Schedule A
Corporate Governance Disclosure Required by National Instrument 58-101
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Corporate Governance Guideline
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Comments
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1. Board of Directors
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a)
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Disclose the identity of the directors who are independent
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The independent directors are:
Richard D. McGraw
John R. Gossling
Anthony F. Griffiths
Georges L.
Hébert
David S. McClimon
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b)
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Disclose the identity of directors who are not independent, and describe the basis for that determination
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William S. Deluce is not considered independent as he is the current Interim President and Chief Executive Officer of the Company.
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c)
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Disclose whether or not a majority of the directors are independent
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Five of the Companys six directors are independent as defined by National Instrument 58-101.
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d)
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If a director is presently a director of any other issuer that is a reporting issuer (or the equivalent) in a jurisdiction, identify both the director and the other
issuer
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All directorships with other public entities for each director are disclosed in the Management Information Circular, pages 7, 8 and 9.
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e)
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Disclose whether or not the independent directors hold regularly scheduled meetings at which non-independent directors and members of management are not in attendance.
If the independent directors hold such meetings, disclose the number of meetings held since the beginning of the issuers most recently completed financial year.
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The independent directors hold in-camera sessions at all Board and committee meetings.
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f)
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Disclose whether or not the chair of the board is an independent director. If the board has a chair or lead director who is an independent director, disclose the
identity of the independent chair or lead director, and describe his or her role and responsibilities
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The current Board Chairman, Richard D. McGraw, is an independent director as defined by National Instrument 58-101. Mr. McGraws roles and responsibilities are disclosed in the
Management Information Circular, page 27.
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g)
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Disclose the attendance record of each director for all board meetings held since the beginning of the issuers most recently completed financial year
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Attendance is disclosed in the Management Information Circular, page 28.
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2. Board Mandate
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a)
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Disclose the text of the boards written mandate
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The Boards mandate is disclosed in the Management Information Circular, page 26.
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3. Position Descriptions
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a)
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Disclose whether or not the board has developed written position descriptions for the chair and the chair of each board committee
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The Board has developed written position descriptions for the Chair and the Chairs of all Board committees.
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b)
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Disclose whether or not the board and CEO have developed a written position description of the CEO
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The Board and the CEO have developed a written position description for the CEO.
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4. Orientation and Continuing Education
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a)
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Briefly describe what measures the board takes to orient new directors regarding
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i) the role of the board, its committees and its directors
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The Boards Statement of Corporate Governance Practices outlines the Companys expectations with respect to director and committee roles and responsibilities. Each
committee has a charter which further describes the specific roles and responsibilities.
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ii) the nature and operation of the issuers business
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Arrangements are made for specific briefing sessions from appropriate senior personnel. The Company organizes Board meetings at Company facilities to facilitate site visits.
Directors are provided minutes and materials presented at previous meetings.
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b)
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Briefly describe what measures the board takes to provide continuing education for its directors
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Directors may enrol in professional development courses at the Companys expense, subject to Board approval.
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A-1
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5. Ethical Business Conduct
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a)
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Disclose whether or not the board has adopted a written code for the directors, officers and employees. If the board has adopted a written code:
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The Company has a Code of Conduct that is applicable to all directors, senior management and employees.
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i) Disclose how a person or company may obtain a copy of the code
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The Code of Conduct is available free of charge on our web-site at
www.vitran.com
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ii) Describe how the board monitors compliance with its code
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All new employees and directors are required to read and sign the Code of Conduct as part of the orientation process.
Senior management and the Board are required to sign the Code of Conduct annually.
All signed Code of Conducts are presented to the Board annually for review.
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iii) Provide a cross-reference to any material change report filed since the beginning of the issuers most recently completed financial year that pertains to any conduct of a
director or executive officer that constitutes a departure from the code
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None.
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b)
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Describe any steps the board takes to ensure directors exercise independent judgement in considering transactions and agreements in respect of which a director or
executive officer has a material interest
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The Code of Conduct outlines the conflict of interest guidelines. Any director must disclose a conflict of interest immediately. If a director has a conflict of interest in a
specific topic, that director is not permitted to be present when the matter is discussed or voted upon.
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c)
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Describe any other steps the board takes to encourage and promote a culture of ethical business conduct
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The Board encourages senior management to publish an annual company newsletter and supports the Companys whistleblower hotline.
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6. Nomination of Directors
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a)
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Describe the process by which the board identifies new candidates for board nomination
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Step 1: Complete Current Board Analysis and Observation
Step 2: Determine Corporate Strategic and Business Objectives
Step 3: Develop Board Composition
Target
Step 4: Develop New Director Criteria
Step 5: Identification of New Director Candidates
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b)
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Disclose whether or not the board has a nominating committee composed entirely of independent directors
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The Board does have a Nominating and Governance Committee which is comprised entirely of independent directors.
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c)
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If the board has a nominating committee, describe the responsibilities, powers and operation of the nominating committee
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The responsibilities of the Nominating and Governance Committee are included in the Committees Charter which can be found on our web-site at
www.vitran.com
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7. Compensation
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a)
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Describe the process by which the board determines the compensation for the issuers directors and officers
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This information is disclosed in the Management Information Circular under the Compensation Discussion and Analysis and Compensation of
Directors.
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b)
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Disclose whether or not the board has a compensation committee composed entirely of independent directors
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The Board does have a Compensation Committee which is comprised entirely of independent directors. The following individuals served as
members of the Compensation Committee during the financial year which ended on December 31, 2012:
William S. Deluce;
Anthony F. Griffiths; and
Richard D.
McGraw.
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c)
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If the board has a compensation committee, describe the responsibilities, powers and operation of the compensation committee
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The responsibilities of the Compensation Committee are included in the Committees Charter which can be found on our web-site at
www.vitran.com
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A-2
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d)
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If a compensation consultant or advisor has, at any time since the beginning of the issuers most recently completed financial year, been retained to assist in
determining compensation for any of the issuers directors and officers, disclose the identity of the consultant or advisor and briefly summarize the mandate for which they have been retained
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Hugessen Consulting Inc. was retained in 2012 to review director compensation, including mandatory share ownership requirements, in 2013.
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8. Other Board Committees
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a)
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If the board has standing committees other than audit, compensation, and nominating committees, identify the committees and describe their function
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None.
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9. Assessments
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a)
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Disclose whether or not the board, its committees and individual directors are regularly assessed with respect to their effectiveness and contribution. If assessments
are regularly conducted, describe the process used for the assessments. If assessments are not regularly conducted, describe how the board satisfies itself that the board, its committees, and its individual directors are performing
effectively
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A Board performance review is conducted annually and the findings are reported to the Board. A questionnaire is distributed and completed by all directors. The Chairman of the Board
compiles the results and if required, discusses concerns with each individual director.
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A-3
Schedule B
Amended and Restated Stock Option Plan
VITRAN CORPORATION INC.
AMENDED AND RESTATED STOCK OPTION PLAN
ARTICLE 1 DEFINITIONS
In addition to the other terms defined
herein, when used in this Plan, unless the context otherwise requires:
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(a)
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Act
means the
Securities Act
(Ontario) as the same may be amended, re-enacted or replaced from time to time.
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(b)
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Company
means Vitran Corporation Inc.
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(c)
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Compensation Committee
means the compensation committee of the Company as same may be constituted from time to time and any committee in succession
to the compensation committee.
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(d)
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Board of Directors
means the board of directors of the Company for the time being and reference without more to action by the Board of Directors
shall mean action by the directors as a board of directors.
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(e)
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Holder
means a person to whom an Option or Options have been or are granted under the Plan.
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(f)
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Insider
means such persons defined as an insider for purposes of Section 613 of the Toronto Stock Exchange Company Manual, as such provision may
be amended from time to time.
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(g)
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Option
or
Options
means an option or options granted or issued pursuant to the Plan.
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(h)
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Outstanding Issue
means, at the relevant time, the number of outstanding Shares from time to time.
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(i)
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Plan
means the Vitran Corporation Inc. Employee Stock Option Plan adopted by the Board of Directors at its meeting held on March 14,
1995, as from time to time amended, restated or supplemented as herein provided.
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(j)
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Share Compensation Arrangements
means any Option under the Plan but also include any other stock option, stock option plan, employee stock purchase
plan or any other compensation or incentive mechanism involving the issuance or potential issuance of Shares to a Service Provider.
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(k)
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Shares
means common shares of the Company as presently constituted.
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(l)
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Service Provider
means a person eligible to receive Options under Section 2.3 hereof.
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(m)
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Subsidiary
means any entity more than 50% of whose securities having general voting power is owned by the Company or by a Subsidiary of the Company.
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B-1
ARTICLE 2 OPTIONS
Section 2.1 Shares Available
The Board of Directors may at any time and from time to time, in accordance with the Plan, grant Options on such number of treasury Shares, which is not in excess of 2,550,000 Shares (subject to
adjustment pursuant to Article 4 hereof) or such greater number as will have been duly approved by the Board of Directors and, if required, approved or ratified by the shareholders of the Company.
Section 2.2 Time of Issuance of Options
The Board of Directors, on the recommendation of the Compensation Committee, may from time to time grant Options pursuant to the Plan. Subject to the provisions of Section 2.4 hereof, nothing herein
will be construed to prohibit the granting of Options at different times to the same person. All Options previously issued by the Company to its Service Providers that are outstanding as at the date of the amendment and restatement of this Plan will
be deemed to be issued under this Plan and governed by the terms and conditions hereof.
Section 2.3 Persons Eligible
Persons eligible to receive Options will be such bona fide officers, directors and employees of the Company or its Subsidiaries or other
persons or entities engaged to provide ongoing management or consulting services to the Company or its Subsidiaries, as demonstrate the potential of becoming key personnel of, or performing valuable services for the Company and its Subsidiaries, or
as inducement of employment, as the Board of Directors, on the recommendation of the Compensation Committee, may determine. Notwithstanding anything to the contrary contained in the Plan, no Options may be granted to Insiders if such Options,
together with any other outstanding Share Compensation Arrangements, could result in:
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(a)
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the number of Shares issuable to Insiders at any time pursuant to Share Compensation Arrangements exceeding 10% of the Outstanding Issue; or
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(b)
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the issuance to Insiders pursuant to Share Compensation Arrangements, within any one-year period, of a number of Shares exceeding 10% of the Outstanding Issue.
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Section 2.4 Number of Shares to be Optioned
The number of Shares to be optioned to any person will be determined by the Board of Directors, on the recommendation of the Compensation
Committee.
Section 2.5 Form of Options
A certificate of option (
Option Certificate
), in the form or substantially in the form set out in the schedule hereto, signed by the President or any Vice-President, or the Secretary of
the Company or any other officer of the Company appointed by the Board of Directors, will be issued to each person to whom an Option is granted.
Section 2.6 Assignability of Options
Options and all rights
thereunder will be non-assignable and non-transferable by the Holder, provided however that the representatives of a deceased Holder may exercise the rights enjoyed under any such Option at the time of the death of such Holder subject, however, to
the terms, conditions and limitations herein provided.
Section 2.7 Option Price and Term
The price at which Shares may be purchased under any Option granted pursuant to the Plan (the
Option Price
) will be the
closing price of the Shares on the Toronto Stock Exchange on the last trading day prior to the grant
B-2
of such Option, and if there is no such closing price, the price at which Shares may be purchased under any Option granted pursuant to the Plan will be the simple average of the closing bid and
ask prices of the Shares on the Toronto Stock Exchange on the last trading day prior to the grant of such Option. The term during which Shares may be purchased under any Option granted pursuant to the Plan will be determined by the Board of
Directors but will not exceed 10 years (the
Normal Expiry Date
).
Section 2.8 Vesting of Options
Vesting of Options and the waiver in whole or in part and at any time and from time to time of the vesting requirements contained in any
existing Option Certificate is at the discretion of the Board of Directors, and may generally be subject to:
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(a)
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the Service Provider remaining employed by or continuing to provide services to the Company or any of its Subsidiaries as well as, at the discretion of the Board of
Directors, achieving certain milestones which may be defined by the Board of Directors from time to time or receiving a satisfactory performance review by the Company or any of its Subsidiaries during the vesting period;
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(b)
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remaining as a director of the Company or a director of any of its Subsidiaries during the vesting period;
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(c)
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the terms and conditions of any employment agreement approved by the Board of Directors; or
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(d)
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the provisions of Section 5.2, Section 5.3 and Section 5.4.
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Section 2.9 Tax Code Compliance
It is intended that Options granted
under the Plan will not constitute a deferral of compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
Code
). In granting an Option, the Board of Directors will use its
reasonable commercial efforts to exercise its authority under the Plan with respect to the terms of such Option in a manner that the Board of Directors determines in good faith will not cause the Option to be subject to Section 409A of the Code
and, should the Option be subject to Section 409A of the Code, to comply with Section 409A of the Code and thereby avoid the imposition of penalty taxes and interest upon the Holder. For U.S. tax purposes, the Plan is not considered an
Incentive Stock Option plan as defined under the Code.
ARTICLE 3 EXERCISE OF OPTIONS
Section 3.1 When Exercised
The Board of Directors, on recommendation of the Compensation Committee, will fix the term of any Option and the rights of exercise with respect thereto.
Section 3.2 How Exercisable
Options will be exercised by delivery of a duly signed notice in writing to such effect, together with the Option Certificate and the full price of the Shares purchased pursuant to the exercise of the
Option, to the President or any Vice-President, or the Secretary of the Company or any other officer of the Company appointed by the Board of Directors for the purposes of receiving the same.
Section 3.3 Issuance of Shares
Within a reasonable time after
exercise of an Option and payment of the price for the Shares purchased pursuant to such exercise, the Company will cause to be delivered to the person exercising the Option a certificate for the Shares purchased pursuant to the exercise of the
Option and an Option Certificate for a number of Shares
B-3
equivalent to the difference between the number of Shares of the Option Certificate surrendered at the time of the exercise of the Option and the number of Shares with respect to which the Option
was so exercised, or the Company may, at its election and in lieu of issuing a new Option Certificate, endorse on the original Option Certificate a memorandum of the number of Shares in respect of which the Option has been exercised.
Section 3.4 Termination of Options
Subject to Section 3.1 hereof, any Option not exercised within the period fixed for its exercise will terminate and become void and of no effect.
Section 3.5 Lapsed Options
In the event that Options granted under the Plan are surrendered, terminate or expire without being exercised in full, the unpurchased Shares subject thereto may again be used and available for
reservation for the purposes of the Plan.
Section 3.6 Holder Ceasing to be Service Provider
Unless otherwise determined by the Board of Directors or the Compensation Committee, or otherwise provided in an employment agreement
approved by the Board of Directors, no Option may be exercised after the Holder has ceased to be employed by or hold office with the Company or any of its Subsidiaries or has been advised that his or her services are no longer required or that his
or her service contract has expired, except as follows:
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in the case of the death of a Holder, any vested Option held by such Holder at the date of his or her death will be exercisable by such Holders lawful personal
representatives, heirs or executors until the earlier of (i) the date that is six months following the date of death of such Holder or such later date as determined by the Board of Directors and (ii) the Normal Expiry Date of such Option,
and all unvested Options will immediately terminate without right to exercise such unvested Option unless otherwise provided for or contemplated under Section 2.8;
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(b)
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in the case of disability of a Holder to an extent and in a manner as will be determined in each case by the Compensation Committee, any vested Option held by such
Holder at the date of his or her disability will be exercisable by such Holder until the earlier of (i) the date that is six months following the date of disability of such Holder or such later date as determined by the Board of Directors and
(ii) the Normal Expiry Date of such Option, and all unvested Options will immediately terminate without right to exercise such unvested Option unless otherwise provided for or contemplated under Section 2.8;
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(c)
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in the case of the retirement of a Holder, any vested Option held by such Holder at the date of his or her retirement will be exercisable by such Holder until the
earlier of (i) the date that is six months following the date of retirement of such Holder or such later date as determined by the Board of Directors and (ii) the Normal Expiry Date of such Option, and all unvested Options will immediately
terminate without right to exercise such unvested Option unless otherwise provided for or contemplated under Section 2.8;
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(d)
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in the case of the resignation of a Holder from the employment of or service to the Company or any of its Subsidiaries in any circumstance other than those described in
subsection 3.6(c), any vested Option held by such Holder immediately prior to his or her resignation will be exercisable by such Holder until the earlier of (i) the date that is seven business days following the date on which the Holder ceases
to be a Service Provider or such later date as determined by the Board of Directors and (ii) the Normal Expiry Date of such Option, and all unvested Options will immediately terminate without right to exercise such unvested Option unless
otherwise provided for or contemplated under Section 2.8; and
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(e)
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in the case of the termination of a Holder from the employment of or service to the Company or any of its Subsidiaries with or without cause, any vested Options held by
such Holder immediately prior to his or her termination of employment or service will be exercisable by such Holder until the earlier of (i) the date that is seven business days following the date on which the Holder ceases to be a Service
Provider or such later date as determined by the Board of Directors and (ii) the Normal Expiry Date of such Option, and all unvested Options will immediately terminate without right to exercise such unvested Option unless otherwise provided for
or contemplated under Section 2.8.
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Notwithstanding any of the foregoing, no Option may be exercised after
the Normal Expiry Date of such Option. For greater certainty, for the purposes of subsections 3.6(d) and 3.6(e), the date on which a Holder ceases to be a Service Provider will be the Holders last day of active employment or service, as the
case may be, and will not include any period of statutory, reasonable or contractual notice or any period of deemed employment or salary continuation.
Section 3.7 Expiry During Blackout Periods
Notwithstanding the
provisions of Section 2.7 and Section 3.6 hereof, no Option will terminate and cease to be exercisable, whether as a result of the occurrence of the Normal Expiry Date or as a result of the cessation of employment or service of a Holder
with the Company or a Subsidiary, prior to the tenth business day following notice of the cessation of any restricted trading period imposed by the Company by which officers and employees of the Company are prohibited from trading in securities of
the Company (a
Trading Blackout
) then in effect and if a Trading Blackout is not then in effect, prior to the tenth business day following notice of the cessation of the most recent Trading Blackout.
ARTICLE 4 ADJUSTMENTS
Section 4.1 Adjustment of Optioned Shares
If prior to the complete
exercise of any Option there will be declared and paid a stock dividend upon the Shares or if such Shares will be consolidated or subdivided or converted, exchanged or reclassified, or in any way substituted for, then the Option, to the extent that
it has not been exercised, will entitle the Holder upon the future exercise of the Option to such number and kind of securities or other property, subject to the terms of the Option, to which the Holder would have been entitled had the Holder
actually owned the Shares subject to the unexercised portion of the Option at the time of the occurrence of such stock dividend, consolidation, conversion, subdivision, exchange, reclassification or substitution; and the aggregate purchase price
upon the future exercise of the Option will be the same as if originally optioned Shares were being purchased hereunder. If any such event should occur, the number of Shares with respect to which Options remain to be issued or with respect to which
Options may be reissued, will be similarly adjusted.
Section 4.2 Amalgamation or Merger
If the Company amalgamates, consolidates or combines with or merges with or into another body corporate, whether by way of amalgamation,
arrangement, consolidation, combination, merger or otherwise (the right to do so being hereby expressly reserved), any Share receivable on the exercise of an Option will be converted into the securities, property or cash which the Holder would have
received upon such amalgamation, arrangement, consolidation, combination or merger if the Holder had exercised his or her Option immediately prior to the effective date of such amalgamation, arrangement, consolidation, combination or merger and the
Option Price will be adjusted as may be deemed necessary or equitable by the Board of Directors and such adjustment will be binding for all purposes of the Plan.
B-5
Section 4.3 Redesignation of Shares
In the event of a change in the Companys currently authorized Shares, which is limited to a change in the designation thereof, the
shares resulting from any such change will be deemed to be Shares within the meaning of the Plan.
Section 4.4 Other Adjustments
In the event of any other change affecting the Shares, such adjustment, if any, will be made as may be deemed necessary or
equitable by the Board of Directors to properly reflect such event and such adjustment will be binding for all purposes of the Plan.
ARTICLE 5 CHANGE IN CONTROL
Section 5.1 Change in Control
For the purpose of this Article 5, a
Change in Control
of the Company will be deemed to have
occurred each time that:
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(a)
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any person, or group of persons acting jointly or in concert (as defined in the Act), whether directly or indirectly, acquires ownership of or control or direction over
voting securities of the Company which, together with all other voting securities of the Company held by such person or persons, carry more than fifty percent (50%) of the votes attached to all voting securities of the Company;
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(b)
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an amalgamation, arrangement or other form of business combination of the Company with another corporation or corporations is completed with the result that any person
or group of persons acting jointly or in concert (as defined in the Act) owns or exercises control or direction over voting securities of the resulting entity carrying more than fifty percent (50%) of the votes attached to all voting securities
of the resulting entity;
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(c)
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the Company sells or otherwise disposes of all or substantially all of its assets; or
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(d)
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the Board of Directors of the Company, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by directors, determines that for
purposes of the Plan, a Change in Control of the Company has occurred.
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Section 5.2 Take-over Bid
If, at any time when Options granted under the Plan remain unexercised, a take-over bid made by means of a formal take-over bid circular
is made for such number of Shares that if accepted by sufficient offerees and completed by the offeror (as defined in the Act) would result in a Change in Control, then the Board of Directors will use its reasonable commercial efforts to bring such
offer to the attention of the Holders as soon as practicable and the Board of Directors may, in a fair and equitable manner, at its discretion, require the acceleration of the time for the exercise of the Options outstanding under the Plan and of
the time for the fulfillment of any conditions or restrictions on such exercise (including without limitation, vesting requirements). All determinations of the Board of Directors under this Section 5.2 will be binding for all purposes of the
Plan.
Section 5.3 Business Combination
Notwithstanding any other provision in the Plan, if because of a proposed merger, amalgamation or other corporate arrangement or reorganization, the exchange or replacement of Shares in the Company with
securities of another corporation is imminent (
Business Combination
), the Board of Directors may, in a fair and equitable manner, determine the manner in which all outstanding and unexercised Options under the Plan will be treated
including, for example but without limitation, requiring the acceleration of the time for the exercise of such Options
B-6
by the Holders and of the time for the fulfillment of any conditions or restrictions on such exercise (including without limitation, vesting requirements). All determinations of the Board of
Directors under this Section 5.3 will be binding for all purposes of the Plan.
Section 5.4 Conditional Vesting and Exercise
In order to permit Holders to participate in a proposed take-over bid made by means of a formal take-over bid circular or
a proposed Business Combination that could result in a Change in Control, the Board of Directors may make appropriate provisions for the exercise of Options (whether vested or not) conditional upon the Shares issued on exercise of such Options being
taken up and paid for under the take-over bid or the completion of the Business Combination, as applicable.
ARTICLE 6
FRACTIONAL SHARES
No fractional Shares will be issued upon the exercise of an Option nor will any scrip
certificates in lieu thereof be issuable at any time. Accordingly, if as a result of any adjustment pursuant to Article 4 a Holder would become entitled to a fractional Share, he or she will have the right to purchase only the next lower whole
number of Shares and no payment or other adjustment will be made with respect to the fractional interest so disregarded.
ARTICLE 7 LIMITATIONS
The Companys obligations to issue Shares in accordance with the terms of the Plan is subject to compliance with the laws, rules and regulations of all public agencies and authorities applicable to
the issuance and distribution of such Shares and to the listing of such Shares on any stock exchange on which the Shares may be listed. The Holder agrees to comply with all such laws, rules and regulations and agrees to furnish to the Company all
information and such undertakings as may be required to permit compliance with such laws, rules and regulations.
ARTICLE 8 AMENDMENT AND INTERPRETATION
Section 8.1 Amendment and Discontinuance
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(a)
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The Board of Directors may:
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i.
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discontinue the Plan at any time except that such discontinuance may not alter or impair any Option previously granted to a Holder under the Plan; and
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ii.
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subject to any necessary approval of the Toronto Stock Exchange or any other stock exchange on which the Shares may then be listed and subject to subsection 8.1(b)
hereof, from time to time amend the Plan in its absolute discretion without the approval of the Companys shareholders.
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(b)
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The Companys shareholders will approve any amendment to the Plan or any Option which:
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i.
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reduces the exercise price of an Option;
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ii.
|
extends the period available to exercise an Option beyond the Normal Expiry Date, other than as provided in Section 3.7 hereof;
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iii.
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increases the levels of Insider participation under the Plan as set forth in Section 2.3 hereof;
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iv.
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increases the number of Shares reserved for issuance under the Plan (other than pursuant to the provisions of Article 4 hereof);
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B-7
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v.
|
amends Section 2.6 hereof; or
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vi.
|
amends subsection 8.1(b) hereof.
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(c)
|
Subject to subsection 8.1(b) hereof, the Board of Directors may from time to time amend the terms and conditions of any Option (and the terms of the Plan solely in
respect thereof) which has been theretofore granted, provided that no amendment which could adversely affect a Holder will be made without the consent of the affected Holder.
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ARTICLE 9 WITHHOLDING OBLIGATIONS
Notwithstanding anything to the contrary in the Plan, to the extent that the exercise of an Option gives rise to any tax or other statutory withholding obligation (including, without limitation, income
and payroll withholding taxes imposed by any jurisdiction), the Board of Directors may implement appropriate procedures to ensure that such withholding obligations are met. These procedures may include, without limitation, increased withholding from
a Holders regular compensation, cash payments by a Holder, or the sale of a portion of the Shares acquired pursuant to the exercise of an Option, which sale may be required and initiated by the Board of Directors. Any such procedure, including
offering choices among procedures, will be applied consistently with respect to all similarly situated Holders except to the extent any procedure may not be permitted under the laws of the applicable jurisdiction.
B-8
Adopted effective March 18, 2013.
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VITRAN CORPORATION INC.
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By:
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Richard E. Gaetz
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Name:
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Richard E. Gaetz
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Title:
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Chief Executive Officer
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By:
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Fayaz D. Suleman
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Name:
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Fayaz D. Suleman
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Title:
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Chief Financial Officer and Secretary
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B-9
Schedule C
By-law No. 8
BY-LAW NO. 8
VITRAN CORPORATION INC.
INDEX
C-1
C-2
C-3
BY-LAW NO. 8
A by-law relating generally to the conduct
of the business and affairs of
VITRAN CORPORATION INC.
BE IT ENACTED
as a by-law of the Corporation as follows:
SECTION 1
INTERPRETATION
In the by-laws of the
Corporation, unless the context otherwise requires:
Act
means the
Business Corporations Act
(R.S.O. 1990, c.B.16)
and the regulations thereto, and any statute that may be substituted therefor, as from time to time amended;
articles
means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of arrangement, articles of continuance, articles of dissolution, articles of reorganization and articles of revival, letters patent,
supplementary letters patent and a special Act of the Corporation;
board
means the board of directors of the Corporation;
business day
means a day that is a not a Saturday, Sunday or any other day that is a holiday as defined in the
Interpretation Act
(Ontario);
by-laws
means this by-law and all other by-laws of the Corporation from time to time
in force and effect;
Corporation
means the corporation incorporated under the Act and named Vitran Corporation Inc.;
Electronic Commerce Act
means the
Electronic Commerce Act
, 2000 (S.O. 2000, c.17) as amended from time to time;
meeting of shareholders
means any meeting of shareholders, whether annual or special;
offering corporation
means a corporation that is offering its securities to the public within the meaning of the Act and that is not
the subject of an order of the Ontario Securities Commission deeming it to have ceased to be offering its securities to the public;
recorded address
means, in the case of a shareholder, the shareholders 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 are more than one; and in the case of a director, officer, auditor or member of a committee
of the board, the latest address of such person as recorded in the records of the Corporation;
resident Canadian
has the
meaning ascribed thereto in the Act;
Securities Transfer Act
means the
Securities Transfer Act
, 2006 (S.O. 2006,
c.8) as amended from time to time;
signing officer
means, in relation to any instrument, any person authorized to sign the
same on behalf of the Corporation by section 2.4 or by a resolution passed pursuant thereto; and
special meeting of
shareholders
includes a special meeting of all shareholders entitled to vote at an annual meeting of shareholders and a meeting of any class or classes of shareholders entitled to vote on the question at issue.
1.2
|
Additional Definitions
|
Save as
aforesaid, words and expressions defined in the Act have the same meanings when used herein.
C-4
Words importing the
singular number include the plural and vice versa; words importing gender include the masculine, feminine and neuter genders; and words importing persons include individuals, bodies corporate, partnerships, trusts and unincorporated organizations.
SECTION 2
BUSINESS OF THE CORPORATION
Until changed in
accordance with the Act, the registered office of the Corporation shall be in the City of Toronto in the Province of Ontario and at such location therein as the board may from time to time determine.
The Corporation may have
a corporate seal which shall be adopted and may be changed by resolution of the board.
The
financial year of the Corporation shall end on such date in each year as determined from time to time by resolution of the board and initially, such financial year shall end on the 31
st
day of December.
2.4
|
Execution of Instruments
|
Deeds,
transfers, assignments, bills of sale, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any two directors or officers or any director together with any officer. In addition, the board may from
time to time direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal to any instrument requiring the same.
The banking
business of the Corporation 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 prescribe or authorize.
2.6
|
Voting Rights in Other Bodies Corporate
|
The signing officers of the Corporation may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right
to exercise the voting rights attaching to any securities held by the Corporation. Such instruments, certificates or other evidence shall be in favour of such person or persons as may be determined by the officers executing such proxies or arranging
for the issuance of voting certificates or such other evidence of the right to exercise such voting rights. In addition, the board may from time to time direct the manner in which and the person or persons by whom any particular voting rights or
class of voting rights may or shall be exercised.
2.7
|
Withholding Information from Shareholders
|
Subject to the provisions of the Act, no shareholder shall be entitled to discovery of any information respecting any details or conduct of the
Corporations business which, in the reasonable opinion of the board, could be inexpedient in the interests of the shareholders or the Corporation to communicate to the public. The board may from time to time determine whether and to what
extent and at what time and place and under what conditions or regulations the accounts, records and documents 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
account, record or document of the Corporation except as conferred by the Act or authorized by the board.
C-5
SECTION 3
BORROWING AND SECURITY
Without limiting the
borrowing powers of the Corporation as set forth in the Act, the board may, without authorization of the shareholders, from time to time:
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(a)
|
borrow money upon the credit of the Corporation;
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(b)
|
issue, reissue, sell, pledge or hypothecate bonds, debentures, notes or other evidence of indebtedness or guarantee of the Corporation, whether secured or unsecured;
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(c)
|
subject to the Act, give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and
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(d)
|
mortgage, hypothecate, pledge or otherwise create a security interest in or charge upon all or any real or personal, movable or immovable property of the Corporation,
owned or subsequently acquired, including book debts, rights, powers, franchises and undertakings by way of mortgage, hypothec, pledge or otherwise, to secure payment of any such evidence of indebtedness, guarantee or other obligation of the
Corporation, whether present or future.
|
Nothing in this section limits or restricts the borrowing of money by the Corporation
on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.
The board may from time to
time by resolution delegate to one or more directors, a committee of directors or one or more officers of the Corporation all or any of the powers conferred on the board by section 3.1 or by the Act to such extent and in such manner as the
board shall determine at the time of each such delegation.
SECTION 4
DIRECTORS
4.1
|
Number of Directors and Quorum
|
Until
changed in accordance with the Act, the board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the articles. Subject to the Act and to section 4.8 hereof, the quorum for the
transaction of business at any meeting of the board shall consist of a majority of such number of directors as determined from time to time according to the Act.
No person shall be
qualified for election as a director if such person is less than 18 years of age; if such person has been found under the
Substitute Decisions Act
, 1992 or under the
Mental Health Act
to be incapable of managing property or who
has been found to be incapable by a court in Canada or elsewhere; if such person is not an individual; or if such person has the status of a bankrupt. A director need not be a shareholder. At least 25 per cent of the directors shall be resident
Canadians but where the Corporation has less than four directors, at least one shall be a resident Canadian. For so long as the Corporation is an offering corporation, the minimum number of directors shall not be less than three and at least
one-third of the directors shall not be officers or employees of the Corporation or any of its affiliates.
Directors shall be
elected yearly to hold office until the close of the next annual meeting of shareholders. Where directors fail to be elected at any such meeting of shareholders, then notwithstanding the preceding sentence, the incumbent directors shall continue in
office until their successors are elected. The number of directors to be elected at any such meeting shall be the number of directors as shall be determined from time to time by special resolution or, if a special resolution empowers the directors
to determine the number, by resolution of directors. The election shall be by resolution.
C-6
Subject to the
provisions of the Act, the shareholders may by ordinary resolution passed at a meeting of shareholders remove any director or directors from office and the vacancy created by such removal may be filled at the same meeting at which a director was
removed, failing which it may be filled by a quorum of directors.
A person ceases to
hold the office of director of the Corporation when such person dies; subject to the Act, such person resigns; such person is removed from office by the shareholders; or such person ceases to be qualified for election as a director. A resignation of
a director becomes effective at the time a written resignation is received by the Corporation or at the time specified in the resignation, whichever is later.
4.6
|
Vacancies; Appointment of Additional Directors
|
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 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 there has been a failure to elect the number of directors required by the articles or by the Act, the board shall forthwith call a
special meeting of shareholders to fill the vacancy. If the board fails to call such meeting or if there are no directors then in office, any shareholder may call the special meeting of shareholders. Any director appointed or elected to fill such
vacancy holds office for the unexpired term of such directors predecessor. Where the board has been empowered to fix the number of directors within the minimum and maximum number of directors as specified in the articles, the board may appoint
one or more additional directors who shall hold office until the close of the next annual meeting but the total number of additional directors so appointed may not exceed one-third of the number of directors elected at the previous annual meeting of
shareholders of the Corporation.
The board shall
manage or supervise the management of the business and affairs of the Corporation. Subject to section 4.8, the powers of the board may be exercised by resolution passed 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 remains in office. A resolution in
writing, signed by all the directors entitled to vote on that resolution at a meeting of directors or a committee of directors, is as valid as if it had been passed at a meeting of directors or a committee of directors.
4.8
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Meetings by Telephone, Electronic or Other Communication Facility
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If all the directors present at or participating in the meeting consent, a meeting of the board or of a committee of the board may be held 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.
Meetings of the board
may be held at any place within or outside Ontario and it shall not be necessary that, in any financial year of the Corporation, a majority of the meetings of the board be held at a place within Canada.
Meetings of the
board shall be held from time to time at such time and at such place as the chair of the board, the chief executive officer, the president, or any two directors may determine.
C-7
Notice of the time and
place of each meeting of the board shall be given in the manner provided in section 12.1 to each director not less than 48 hours before the time of the meeting. 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. A director may in any manner and at any time waive a notice of a meeting of the board. Attendance of a director at a meeting of
directors is a waiver of notice of the meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
4.12
|
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 shareholders at which such board is elected.
Notice of an adjourned
meeting of the board is not required to be given if the time and place of the adjourned meeting is announced at the original meeting.
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.
The chair of any meeting of the
board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chair of the board, vice-chair of the board, lead director, chief executive officer, president, or a
vice-president who is a director. If no such officer is present, the directors present shall choose one of their number to be chair.
At all meetings of the
board every question shall be decided by a majority of the votes cast on the question.
4.17
|
Conflict of Interest
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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 the nature
and extent of the individuals 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 the shareholders for approval even if such
contract is one that in the ordinary course of the Corporations business would not require approval by the board or the shareholders, and a director interested in a contract so referred to the board shall not attend any part of a meeting of
directors during which the contract or transaction is discussed and shall not vote on any resolution to approve the same except as provided by the Act. If no quorum exists for the purpose of voting on a resolution to approve a contract or
transaction only because a director is not permitted to be present at the meeting by reason of the foregoing, the remaining directors shall be deemed to constitute a quorum for the purposes of voting on the resolution. Where all of the directors are
required to disclose their interests pursuant to this section and the Act, the contract or transaction may be approved only by the shareholders.
4.18
|
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 traveling and other expenses properly incurred by them in attending meetings of the board or
any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.
C-8
SECTION 5
COMMITTEES
5.1
|
Committee of Directors
|
The board may
appoint from its members one or more committees of directors, however designated, and delegate to any such committee any of the powers of the board except those which, under the Act, a committee of directors has no authority to exercise.
5.2
|
Transaction of Business
|
The powers of a
committee of directors may be exercised by a meeting at which a quorum of the committee is present or by resolution in writing signed by all the 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.
The board may from time
to time appoint such advisory bodies as it may deem desirable.
Unless otherwise determined by
the board, each committee of directors and advisory body shall have the power to fix its quorum at not less than a majority of its members, to elect its chair and to regulate its procedure.
If the Corporation is an
offering corporation, the board shall elect annually from among its number an audit committee to be composed of not fewer than 3 directors of whom a majority shall not be officers or employees of the Corporation or any of its affiliates. The
audit committee shall have the powers and duties provided in the Act. If the Corporation is a reporting issuer under the securities laws of Ontario or another jurisdiction in Canada, then all the members of the audit committee shall be independent
directors, if so required by applicable securities laws at any time, subject to any exceptions or exemptions provided in such securities laws.
SECTION 6
OFFICERS
The board may from time to
time appoint a chief executive officer, a president, one or more vice-presidents (to which title may be added words indicating seniority or function), a chief financial officer, 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 sections 6.2 and 6.3, an officer may but need not be a director and one person may hold more than one office.
The board may from
time to time also appoint a chair of the board who shall be a director. If appointed, the board may assign to him any of the powers and duties that are by any provisions of this by-law capable of being assigned to the chief executive officer or to
the president; and the individual shall, subject to the provisions of the Act, have such other powers and duties as the board may specify. During the absence or disability of the chair of the board, the individuals duties shall be performed
and the individuals powers exercised by the vice-chair of the board, if any, or if there is no vice-chair of the board, the lead director, if any, or by the chief executive officer, if any, or the president.
C-9
6.3
|
Vice Chair of the Board
|
The board may
from time to time appoint a vice-chair of the board who shall be a director. During the absence or disability of the chair of the board, the chairs duties shall be performed and his powers exercised by the vice-chair of the board. The
vice-chair of the board shall, subject to the provisions of the Act, have such other powers and duties as the board may specify.
6.4
|
Chief Executive Officer
|
The board may
from time to time appoint a chief executive officer. Subject to the authority of the board and any limitations the board may prescribe, the chief executive officer shall have general supervision of the business of the Corporation; and the chief
executive officer shall, subject to the provisions of the Act, have such other powers and duties as the board may specify. During the absence or disability of the president, or if no president has been appointed, the chief executive officer shall
also have the powers and duties of that office.
The board may from time to
time appoint a president who shall have such powers and duties as the board may specify, and subject to the authority of the board, the president shall be the chief operating officer. During the absence or disability of the chief executive officer,
or if no chief executive officer has been or is otherwise to be appointed, subject to the authority of the board and any limitations the board may prescribe, the president shall also have the powers and duties of that office, unless the board
otherwise determines.
The board may from time
to time appoint one or more vice-presidents. Any vice-president so appointed shall have such powers and duties as the board or the chief executive officer may specify.
6.7
|
Chief Financial Officer
|
The board may
from time to time appoint a chief financial officer. If so appointed, the chief financial officer will cause the preparation and maintenance of 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 funds of the Corporation and at the request of the board, will render an account of the Corporations financial transactions and the financial position of the Corporation. The chief
financial officer shall have such other powers and duties as the board or the chief executive officer may specify.
The board may from time to
time appoint a secretary. If so appointed, the secretary shall attend and be the secretary of all meetings of the board, shareholders and committees of the board and shall enter or cause to be entered in records kept for that purpose minutes of all
proceedings thereat; the secretary shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, the auditor and members of committees of the board; the secretary shall be the custodian of the stamp or
mechanical device generally used for affixing the corporate seal of the Corporation and of 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 the secretary shall have such other powers and duties as the board or the chief executive officer may specify.
The board may from time to
time appoint a treasurer. If so appointed, the treasurer, in the absence of a chief financial officer, 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; the treasurer shall render to the board whenever required an account of all of the treasurers transactions as treasurer and of the financial position of the Corporation; and the treasurer
shall have such other powers and duties as the board or the chief executive officer may specify.
C-10
6.10
|
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 or the chief executive officer 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 or the chief executive officer otherwise directs.
6.11
|
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.
The board, in its
discretion, may remove any officer of the Corporation, without prejudice to such officers rights under any employment contract. Otherwise, each officer appointed by the board shall hold office until such officers successor is appointed,
or until such officers earlier resignation or death.
6.13
|
Terms of Employment and Remuneration
|
The
terms of employment and the remuneration of officers appointed by the board shall be settled by it from time to time.
6.14
|
Conflict of Interest
|
An officer shall
disclose the officers interest in any material contract or transaction or proposed material contract or transaction with the Corporation in accordance with section 4.17.
6.15
|
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 of management or otherwise (including the power to sub-delegate) as may be thought fit.
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.
SECTION 7
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.1
|
Limitation of Liability
|
Each director
and officer of the Corporation in exercising his or her powers and discharging his or her duties shall act honestly and in good faith with a view to the best interests of the Corporation and exercise the care, diligence and skill that a reasonably
prudent person would exercise in comparable circumstances. Subject to the foregoing, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee, or for joining in any receipt or
other 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 for or on behalf of the Corporation, or for the insufficiency or deficiency of any
security in or upon which any of the monies of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the monies, securities or effects of the Corporation
shall be deposited, or for any loss occasioned by any error of judgment or oversight on such directors or officers part, or for any other loss, damage or misfortune whatever which shall happen in the execution of the duties of such
persons office or in relation thereto, unless the same are occasioned by such persons own wilful neglect or default; provided that nothing herein shall relieve any director or officer from the duty to act in accordance with the Act or
from liability for any breach thereof.
C-11
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 Corporations request as a director or officer or in a similar capacity of another entity (including
without limitation, a body corporate) and such individuals 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 the individual in
respect of any civil, criminal, administrative, investigative or other proceeding in which he or she is involved because of that association with the Corporation or other entity, if:
|
(a)
|
he or she acted honestly and in good faith with a view to the best interests of the Corporation or, as the case may be, with a view to the best interests of the other
entity for which the individual acted as a director or officer or in a similar capacity at the Corporations request; and
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|
(b)
|
in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he or she had reasonable grounds for believing that his or her
conduct was lawful.
|
The Corporation shall also indemnify such person in such other circumstances as the Act permits or
requires.
The Corporation, if
authorized by the board, may advance money to a director, officer or other individual referred to in section 7.2 hereof for the costs, charges and expenses of a proceeding referred to in section 7.2. The individual shall repay the money if
the individual does not fulfill the conditions set out in paragraphs 7.2(a) and 7.2(b).
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 7.2 hereof.
The board is
authorized from time to time to: (a) retain and instruct legal counsel to commence or defend legal proceedings on behalf of the Corporation and to authorize any settlement, compromise, waiver of privilege, plea in criminal or quasi-criminal
matters, proceedings or other steps whatsoever on behalf of the Corporation as the board considers expedient; and (b) delegate to such directors, officers or employees of the Corporation as the board may designate, any or all of the foregoing
powers to such extent and in such manner as the board may determine.
The Corporation may
with the approval of a court authorized to give such approval by the Act, indemnify an individual referred to in section 7.2, or advance money under section 7.3, in respect of action by or on behalf of the Corporation or other entity to
obtain a judgment in its favour, to which the individual is made a party because of the individuals association with the Corporation or other entity as described in section 7.2, against all costs, charges and expenses reasonably incurred
by the individual in connection with such action, if the individual fulfils the conditions set out in paragraphs 7.2(a) and 7.2(b).
SECTION 8
SHARES
Subject to the provisions of
the Act and the articles, the board may from time to time grant options to purchase or allot the 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 prescribed by the Act.
C-12
The board may from time to
time authorize the Corporation to pay a reasonable commission to any person in consideration of the person purchasing or agreeing to purchase shares of the Corporation from the Corporation or from any other person, or procuring or agreeing to
procure purchasers for any such shares.
8.3
|
Registration of Transfer
|
All transfer of
securities of the Corporation shall be made in accordance with the Act and the Securities Transfer Act. Subject to the provisions of the Act and the Securities Transfer Act, if a certificated security in registered form is presented to the
Corporation with a request to register a transfer of the certificated security or an instruction is presented to the Corporation with a request to register a transfer of an uncertificated security, the Corporation shall register the transfer as
requested provided that:
|
(a)
|
under the terms of the security, the proposed transferee is eligible to have the security registered in that persons name;
|
|
(b)
|
the endorsement or instruction is made by the appropriate person (as determined in accordance with the Securities Transfer Act) or by an agent who has
actual authority to act on behalf of the appropriate person;
|
|
(c)
|
reasonable assurance, in a manner determined by the board (or by any person or persons designated by the board) and in accordance with the Securities Transfer Act, is
given that the endorsement or instruction is genuine and authorized;
|
|
(d)
|
any applicable law relating to the collection of taxes has been complied with and upon any fees prescribed by the board;
|
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(e)
|
the transfer does not violate any restriction on transfer imposed by statute or by the Corporation, including a lien imposed by the Corporation in accordance with
section 8.5 hereof; and
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|
(f)
|
the transfer is rightful or is to a protected purchaser, as determined in accordance with the Securities Transfer Act.
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8.4
|
Transfer Agents and Registrars
|
The board
may from time to time appoint a registrar to maintain the securities register and a transfer agent to maintain the register of transfers and may also appoint one or more branch registrars to maintain branch securities registers and one or more
branch transfer agents to maintain branch registers of transfers, but one person may be appointed both registrar and transfer agent. The board may at any time terminate any such appointment.
8.5
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Lien for Indebtedness
|
If the articles
provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to any other provisions of the articles and to the Act, by the sale of the shares
thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.
8.6
|
Non-Recognition of Trusts
|
Subject to the
provisions of the Act, the Corporation shall treat the registered holder of a security as the person exclusively entitled to vote, to receive notices, to receive any interest, dividend or other payments in respect of such security, and otherwise to
exercise all the rights and powers of an owner of such security.
8.7
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Share Certificates and Uncertificated Securities
|
A share issued by the Corporation may be represented by a share certificate or may be an uncertificated security in accordance with the Act and the Securities Transfer Act. Unless the articles of the
Corporation otherwise provide,
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the board may determine that any class or series of the Corporations securities shall be uncertificated securities, provided that such determination by the board shall not apply to
securities represented by a certificate until such certificate is surrendered to the Corporation. Every holder of one or more shares of the Corporation that are certificated securities shall be entitled, at the holders option, to a share
certificate, or to a non-transferable written acknowledgment of the holders right to obtain a share certificate, stating the number and class or series of shares held by the holder as shown on the securities register. Share certificates and
acknowledgements of a shareholders 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 section 2.4 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 the person whose facsimile signature appears thereon has ceased to be a director or an officer of the Corporation at the date of issue of the certificate.
8.8
|
Replacement of Share Certificates
|
The
board or any officer or agent designated by the board may in its or such persons 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 wrongfully taken if the owner:
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(a)
|
so requests before the Corporation has notice that the share certificate has been acquired by a protected purchaser;
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(b)
|
unless the board otherwise determines in a particular case, furnishes the Corporation with an indemnity bond sufficient, in the opinion of the board, to protect the
Corporation and any transfer agent, registrar or other agent of the Corporation from any loss that the Corporation or any of them may suffer by complying with the request to issue the new share certificate; and
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(c)
|
satisfies any other reasonable requirements imposed by the Corporation from time to time, whether generally or in any particular case.
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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 or written acknowledgment referred to in section 8.7 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 share.
8.10
|
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 9
DIVIDENDS AND RIGHTS
The board may from time to
time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid by issuing fully paid shares of the Corporation and, subject to the provisions of the Act, in money or
property.
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A dividend payable in
cash shall be paid by cheque of the Corporation drawn on the Corporations bankers or one of them or if the Corporation has appointed a disbursement agent, by cheque of the disbursement agent drawn on the disbursement agents bankers or
one of them (or by other means by which such agent effects such payments in the normal course of its business as a disbursement agent) 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 such holders recorded address, unless 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 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.
9.3
|
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 or cause to be issued 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.
9.4
|
Record Date for Dividends and Rights
|
Subject to the Act and the rules of any stock exchange on which the shares of the Corporation are listed, the board may fix in advance, within the period
prescribed by the Act, a date as a record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities, provided that, unless notice of the record date is waived in
writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the board fixes the record date, notice of any such record date shall be given by the Corporation
within the period prescribed by the Act, by newspaper advertisement in the manner provided in the Act and by written notice to each stock exchange on which the shares of the Corporation are listed for trading. Where no record date is fixed in
advance as aforesaid, 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 to such dividend or right to subscribe is passed by the board.
Subject to the Act,
any dividend unclaimed after a period of 6 years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
SECTION 10
MEETINGS OF SHAREHOLDERS
Subject to
section 10.21, the board shall call an annual meeting of shareholders not later than eighteen months after the Corporation comes into existence and subsequently not later than fifteen months after holding the last preceding annual meeting, 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.
The board shall have
power to call a special meeting of shareholders at any time.
Meetings of
shareholders shall be held at such place in or outside Ontario as the board, or any person to whom such decision is delegated by the board, may from time to time determine or, in the absence of such a determination, at the place where the registered
office of the Corporation is located.
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Notice of the time
and place of each meeting of shareholders shall be given in the manner provided in section 12.1 and shall be sent:
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(a)
|
if the Corporation is an offering corporation, not less than 21 days; and
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(b)
|
if the Corporation is not an offering corporation, not less than 10 days;
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and in either case, not 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. Subject to the Act and any other applicable law, notice of a meeting of shareholders called for any purpose other than consideration of
the minutes of an earlier meeting, consideration of the financial statements and auditors 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 entitled to attend a meeting of shareholders may in
any manner and at any time waive notice of or otherwise consent to a meeting of shareholders.
10.5
|
Nomination of Directors
|
Subject only to
the Act, only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the board may be made at any annual meeting of shareholders,
or at any special meeting of shareholders (but only if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting), (a) by or at the direction of the board or
an authorized officer of the Corporation, including pursuant to a notice of meeting, (b) by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Act or a requisition of
the shareholders made in accordance with the provisions of the Act or (c) by any person (a
Nominating Shareholder
) (i) who, at the close of business on the date of the giving of the notice provided for below in this
section 10.5 and on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such
meeting and (ii) who complies with the notice procedures set forth below in this section 10.5:
(A)
|
In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, such person must have given (a) timely notice thereof in
proper written form to the secretary of the Corporation at the principal executive offices of the Corporation in accordance with this section 10.5 and (b) the representation and agreement with respect to each candidate for nomination as
required by, and within the time period specified in, subsection 10.5(D).
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(B)
|
To be timely under subsection 10.5(A)(a), a Nominating Shareholders notice to the secretary of the Corporation must be made (a) in the case of an annual
meeting of shareholders, not less than 30 nor more than 65 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is called for a date that is less than 40 days
after the date (the
Notice Date
) on which the first public announcement of the date of the annual meeting was made, notice by the Nominating Shareholder may be made not later than the tenth (10th) day following the Notice
Date; and (b) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other purposes), not later than the fifteenth (15th) day following
the day on which the first public announcement of the date of the special meeting of shareholders was made. Notwithstanding the foregoing, the board may, in its sole discretion, waive any requirement in this paragraph (B).
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(C)
|
To be in proper written form, a Nominating Shareholders notice to the secretary of the Corporation, under subsection 10.5(A)(a), must set forth
(a) as to each person whom the Nominating Shareholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person,
(iii) the class or series and number of shares in the capital of the Corporation which are controlled or which are owned beneficially or of record by the person as of the record date for the Meeting of Shareholders (if such date shall then have
been made
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|
publicly available and shall have occurred) and as of the date of such notice, (iv) a statement as to whether such person would be independent of the Corporation (within the
meaning of sections 1.4 and 1.5 of National Instrument 52-110 Audit Committees of the Canadian Securities Administrators, as such provisions may be amended from time to time) if elected as a director at such meeting and the reasons and basis
for such determination and (v) any other information relating to the person that would be required to be disclosed in a dissidents proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act
and Applicable Securities Laws; and (b) as to the Nominating Shareholder giving the notice, (i) any information relating to such Nominating Shareholder that would be required to be made in a dissidents proxy circular in connection
with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws, and (ii) the class or series and number of shares in the capital of the Corporation which are controlled or which are owned beneficially
or of record by the Nominating Shareholder as of the record date for the Meeting of Shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice.
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(D)
|
To be eligible to be a candidate for election as a director of the Corporation and to be duly nominated, a candidate must be nominated in the manner prescribed in this
section 10.5 and the candidate for nomination, whether nominated by the board or otherwise, must have previously delivered to the secretary of the Corporation at the principal executive offices of the Corporation, not less than 5 days prior to the
date of the Meeting of Shareholders, a written representation and agreement (in form provided by the Corporation) that such candidate for nomination, if elected as a director of the Corporation, will comply with all applicable corporate governance,
conflict of interest, confidentiality, share ownership, majority voting and insider trading policies and other policies and guidelines of the Corporation applicable to directors and in effect during such persons term in office as a director
(and, if requested by any candidate for nomination, the secretary of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect).
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(E)
|
No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the provisions of this section 10.5; provided, however,
that nothing in this section 10.5 shall be deemed to preclude discussion by a shareholder (as distinct from nominating directors) at a meeting of shareholders of any matter in respect of which it would have been entitled to submit a proposal
pursuant to the provisions of the Act. The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not
in compliance with such foregoing provisions, to declare that such defective nomination shall be disregarded.
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(F)
|
For purposes of this section 10.5:
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(a)
|
Affiliate, when used to indicate a relationship with a person, shall mean a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such specified person;
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(b)
|
Applicable Securities Laws means (i) the United States Securities Exchange Act of 1934, as amended, and the notes and regulations promulgated from time
to time thereunder and (ii) the
Securities Act
(Ontario) and the equivalent legislation in the other provinces and in the territories of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any
such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commissions and similar regulatory authorities of each of the applicable provinces and territories of Canada;
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(c)
|
Associate, when used to indicate a relationship with a specified person, shall mean (i) any corporation or trust of which such person owns
beneficially, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all voting securities of such corporation or trust for the time being outstanding, (ii) any partner of that person, (iii) any
trust or estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar capacity, (iv) a spouse of such specified person, (v) any person of either sex with whom such specified
person is living in conjugal relationship outside marriage or (vi) any relative of such specified person or of a person mentioned in clauses (iv) or (v) of this definition if that relative has the same residence as the specified
person;
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C-17
|
(d)
|
Derivatives Contract shall mean a contract between two parties (the Receiving Party and the Counterparty) that is designed to expose
the Receiving Party to economic benefits and risks that correspond substantially to the ownership by the Receiving Party of a number of shares in the capital of the Corporation or securities convertible into such shares specified or referenced in
such contract (the number corresponding to such economic benefits and risks, the Notional Securities), regardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, shares in
the capital of the Corporation or securities convertible into such shares or other property, without regard to any short position under the same or any other Derivatives Contract. For the avoidance of doubt, interests in broad-based index options,
broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate governmental authority shall not be deemed to be Derivatives Contracts;
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(e)
|
Meeting of Shareholders shall mean such annual shareholders meeting or special shareholders meeting, whether general or not, at which one or more persons
are nominated for election to the board by a Nominating Shareholder;
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|
(f)
|
owned beneficially or owns beneficially means, in connection with the ownership of shares in the capital of the Corporation by a person,
(i) any such shares as to which such person or any of such persons Affiliates or Associates owns at law or in equity, or has the right to acquire or become the owner at law or in equity, where such right is exercisable immediately or
after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, upon the exercise of any conversion right, exchange right or purchase right attaching to any securities, or pursuant to any
agreement, arrangement, pledge or understanding whether or not in writing; (ii) any such shares as to which such person or any of such persons Affiliates or Associates has the right to vote, or the right to direct the voting, where such
right is exercisable immediately or after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, pursuant to any agreement, arrangement, pledge or understanding whether or not in
writing; (iii) any such shares which are beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterpartys Affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position
under the same or any other Derivatives Contract) to which such person or any of such persons Affiliates or Associates is a Receiving Party; provided, however that the number of shares that a person owns beneficially pursuant to this clause
(iii) in connection with a particular Derivatives Contract shall not exceed the number of Notional Securities with respect to such Derivatives Contract; provided, further, that the number of securities owned beneficially by each Counterparty
(including their respective Affiliates and Associates) under a Derivatives Contract shall for purposes of this clause be deemed to include all securities that are owned beneficially, directly or indirectly, by any other Counterparty (or any of such
other Counterpartys Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first Counterpartys Affiliates or Associates) is a Receiving Party and this proviso shall be applied to
successive Counterparties as appropriate; and (iv) any such shares which are owned beneficially within the meaning of this definition by any other person with whom such person is acting jointly or in concert with respect to the Corporation or
any of its securities; and
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(g)
|
public announcement shall mean disclosure in a press release reported by a national news service in Canada, or in a document publicly filed by the
Corporation or its agents under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com.
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(G)
|
Notwithstanding section 12, notice or any delivery given to the secretary of the Corporation pursuant to this section 10.5 may only be given by
personal delivery, facsimile transmission or by email (provided that the secretary of the Corporation has stipulated an email address for purposes of this notice, at such email address as stipulated from time to time), and shall be deemed to have
been given and made only at the time it is served by personal delivery, email (at the address as aforesaid) or sent by facsimile transmission
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C-18
|
(provided that receipt of confirmation of such transmission has been received) to the secretary at the address of the principal executive offices of the Corporation; provided that if such
delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Toronto time) on a day which is a business day, then such delivery or electronic communication shall be deemed to have been made on the
subsequent day that is a business day.
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(H)
|
In no event shall any adjournment or postponement of a meeting of shareholders or the announcement thereof commence a new time period for the giving of a Nominating
Shareholders notice as described in subsection 10.5(B) or the delivery of a representation and agreement as described in subsection 10.5(D).
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10.6
|
List of Shareholders Entitled to Notice
|
For every meeting of shareholders, the Corporation shall prepare or cause to be prepared a list of shareholders entitled to receive notice of the meeting,
arranged in alphabetical order and showing the number of shares entitled to vote at the meeting held by each shareholder. If a record date for the meeting is fixed pursuant to section 10.7, 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, on the day on which the meeting is held. Such list shall be prepared, if a record date for the determination of shareholders entitled to notice of the meeting is fixed pursuant to section 10.7, not later than 10 days after
such record date and if no record date is fixed, at the close of business on the day on which notice is given or where no notice is given, on 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. Where a separate list of shareholders has not been prepared, the
names of persons appearing in the securities register at the requisite time as the holder of one or more shares carrying the right to vote at such meeting shall be deemed to be a list of shareholders.
10.7
|
Record Date for Notice
|
The board may fix
in advance a date, preceding the date of any meeting of shareholders by not more than 60 days and not less than 30 days, as a record date for the determination of the shareholders entitled to notice of the meeting. If a record date is
fixed, unless notice thereof is waived in writing by every holder of a share of the class or series affected whose name is set out in the share register at the close of business on the day the board fixes the record date, notice thereof shall, not
less than seven days before the date so fixed, be given in the manner provided in the Act. If no record date is so fixed, the record date for the determination of the shareholders entitled to receive notice of the meeting shall be 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.
10.8
|
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 except where they attend the meeting for the express purpose of objecting
that the meeting is not duly called or if those not present or represented by proxy waive notice of or otherwise consent to such meeting being held; and
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(b)
|
if the auditor and the directors are present except where they attend the meeting for the express purpose of objecting that the meeting is not duly called or waive
notice of or otherwise consent to such meeting being held.
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At such a meeting any business may be transacted which the
Corporation at a meeting of shareholders may transact.
10.9
|
Chair, Secretary and Scrutineers
|
The
chair 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 and prepared to act as chair of the meeting: chair of the board, vice-chair of the board,
chief executive officer, president, or a vice-president who is a shareholder. If none of such
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officers is present within 15 minutes after the time fixed for the holding of the meeting, or none of such officers that are present are prepared to act as chair of the meeting, the persons
present and entitled to vote shall choose a person from their number to be the chair. If the secretary of the Corporation is absent, the chair 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 chair with the consent of the meeting.
10.10
|
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 by-laws of the Corporation to be present at the meeting. Any other person may be admitted only on the invitation of the chair of the meeting or with the consent of the meeting.
A quorum for the transaction of
business at any meeting of shareholders shall be two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxyholder for a shareholder so entitled, holding or representing in the aggregate not less than
one-third of the issued and outstanding shares of the Corporation entitling the holders thereof to vote at such meeting. If a quorum is present at the opening of any meeting of shareholders, the shareholders present or represented may proceed with
the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the time appointed for the meeting or within a reasonable time thereafter as the shareholders may determine, the
shareholders present or represented may adjourn the meeting to a fixed time and place but may not transact any other business.
10.12
|
Right to Vote and Record Date for Voting
|
Subject to the provisions of the Act as to authorized representatives of any other body corporate, at any meeting of shareholders in respect of which the
Corporation has prepared the list referred to in section 10.6, every person who is named in such list shall be entitled to vote the shares shown thereon opposite such persons name at the meeting to which the list relates.
In the absence of a list prepared as aforesaid in respect of a meeting of shareholders, every person shall be entitled to vote at the meeting whose name
appears in the securities register as the holder of one or more shares carrying the right to vote at such meeting.
Every shareholder entitled to
vote at a meeting of shareholders may by means of a proxy appoint a proxyholder, or one or more alternate proxyholders, who need not be shareholders, as such shareholders nominees to attend and act at the meeting in the manner, to the extent
and with the authority conferred by the proxy. To be effective, each proxy must be signed in writing or by electronic signature in accordance with the Act by the shareholder or his attorney authorized by a document that is signed in writing or by
electronic signature in accordance with the Act or, if the shareholder is a body corporate, by an officer or attorney thereof duly authorized. Every form of proxy shall comply with the Act.
10.14
|
Time for Deposit of Proxies
|
The board
may by resolution fix a time not exceeding 48 hours, excluding Saturdays and holidays, preceding any meeting or adjourned meeting of shareholders, before which time proxies to be used at that meeting must be deposited with the Corporation or an
agent thereof, and any period of time so fixed shall be specified in the notice calling the meeting. 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, unless it has been received by the secretary of the Corporation or by the chair of the meeting or any adjournment thereof prior to the time of voting.
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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 on the shares jointly held by them.
At any meeting of
shareholders every question shall, unless otherwise required by the articles or by-laws of the Corporation or by the Act, or by the requirements of any stock exchange on which the Corporations shares are then listed, be determined by the
majority of the votes cast on the question. In case of an equality of votes, whether upon a show of hands, a poll or a vote conducted by means of a telephonic, electronic or other communication facility, the chair presiding at the meeting shall not
be entitled to a second or casting vote.
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 chair 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.
Despite
section 10.17, any vote referred to in section 10.17, if so permitted by and in accordance with the Act, may be held entirely by means of telephonic, electronic or other communication facility, if the Corporation elects to make available
such a communication facility.
On any question proposed for
consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, any shareholder or proxyholder entitled to vote at the meeting or the chair of the meeting, may require or demand a ballot. A ballot so required
or demanded shall be taken in such manner as the chair 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 such person 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.
If a quorum is not present
at the time appointed for a meeting of shareholders or within such reasonable time thereafter as the shareholders present may determine, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other
business. 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 aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting.
10.21
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Resolution in Writing
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A resolution in
writing signed by all the shareholders (or their attorneys authorized in writing) 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 of the Corporation in accordance with the Act.
C-21
10.22
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Only One Shareholder
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Where the
Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.
SECTION 11
DIVISIONS AND DEPARTMENTS
11.1
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Creation and Consolidation of Divisions
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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 of any such divisions or sub-units to be consolidated upon such basis as the board may consider appropriate in each case.
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.
11.3
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Officers of Divisions
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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 the chief executive officers pleasure any officer so appointed, without prejudice to such officers rights under any employment contract. Officers of divisions or their sub-units
shall not, as such, be officers of the Corporation.
SECTION 12
NOTICES
12.1
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Method of Giving Notice
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Any notice
(which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, 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 the persons recorded address or if mailed to the person at their recorded address by prepaid ordinary or air mail or if sent
to the person at their recorded address by any means of transmitted or recorded communication or if transmitted or accessed by the person in accordance with the provisions of the Act and the Electronic Commerce Act governing electronic documents. 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 received on the fifth day after mailing; 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; and a notice so given in accordance with provisions
of the Act and the Electronic Commerce Act governing electronic documents shall be deemed to have been given in accordance with the rules contained in such provisions. 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 the secretary to be reliable.
12.2
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Notice to Joint Shareholders
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If two or
more persons are registered as joint holders of any share, any notice shall be addressed to all of such joint holders but notice to one of such persons shall be sufficient notice to all of them.
C-22
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, day means a clear day and a period of days shall be deemed to commence the day following the event that
began the period and shall be deemed to terminate at midnight of the last day of the period except that if the last day of the period falls on a Sunday or holiday, the period shall terminate at midnight of the day next following that is not a Sunday
or holiday.
If any notice given
to a shareholder pursuant to section 12.1 is returned on three consecutive occasions because the shareholder cannot be found, the Corporation shall not be required to give any further notices to such shareholder until the shareholder informs
the Corporation in writing of the shareholders new address.
12.5
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Omissions and Errors
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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 founded thereon.
12.6
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Persons Entitled by Death or Operation of Law
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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 such person derives such persons title to such share prior to such persons name and address being entered on the securities register (whether such notice was given before or after
the happening of the event upon which such person became so entitled) and prior to such person furnishing to the Corporation the proof of authority or evidence of such persons entitlement prescribed by the Act.
Any shareholder (or the
shareholders duly appointed proxyholder), director, officer, auditor or member of a committee of the board may at any time waive the sending of any notice, or waive or abridge the time for any notice, required to be given to the person under
any provision of the Act, the regulations thereunder, the articles, the by-laws or otherwise and such waiver or abridgement shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall
be in writing or by electronic means in accordance with the Act and the Electronic Commerce Act except a waiver of notice of a meeting of shareholders or of the board or a committee of the board which may be given in any manner.
SECTION 13
REPEAL
By-Laws No. 6 and 7 of the
Corporation is repealed as of the coming into force of this by-law. Such repeal shall not affect the previous operation of any by-law so repealed or affect the validity of any act done or right, privilege, obligation or liability acquired or
incurred under, or the validity of any contract or agreement made pursuant to, any such by-law prior to its repeal. All officers and persons acting under any by-law so repealed shall continue to act as if appointed under the provisions of this
by-law and all resolutions of the shareholders or the board or a committee of the board with continuing effect passed under any repealed by-law shall continue to be good and valid except to the extent inconsistent with this by-law and until amended
or repealed.
SECTION 14
EFFECTIVE DATE
This by-law shall come
into force when enacted by the directors, subject to the Act.
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ENACTED
by the Board the 18
th
day of March, 2013.
WITNESS
the corporate seal of the Corporation.
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Richard E. Gaetz
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Fayaz D. Suleman
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c/s
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Chief Executive Officer Richard E. Gaetz
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Chief Financial Officer and Secretary Fayaz D. Suleman
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CONFIRMED
by the shareholders the day of
, 2013.
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c/s
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Chief Financial Officer and Secretary Fayaz D. Suleman
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C-24
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Computershare
9
th
Floor,
100 University Avenue
Toronto, Ontario M5J 2Y1
www.computershare.com
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Security Class
Holder Account Number
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COMMON
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Form of Proxy Annual General and Special Meeting to be held on May 15, 2013
This Form of Proxy is solicited by and on behalf of Management.
Notes to proxy
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Every holder has the right to appoint some other person or company of their choice, who need not be a shareholder, to attend and act on their behalf at the meeting
or any adjournment or postponement thereof. If you wish to appoint a person or company other than the persons whose names are printed herein, please insert the name of your chosen proxyholder in the space provided (see reverse).
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2.
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If the securities are registered in the name of more than one owner (for example, joint ownership, trustees, executors, etc.), then all those registered should sign
this proxy. If you are voting on behalf of a corporation or another individual you may be required to provide documentation evidencing your power to sign this proxy with signing capacity stated.
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3.
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This proxy should be signed in the exact manner as the name appears on the proxy.
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4.
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If this proxy is not dated in the space provided (see reverse), it will be deemed to bear the date on which it is mailed by Management to the holder.
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5.
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The securities represented by this proxy will be voted as directed by the holder, however, if such a direction is not made in respect of any matter, this proxy will
be voted FOR all of the resolutions set forth in this proxy (see reverse).
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6.
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The securities represented by this proxy will be voted or withheld from voting, in accordance with the instructions of the holder, on any ballot that may be called for
and, if the holder has specified a choice with respect to any matter to be acted on, the securities will be voted accordingly.
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7.
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This proxy confers discretionary authority in respect of amendments or variations to matters identified in the Notice of Meeting or other matters that may properly come
before the meeting or any adjournment or postponement thereof.
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8.
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This proxy should be read in conjunction with the accompanying documentation provided by Management.
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Proxies submitted must be received by 4:30 p.m., Toronto time, on May 13, 2013.
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Appointment of Proxyholder
I/We being holder(s) of common shares of Vitran Corporation Inc. (the Company) hereby appoint:
William S. Deluce, the Interim President and Chief Executive Officer of the Company, or
failing this person, Richard D. McGraw, a director of the Company
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OR
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Print the name of the person or company you are
appointing if this person or company is someone other than the Management Nominees listed herein.
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as my/our proxyholder with full power of substitution and to vote in accordance with the following direction (or if no
directions have been given, as the proxyholder sees fit) and all other matters that may properly come before the Annual General and Special Meeting of VITRAN CORPORATION INC. to be held at the offices of the Company, 185 The West Mall, Suite 701,
Toronto, Ontario, M9C 5L5 on May 15, 2013 at 4:30 p.m., Eastern Standard Time, and at any adjournment thereof.
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VOTING RECOMMENDATIONS ARE INDICATED BY
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HIGHLIGHTED TEXT
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OVER THE BOXES.
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1.
Election of Directors
A WITHHOLD VOTE WILL BE CONSIDERED TO BE AN AGAINST VOTE ON AND SUBJECT TO THE APPLICATION OF THE COMPANYS MAJORITY VOTING POLICY. SEE ELECTION OF DIRECTORS
MAJORITY VOTING POLICY IN THE ACCOMPANYING MANAGEMENT INFORMATION CIRCULAR.
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For
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Withhold
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For
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Withhold
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01. Richard D. McGraw
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02. William S. Deluce
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03. John R. Gossling
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04. Georges L. Hébert
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05. David S. McClimon
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For
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Withhold
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2.
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Appointment of Auditors
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Appointment of KPMG LLP as Auditors of the Company and authorizing the directors of the Company to fix their remuneration.
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For
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Against
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Abstain
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3.
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Advisory Vote on Compensation of Named Executive Officers
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Advisory resolution to approve the compensation of the named executive officers as disclosed in the accompanying Management Information Circular.
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For
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Against
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Abstain
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4.
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Amended and Restated Stock Option Plan
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Approval of the Companys amended and restated option plan as described in the accompanying Management Information Circular.
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For
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Against
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Abstain
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5.
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Resolution Approving By-Law No. 8, other than Sections 4.16 (Resolution 6) and 10.5 (Resolution 7)
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Approval of a resolution confirming By-Law No. 8 (other than the elimination of the casting vote in favour of the Chair of the meeting of the board of
directors and the adoption of advance notice provisions with respect to the nomination of directors, which are the subjects of resolutions 6 and 7, respectively) as the new general by-law, which new general by-law effects changes to the previous
by-laws that are primarily ministerial in nature.
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For
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Against
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Abstain
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6.
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Resolution Approving Section 4.16 of By-Law No. 8, which eliminates the Chairs casting vote
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Approval of a resolution confirming Section 4.16 of By-Law No. 8, which effects a change to the previous by-laws of the Company to eliminate the second or
casting vote in favour of the Chair of the meeting of the board of directors of the Company if there is a tie in the votes cast by directors at such meeting.
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¨
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- 2 -
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For
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Against
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Abstain
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7.
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Resolution Approving Section 10.5 of By-Law No. 8, which provides for the adoption of advance notice provisions
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Approval of a resolution confirming Section 10.5 of By-Law No. 8, which effects a change to the previous by-laws of the Company to provide for advance notice
provisions with respect to the nomination of directors.
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Each of resolutions 5, 6 and 7 is mutually conditioned upon the approval of all three resolutions as set forth in the accompanying Management Information
Circular.
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Authorized Signature(s) - This section must be completed for your instructions to be executed.
I/We authorize you to act in accordance with my/our instructions set out above. I/We hereby revoke any proxy previously given with respect to the Meeting.
If no voting instructions are indicated above, this Proxy will be voted as recommended by Management.
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Signature(s)
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Date
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Interim Financial Statements -
Mark this box if you would like to receive interim financial statements and related Managements Discussion and Analysis by
mail
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Annual Report -
Mark this box if you would like to receive the Annual Report and related Managements Discussion and Analysis by mail.
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If you are not mailing back your proxy, you may register online to receive the above financial report(s) by mail at
www.computershare.com/mailinglist.
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