of divisions or
their sub-units shall not, as such, be officers of the Corporation.
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SECTION TWELVE
NOTICES
12.01 Method of Giving Notices
Any notice (which term includes any communication or document) to be given
(which term includes sent, delivered or served) pursuant to the Act, the
regulations thereunder, the articles, the by-laws or otherwise to a shareholder,
director, officer, auditor or member of a committee of the board shall be
sufficiently given if delivered personally to the person to whom it is to be
given or if delivered to his recorded address or if mailed to him at his
recorded address by prepaid mail or if sent to him at his recorded address by
any means of prepaid transmitted or recorded communication. A notice so
delivered shall be deemed to have been given when it is delivered personally or
to the recorded address as aforesaid; a notice so mailed shall be deemed to have
been given when deposited in a post office or public letter box and shall be
deemed to have been received on the fifth day after so depositing; and a notice
so sent by any means of transmitted or recorded communication shall be deemed to
have been given when dispatched or delivered to the appropriate communication
company or agency or its representative for dispatch. The Secretary may change
or cause to be changed the recorded address of any shareholder, director,
officer, auditor or member of a committee of the board in accordance with any
information believed by him to be reliable.
12.02 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.
12.03 Proof of Service
A certificate of the Chairman of the Board (if any), the President, a
Vice-President, the Secretary of the Treasurer or of any other 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 of the Corporation as to the facts in relation to the mailing or delivery
of any notice or other document to any shareholder, director, officer or auditor
or publication of any
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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.
12.04 Notice to Joint Shareholders
All notices with respect to shares registered in more than one name shall,
if more than one address appears on the records of the Corporation in respect of
such joint holdings, be given to all of such joint shareholders at the first
address so appearing, and notice so given shall be sufficient notice to the
holders of such shares.
12.05 Computation of Time
In computing the date when notice must be given under any provision
requiring a specified number of days notice of any meeting or other event both
the date of giving the notice and the date of the meeting or other event shall
be excluded.
12.06 Undelivered Notices
If any notice given to a shareholder pursuant to paragraph 12.01 is
returned on three consecutive occasions because he cannot be found, the
Corporation shall not be required to give any further notices to such
shareholder until he informs the Corporation in writing of his new address.
12.07 Omissions and Errors
The accidental omission to give any notice to any shareholder, director,
officer, auditor or member of a committee of the board or the non-receipt of any
notice by any such person or any error in any notice not affecting the substance
thereof shall not invalidate any action taken at any meeting held pursuant to
such notice or otherwise found thereon.
12.08 Deceased Shareholders
Any notice or other document delivered or sent by post 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 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
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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 with him in such shares.
12.09 Persons Entitled by Death or Operation of Law
Every person who, by operation of law, transfer, death of a shareholder or
any other means whatsoever, shall become entitled to any share, shall be bound
by every notice in respect of such share which shall have been duly given to the
shareholder from whom he derives his title to such share prior to his name and
address being entered on the securities register (whether such notice was given
before or after the happening of the event upon which he became so entitled) and
prior to his furnishing to the Corporation the proof of authority or evidence of
his entitlement prescribed by the Act.
12.10 Waiver of Notice
Any shareholder (or his duly appointed proxyholder), director, officer,
auditor or member of a committee of the board may at any time waive any notice,
or waive or abridge the time for any notice, required to be given to him under
any provision of the Act, the regulations thereunder, the articles, the by-laws
or otherwise and such waiver or abridgement, whether given before or after the
meeting or other event of which notice is required to be given shall cure any
default in the giving or in the time of such notice, as the case may be. Any
such waiver or abridgement shall be in writing except a waiver of notice of a
meeting of shareholders or of the board or of a committee of the board which may
be given in any manner.
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SECTION THIRTEEN
EFFECTIVE DATE
13.01 Effective Date - This by-law shall come into force when enacted by the
shareholders, subject to the provisions of the Act.
SECTION FOURTEEN
REPEAL
14.01 Repeal - Upon this by-law coming into force, By-law Number 1 of the
Corporation is hereby repealed provided that such repeal shall not affect the
previous operation of such by-laws so repealed or affect the validity of any act
done or right, privilege, obligation or liability acquired or incurred under the
validity of any contract or agreement made pursuant to any such by-law prior to
its repeal.
