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HomeMy WebLinkAboutBy-law 6207/03THE CORPORATION OF THE CITY OF PICKERING BY-LAW NO. 6207/03 Being a by-law to approve and authorize the execution of an amendment made as of the 30th day of September, 2003 to the Shareholders' Agreement made as of the 28th day of September, 2001 amongst The Corporation of the Town of Ajax, The Corporation of the City of Belleville, The Municipality of Clarington, The Corporation of the City of Pickering, Veridian Corporation, Veridian Connections Inc. and Veridian Energy Inc. WHEREAS The Corporation of the Town of Ajax ("Ajax"), The Corporation of the City of Belleville ("Belleville"), The Municipality of Clarington ("Clarington") and The Corporation of the City of Pickering ("Pickering") entered into a shareholders' agreement (the "Shareholders' Agreement") made as of the 28th day of September, 2001 with Veridian Corporation, Veridian Connections Inc. and Veridian Energy Inc.; AND WHEREAS the parties to the Shareholders' Agreement wish to amend the same to (a) provide that the Chair and Vice-chair of Veridian Corporation may be any one of the nominees to its board; (b) remove the provisions relating to an executive committee of Veridian Corporation; (c) to permit each shareholder to nominate Council appointees to the board of directors of Veridian Corporation so long as at least one of each shareholders is not a Council appointee of that shareholder; and (d) grant Belleville an additional nominee to the board of directors of Veridian Corporation; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF PICKERING ENACTS AS FOLLOWS: That Council authorizes and approves the first amending agreement to the Shareholders' Agreement (the "First Amending Agreement") made as of the 14th day of October, 2003 amongst Ajax, Belleville, Clarington and Pickering, as the shareholders of Veridian Corporation, Veridian Connections Inc. and Veridian Energy Inc. in the form of the draft agreement presented to Council and attached hereto as Schedule "A"; That the Mayor and the Clerk are authorized to execute the First Amending Agreement. That the Clerk is authorized to affix the Corporate Seal of The City of Pickering to the First Amending Agreement. 4. By-law 6158/03 is hereby repealed. By-law read a first, second and third time and finally passed t~is 14th day of October, 2003. I~'~r~ayor /~City Clerk Schedule A FIRST AMENDING AGREEMENT TO SHAREHOLDERS' AGREEMENT THIS FIRST AMENDING AGREEMENT made as of the *** day of ********, 2003. BETWEEN: The Corporation of the Town of Ajax, a municipal corporation existing under the laws of Ontario ("Ajax") The Corporation of the under the laws of Ontario ("Belleville") - and - City of Belleville, a municipal corporation existing The Corporation of the Municipality of Clarington, a municipal corporation existing under the laws of Ontario ("Clatington") The Corporation of the under the laws of Ontario ("Picketing") - and - City of Pickering, a municipal corporation existing - and - Veridian Corporation, a corporation existing under the laws of Ontario ("VC") - and - Veridian Connections Inc., a corporation existing under the laws of Ontario ("vcr') - and - Veridian Energy Inc., a corporation existing under the laws of Ontario ("VEI") - and - (Ajax, Belleville, Clarington, Pickering, VC, VCI and VEl are collectively referred to herein as the "Parties") RECITALS: mo The Parties entered into a shareholders' agreement made as of the 28th day of September, 2001 (the "Shareholders' Agreement"); The Parties wish to amend the Shareholders' Agreement to (i) permit a Belleville nominee to serve as the Chair or Vice-Chair of the board of directors of VC (the "Board"); (ii) delete the provisions of the Shareholders' Agreement relating to the executive committee of the Board; (iii) to allow for an increase in each municipal Party's Council representation on the board of directors of VC; and (iv) grant Belleville one additional nominee to the board of directors of VC; NOW THEREFORE THIS FIRST AMENDING AGREEMENT WITNESSES that in consideration of the respective covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: All capitalized terms used in this First Amending Agreement and not defined herein shall have the meanings given to them in the Shareholders' Agreement. o All references herein to Sections and Subsections are references to Sections and Subsections in the Shareholders' Agreement unless otherwise stated herein. 3. In Section 1.1, the definition of "Majority Rule" is hereby deleted. 4. In Section 1.1, the following definition of "Mayor's Designate" is hereby added: .... Mayor's Designate" means the designate selected by the Mayor to serve on the Board in place of the Mayor provided that the Mayor's Designate shall be a member of that Mayor's municipal Council." 5. Subsection 3.2(b) is hereby deleted and replaced with the following: "The Board and Subsidiary Boards. The business and affairs of Veridian Corporation shall be managed or supervised by the Board which shall consist of 14 directors or such other number of directors as the Shareholders may determine from time to time by special resolution in accordance with the Act. Each of the Initial Shareholders shall nominate the number of members to the Board listed opposite that Initial Shareholder's name below: Number of Directors Nominee of 4 Ajax 2 Belleville 3 Clarington -3- 5 Pickering The Board shall annually elect from its members a Chair and Vice-Chair. o o 10. Subsection 3.2(d) is hereby deleted and replaced with the following: "Qualifications of Board. Each Initial Shareholder shall nominate the Mayor of the Initial Shareholder or the Mayor's Designate as one of the Initial Shareholder's nominees to the Board provided that if the Mayor ceases to hold the office of Mayor, the appointing Initial Shareholder shall forthwith replace the Mayor or the Mayor's Designate, as applicable. Each Initial Shareholder shall nominate to the Board members of its council (including the Mayor or the Mayor's Designate) ("Council Appointees") provided that at least one nominee of each Initial Shareholder shall not be a Council Appointee of that Initial Shareholder. In addition to the requirements of the Act, the qualifications of candidates for the Board shall, where possible, include the following: (i) business experience; (ii) time availability; (iii) financial skills; (iv) marketing skills; (v) industry knowledge; (vi) independence of judgment; (vii) integrity; (viii) knowledge of public policy issues relating to the Corporations; and (ix) knowledge and experience concerning environmental matters, labour relations and occupational health and safety issues." Subsection 3.2(3) is hereby amended by adding the following sentence immediately after the end of the second sentence of Subsection 3.2(3): "In the event that an equal number of votes are cast at a meeting both for and against a motion, the motion shall be defeated." Subsection 3.3(a) is hereby amended by deleting in its entirety Subsection 3.3(a). Except as expressly set out herein, the Shareholders' Agreement remains in full force and effect, unamended. This First Amending Agreement shall be governed by and construed in accordance with the laws of Ontario. -4- 11. This First Amending Agreement shall enure to the benefit of, and be binding on, the Parties and their respective successors and permitted assigns. 12. This First Amending Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same agreement. IN WITNESS WHEREOF the Parties by their duly authorized representatives have executed this First Amending Agreement as of the day and year first above written. THE CORPORATION OF THE TOWN OF AJAX By: c/s Name: Steve Parish Title: Mayor By:. c/s Name: Marry deRond Title: Clerk THE CORPORATION OF THE CITY OF BELLEVILLE By: c/s Name: George A. Zegouras Title: Mayor By: c/s Name: Wayne Tod Title: City Clerk THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: c/s Name: John Mutton Title: Mayor By: c/s Name: Patti Barrie Title: Clerk -5- THE CORPORATION PICKERING OF THE CITY OF By:, Name: Maurice Brenner Title: Interim Mayor c/s By: Name: Bruce Taylor Title: Clerk c/s VERIDIAN CORPORATION By: Name: John Wiersma Title: President c/s By: Name: James Mason Title: Chair c/s VERIDIAN CONNECTIONS INC. By:, Name: John Wiersma Title: President c/s By: Name: Jim McMaster Title: Chair c/s VERIDIAN ENERGY INC. By: Name: John Wiersma Title: President c/s By: Name: Jim Witty Title: Chair c/s ::ODM A\PCDOCS\CCTx422470\7 ATTACHMENT I:;[EPOI:t,T://.~ VERIDIAN CORPORATION (the "Corporation") RESOLUTION OF SHAREHOLDERS Directors WI-IEREAS effective October 9, 2003 Wayne Arthurs has ceased to be the Mayor of the City of Pickering and accordingly ceases to be a director of the Corporation on such date; AND WHEREAS The Corporation of the City of Pickering has notified the Corporation that Maurice Brenner has been appointed Interim Mayor effective October 9, 2003; AND WHEREAS pursuant to the shareholder agreement in respect of the Corporation dated September 28, 2001, The Corporation of the City of Pickering has nominated, by nomination attached hereto, Maurice Brenner for a director of the Corporation; RESOLVED that Maurice Brenner is declared to be elected a director of the Corporation to hold office for a term expiring the earlier of, the date he ceases to be Interim Mayor of the City of Pickering and the close of the next ensuing third annual meeting of the shareholders, or until his successor is elected or appointed pursuant to the provisions of the shareholder agreement dated September 28, 2001,. as amended and replaced from time to time. THE FOREGOING RESOLUTION in writing is consented to by all the shareholders of the Corporation pursuant to the provisions of the Business Corporations Act (Ontario). DATED as of the 14th day of October, 2003. THE CORPORATION OF THE TOWN OF AJAX THE CORPORATION OF THE CITY OF BELLEVILLE per: per: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON THE CORPORATION OF THE CITY OF PICKERING per: per: ::ODMA\PCDOCS\CCT~457961\1 TO: AND TO: /~TTACHHEN? #~TO REPORT #..~2.Y ~-~3 NOMINATION VERIDIAN CORPORATION THE SHAREHOLDERS THEREOF The undersigned advises that Maurice Brenner has been appointed Interim Mayor of the City of Pickering effective October 9, 2003. Pursuant to section 3.2(c) of the shareholder agreement dated September 28, 2001, the undersigned nominates Maurice Brenner for a director of Veridian Corporation. Dated the 14~ day of October, 2003. THE CORPORATION OF THE CITY OF PICKERING per: ~CHPtr. N ~ # ,_.~._TO REPORT# e:~' .s,-4 --o3 CERTIFICATE AND CONSENT TO: VERIDIAN CORPORATION I consent to serve as a director of the Corporation. I (a) certify that I am (i) a citizen or permanent resident of Canada, and (ii) ordinarily resident in Canada, (b) acknowledge that the Corporation is relying upon this certificate for the purpose of ensuring compliance by the Corporation with the provisions of the Business Corporations Act and (c) agree to advise the Corporation immediately by an instrument in writing delivered to the Corporation of any change in my citizenship or place of residence. I consent to the participation by any director at a meeting of the board of directors or a committee of directors by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, such consent to continue in effect unless revoked by an instrument in writing delivered to the Corporation. DATED as of the 14m day of October, 2003. Maurice Brenner ATTACHMENT#_.~ TO REPORT PROXY AND DESIGNATION OF SHAREHOLDER REPRESENTATIVE For use at annual and special general meetings of shareholders of VERIDIAN CORPORATION (the "Corporation") DESIGNATION OF SHAREHOLDER REPRESENTATIVE Pursuant to Section 3.7 of the shareholders' agreement dated September 28, 2001 among The Corporation of the Town of Ajax, The Corporation of the City of Belleville, The Corporation of the Municipality of Clarington, The Corporation of the City of Pickering and the Corporation, et al (the "Shareholders Agreement"), the undersigned shareholder of the Corporation hereby designates MAURICE BRENNER, its Interim Mayor, as its legal representative (the "Shareholder Representative") for the purposes of providing any consent or approval required by the Shareholders' Agreement or by the Business Corporations Act (Ontario) (the "Act"). In the event that the Mayor is unable or unwilling to act as the Shareholder Representative, the undersigned hereby designates TOM QUINN, its Chief Administrative Officer, as the Shareholder Representative for the purposes of the Shareholders' Agreement and the Act until the undersigned expressly determines otherwise. APPOINTMENT OF PROXY The undersigned hereby appoints the Shareholder Representative, MAURICE BRENNER, its Interim Mayor, or, failing him, TOM QUINN, its Chief Administrative Officer, to attend and act for and on its behalf in respect of any and all matters that may come before any annual or special general meeting of the Corporation to be held from time to time and at any and every adjournment of any such meeting so held and with respect to any and all matters which may be brought before or dealt with at such meeting or otherwise with respect to which the holders of Common shares of the Corporation shall be entitled to vote and the said Mayor or the said Chief Administrative Officer, as the case may be, shall be entitled to vote all shares of the Corporation owned by the undersigned in his sole discretion with respect to such matters being voted upon and with respect to any amendments or variations relating thereto. It is understood that this appointment shall continue in full force and effect, and the Corporation may rely thereupon until such time as either a revocation thereof or a new form of proxy replacing the form of proxy herein is delivered by the undersigned to the Corporation. This Proxy and Designation of Shareholder Representative is issued in replacement of the Proxy and Designation of Shareholder previously issued by The Corporation of the City of Pickering on September 28, 2001. DATED as of the 14t~ day of October, 2003. THE CORPORATION OF THE CITY OF PICKERING per: Name: Maurice Brenner Title: Interim Mayor per: Name: Bruce Taylor Title: Clerk INDEMNITY AGREEMENT This Agreement made as of the 14th day of October, 2003. BETWEEN: VERIDIAN CORPORATION, a corporation amalgamated under the laws of Ontario, (hereinafter referred to as "HoldCo") OF THE FIRST PART, - and - MAURICE BRENNER, (hereinafter referred to as the "Director") OF THE SECOND PART, WHEREAS HoldCo is formed under the provisions of the Business Corporations Act (Ontario) (the "Act"); AND WHEREAS the Director, at the request of HoldCo, has accepted the position of a director of HoldCo; AND WHEREAS the Director has no direct or indirect financial interest in HoldCo; AND WHEREAS the by-laws of HoldCo provide that it shall indemnify a director or officer in certain circumstances. NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and the covenants and agreements herein contained and for other good and valuable consideration (the receipt and adequacy of which is hereby acknowledged by each of the parties hereto), and in consideration of the Director's consenting to act as a director of HoldCo and acceding to HoldCo's request to accept such position, the parties agree as follows: 1. HoldCo shall indemnify the Director and his heirs and legal representatives against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director of HoldCo iff (a) he acted honestly and in good faith with a view to the best interests of HoldCo; (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful; and (c) in the case of an action by or on behalf of HoldCo to procure a judgment in its favour, HoldCo obtains any approval required under the Act in respect of such indemnification. 2. HoldCo shall use its best efforts to obtain any approval required under the Act or otherwise in respect of any indemnification required to be made by it under this agreement. 3. HoldCo shall indemnify the Director in such other circumstances as the Act, as amended from time to time, permits or requires. 4. Any indemnification to be made to the Director under this agreement shall not be affected by any remuneration that he shall have received, or to which he may be entitled, at any time for acting in his capacity as a director of HoldCo. 5. HoldCo shall purchase and maintain insurance for the benefit of the Director against any liability incurred by the Director in his capacity as a director of HoldCo, except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of HoldCo. 6. This agreement may not be assigned by HoidCo and shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. 7. This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The parties hereby attorn and submit to the non-exclusive jurisdiction of the Courts of the Province of Ontario in connection with any action, suit or proceeding brought in relation to this agreement. 8. The parties shall sign such further and other resolutions, documents and papers, cause such meetings to be held, votes cast, special resolutions and resolutions passed, by-laws enacted and documents executed, and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable to give full effect to this agreement. 9. This agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. i0. This agreement may not be amended except by an instrument in writing signed by all parties hereto which specifically refers to the amendment of.this agreement. This agreement shall be effective as of the date hereof and shall remain in full force and effect until such time as the Director ceases to be a director of HoldCo. Termination of this agreement in accordance with its terms shall not affect any obligation of HoldCo, arising prior to termination in favour of the Director, including without limitation any obligation to indemnify by reason of any matter which has arisen or circumstances which have occurred prior to termination. 11. The invalidity or unenforceability of any provision of this agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained, and the agreement shall be construed as if such invalid or unenforceable provision or covenant were omitted. 12. In this agreement where the context so requires words importing number shall include the singular and plural, words importing gender shall include the masculine, feminine and neuter genders and words importing persons shall include firms and corporations and vice versa. 13. Time shall be of the essence of this agreement and of each and every part hereof. IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day and year first above written. (Witness) Maurice Brenner, Interim Mayor VERIDIAN CORPORATION per: per: James Mason, Chair of the Board John Wiersma, President : :ODMA\PCDOCS\CCTx457973\I