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Alberta
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76-0419312
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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3993 West Sam Houston Parkway North
Suite 100
Houston, Texas
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77043-1221
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(Address of Principal Executive Offices)
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(Zip Code)
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Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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•
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provide the Board with greater flexibility regarding the persons who may be authorized to execute contracts and instruments on behalf of the Company (Section 1.01);
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•
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confirm that documents may be signed in counterparts (Section 1.06);
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•
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update the procedures for calling a meeting of the Board of Directors, provide a mechanism for adjournment of meetings of the Board of Directors, and incorporate the requirement under the ABCA that at least one-quarter of the Board of Directors (and each committee) be resident Canadians (Part 3);
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•
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update: (1) the procedures for calling a special meeting of shareholders, (2) the order of presiding officers at shareholder meetings, (3) the voting procedures at shareholder meetings, and (4) the adjournment procedures for shareholder meetings (Sections 4.03, 4.04, 4.08 and 4.13);
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•
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update the description of officers contained in the By-laws (Part 5);
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•
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provide for the establishment and disclosure of director, officer and employee remuneration in a manner consistent with the ABCA (Part 6); and
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•
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provide for electronic payment of dividends, as well as prescribe the date on which unclaimed dividends are forfeited in accordance with Canadian law relating to unclaimed personal property (Sections 10.03 and 10.05).
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Exhibit 3.1
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Amended and Restated By-laws adopted March 6, 2014 by the Board of Directors.
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TESCO CORPORATION
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Date: March 11, 2014
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By:
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/s/ Dean Ferris
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Dean Ferris,
Sr. Vice President and General Counsel
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Exhibit 3.1
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Amended and Restated By-laws adopted March 6, 2014 by the Board of Directors.
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1.01
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Execution of Instruments
.
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1.02
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Corporate Seal
.
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1.03
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Voting Rights in Other Bodies Corporate
.
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1.04
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Financial Year
.
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1.05
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Prohibition on Lending.
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1.06
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Execution in Counterpart.
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2.01
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Borrowing Power
.
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(a)
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borrow money on the credit of the Corporation;
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(b)
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issue, reissue, sell, pledge or hypothecate debt obligations of the Corporation;
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(c)
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give a guarantee on behalf of the Corporation to secure performance of an obligation of any person or give, directly or indirectly, financial assistance to any person on behalf of the Corporation by means of a loan, guarantee or otherwise; and
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(d)
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mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.
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2.02
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Delegation
.
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3.01
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Number of Directors and Quorum
.
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3.02
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Meetings of the Board
.
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3.03
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Notice
.
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3.04
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Chairman of Board Meetings
.
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3.05
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Voting
.
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3.06
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Adjournment
.
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3.07
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Committees of the Board
.
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3.08
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Participation by Electronic Means
.
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3.09
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Written Resolution in Lieu of Meeting.
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4.01
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Participation in Meetings by Electronic Means
.
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4.02
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Annual Meetings.
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4.03
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Special Meetings.
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4.04
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Notice of Meeting and Special Business
.
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4.05
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Advance Notice Procedures for Business Brought Before a Meeting
.
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(a)
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At an annual meeting of the shareholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be: (i) brought before the meeting by the Corporation and specified in the notice of meeting given by or at the direction of the Board; (ii) brought before the meeting by or at the direction of the Board or any committee thereof; or (iii) otherwise properly brought before the meeting by a shareholder who (A) was a registered shareholder of the Corporation (and, with respect to any beneficial owner, if different, on whose behalf such business is proposed, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving the notice provided for in this Section 4.05 and at the time of the meeting; (B) is entitled to vote at the meeting; and (C) has complied with this Section 4.05 as to such business. Shareholders shall not be permitted to propose business to be brought before a special meeting of the shareholders, and the only matters that may be brought before a special meeting are the matters specified in the notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 4.04 of these By-Laws. Shareholders seeking to nominate persons for election to the Board must comply with Section 4.06 of these By-Laws, and this Section 4.05 shall not be applicable to nominations except as expressly provided in Section 4.06 of these By-Laws.
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(b)
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Without qualification, for business to be properly brought before an annual meeting by a shareholder, the shareholder must: (i) provide Annual Meeting Timely Notice thereof in writing and in proper form to the Secretary of the Corporation; and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 4.05, and any such proposed business must constitute a proper matter for shareholder action. In no event shall any adjournment or postponement of an annual meeting of shareholders or the announcement thereof commence a new time period for the giving of Annual Meeting Timely Notice.
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(c)
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To be in proper form for purposes of this Section 4.05, a shareholder's notice to the secretary shall set forth:
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(i)
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As to each item of business that the shareholder proposes to bring before the annual meeting: (A) a brief description of the business desired to be brought before the annual meeting of shareholders, the reasons for conducting such business at the annual meeting and any material interest in such business of each Proposing Person; (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the By-Laws of the Corporation, the language of the proposed amendment); and (C) a reasonably detailed description of all agreements, arrangements and understandings between or among any of the Proposing Persons or between or among any Proposing Person and any other person or entity (including their names) relating to the Corporation and/or the proposal of such business by such shareholder.
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(ii)
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All Shareholder Information as to each Proposing Person.
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(iii)
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All Disclosable Interests as to each Proposing Person.
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(d)
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A shareholder providing notice of business proposed to be brought before an annual meeting of shareholders shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 4.05 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of the record date for notice), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
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(e)
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Notwithstanding anything in these By-Laws to the contrary, no business (other than with respect to the election of directors) shall be conducted at an annual meeting except in accordance with this Section 4.05. The Chairman of the meeting shall have the power and duty to, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 4.05, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 4.05, unless otherwise required by law, if the proposing shareholder (or a qualified representative of the proposing shareholder) does not appear at the annual meeting of shareholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 4.05, to be considered a qualified representative of the proposing shareholder, a person must be a duly authorized officer, manager or partner of such shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the meeting of shareholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
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(f)
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This Section 4.05 is expressly intended to apply to any business proposed to be brought before an annual meeting of shareholders other than any proposal made pursuant to Rule 14a-8 promulgated under the Exchange Act. Nothing in this Section 4.05 shall be deemed to affect the rights of shareholders to request inclusion of proposals in the Corporation's proxy statement pursuant to the Act or Rule 14a-8 promulgated under the Exchange Act.
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(g)
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Notwithstanding the foregoing provisions of this Section 4.05, a shareholder shall also comply with all applicable requirements of the Act and the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 4.05; provided, however, that any references in these By-Laws to the Act, the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to proposals as to any other business to be considered pursuant to this Section 4.05, and compliance with this Section 4.05 shall be the exclusive means for a shareholder to submit other business to be considered at an annual meeting, other than business brought properly under and in compliance with the Act and Rule 14a-8 of the Exchange Act, as such may be amended from time to time.
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4.06
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Advance Notice of Nomination of Directors
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(a)
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Nominations of any person for election to the Board at an annual meeting or at a special meeting (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) may be made at such meeting only: (i) pursuant to the Corporation's notice of meeting (or any supplement thereto); (ii) by or at the direction of the Board, including by any committee or persons appointed by the Board; or (iii) by a shareholder who (A) was a registered shareholder of the Corporation (and, with respect to any beneficial owner, if different, on whose behalf such nomination is proposed to be made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving the notice provided for in this Section 4.06 and at the time of the meeting; (B) is entitled to vote at the meeting and upon such election; and (C) has timely complied with this Section 4.06 as to such nomination. The foregoing clause (iii) shall be the exclusive means for a shareholder to make any nomination of a person or persons for election to the Board to be considered by the shareholders at an annual meeting or special meeting of the shareholders of the Corporation.
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(b)
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Without qualification, for a shareholder to make any nomination of a person or persons for election to the Board at an annual meeting, the shareholder must: (i) provide Annual Meeting Timely Notice thereof in writing and in proper form to the Secretary of the Corporation; and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 4.06. Without qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling a special meeting, then for a shareholder to make any nomination of a person or persons for election to the Board at such special meeting, the shareholder must: (A) provide Special Meeting Timely Notice thereof in writing and in proper form to the secretary of the Corporation at the principal executive offices of the Corporation; and (B) provide any updates or supplements to such notice at the times and in the forms required by this Section 4.06. In no event shall any adjournment or postponement of an annual meeting or special meeting of the Shareholders of the Corporation. or the announcement thereof commence a new time period for the giving of a shareholder's notice as described above.
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(c)
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To be in proper form for purposes of this Section 4.06, a shareholder's notice to the secretary shall set forth:
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(i)
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All Shareholder Information as to each Proposing Person.
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(ii)
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All Disclosable Interests as to each Proposing Person.
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(iii)
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As to each Nominee, (A) the Nominee Information; (B) a completed and signed questionnaire, representation and agreement and resignation as provided in Section 4.06(f); and (C) all Disclosable Interests.
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(iv)
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The Corporation may require any Nominee to furnish such other information: (A) as may reasonably be required by the Corporation to determine the eligibility of such Nominee to serve as a director of the Corporation in accordance with the Corporation's corporate governance policies and guidelines adopted by the Board or a committee thereof; or (B) that could be material to a reasonable shareholder's understanding of the independence or lack of independence of such Nominee.
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(d)
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A shareholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 4.06 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of the record date for notice), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
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(e)
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Notwithstanding anything in these By-Laws to the contrary, no person shall be eligible for election as a director of the Corporation unless nominated in accordance with this Section 4.06. The Chairman at the meeting shall have the power and duty, if the facts warrant, to determine that a nomination was not properly made in accordance with this Section 4.06, and if he or she should so determine, he or she shall so declare such determination to the meeting and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 4.06, unless otherwise required by law, if the shareholder (or a qualified representative of the shareholder) does not appear at the meeting of shareholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 4.06, to be considered a qualified representative of the shareholder, a person must be a duly authorized officer, manager or partner of such shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the meeting of shareholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
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(f)
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To be eligible to be a Nominee, the Nominee must deliver (in accordance with the time periods prescribed for delivery of notice under this Section 4.06) to the Secretary of the Corporation at the principal executive offices of the Corporation: (i) a written questionnaire, in the form provided by the secretary upon written request, with respect to the background and qualifications of such person and of any other person or entity on whose behalf the nomination is being made; (ii) a written representation and agreement, in the form provided by the secretary upon written request, that such person: (A) is not, if serving as a director of the Corporation, and will not become, while serving as a director of the Corporation, a party to any agreement, arrangement or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity (y) as to how such person will act or vote on any issue or question to be considered by the Board that has not been disclosed therein; or (z) that could limit or interfere with such person's ability to comply with such person's fiduciary duties as a director of the Corporation under applicable law while serving as such; (B) is not and will not become a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation that has not been disclosed to the Corporation; (C) is, if serving as a director of the Corporation, or would be if elected as a director of the Corporation, and will be, while serving as such, in compliance with all applicable corporate governance, conflict of interest, confidentiality, securities ownership and trading policies and guidelines of the Corporation and any other policies applicable to directors; and (D) irrevocably submits his or her resignation as a director, if serving, or if elected, as a director of the Corporation, effective upon a finding by a court of competent jurisdiction that such person has breached such written representation and agreement; and (iii) a written letter, in the form provided by the secretary upon written request, pursuant to which such person irrevocably submits his or her resignation as a director, if serving, or if elected, as a director of the Corporation, effective upon such person's failure to be elected in an election of directors.
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(g)
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Notwithstanding the foregoing provisions of this Section 4.06, a shareholder shall also comply with all applicable requirements of the Act, the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 4.06; provided, however, that any references in these By-Laws to the Act, the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations to be considered pursuant to this Section 4.06, and compliance with this Section 4.06 shall be the exclusive means for a shareholder to make nominations.
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4.07
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Meeting Held by Electronic Means
.
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4.08
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Presiding Officer
.
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4.09
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Persons Entitled to be Present
.
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4.10
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Quorum
.
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4.11
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Scrutineers
.
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4.12
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Votes to Govern
.
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4.13
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Voting
.
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(a)
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Subject to the Act, every question submitted to any meeting of shareholders shall be decided on a show of hands, except when a ballot is required by the Chairman of the meeting or is demanded by a shareholder or proxyholder entitled to vote at the meeting. Upon a show of hands, at every meeting at which a person is entitled to vote, each shareholder present or deemed to be present, on his own behalf, and each proxyholder present or deemed to be present, shall (subject to the provisions, if any, of the Articles) have one vote for every share registered in the name of the shareholder present or represented by proxy. A declaration by the Chairman of the meeting that the question has been carried, 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 such fact, and the results of the vote so taken and declared shall be the decision of the shareholders upon the said question.
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(b)
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A shareholder or proxyholder may demand a ballot either before or on the declaration of the result of any vote by a show of hands. The ballot shall be taken in such manner as the Chairman of the meeting shall direct. Upon a ballot, at every meeting at which a person is entitled to vote, every shareholder present or deemed to be present, on his own behalf, and each proxyholder present or deemed to be present, shall (subject to the provisions, if any, of the Articles) have one vote for every share registered in the name of the shareholder present or represented by proxy, and the results of the ballot so taken and declared shall be the decision of the shareholders upon the said question.
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4.14
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Electronic Voting
.
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(a)
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Any person entitled to attend and vote at a meeting of shareholders may vote at the meeting in person or by proxy and, subject to any determinations made from time to time by the Board, may appoint a proxy by any method permitted by law, including over the internet, by the input of data using telephonic facilities or by reproduction using facsimile or electronic facilities.
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(b)
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To the extent permitted by the By-Laws or the Articles of the Corporation or by the Act or other laws governing the Corporation, the Board may establish, in connection with any meeting of shareholders, procedures regarding voting at the meeting by means of telephonic, electronic or other communication facilities, and make available such communication facilities consistent with those procedures. The Board may determine from time to time that the voting at any specific meeting shall be held entirely by such means.
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4.15
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Adjournments
.
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5.01
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Appointment
.
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5.02
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Chairman and Vice-Chairman
.
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5.03
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Chief Executive Officer
.
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5.04
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President
.
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5.05
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Chief Financial Officer
.
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5.06
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Chief Operating Officer
.
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5.07
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Vice-Presidents
.
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5.08
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Secretary
.
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5.09
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Treasurer
.
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5.10
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Duties of Officers may be Delegated
.
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5.11
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Term of Office
.
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6.01
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Remuneration of Directors, Officers and Employees
.
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7.01
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Creation and Consolidation of Divisions
.
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7.02
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Name of Division
.
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7.03
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Officers of Divisions
.
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8.01
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Limitation of Liability
.
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8.02
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Indemnity
.
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(h)
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To the fullest extent permitted by the Act and without limit to the right of the Corporation to indemnify any person under the Act or otherwise, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation or a person who acts or acted at the Corporation's request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and the director's or officer's heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the director or officer in respect of any civil, criminal or administrative action or proceeding to which the director or officer is made a party by reason of being or having been a director or officer of the Corporation or such other body corporate.
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(i)
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The Corporation shall, subject to the approval of a court and the limitations contained herein and in the Act, indemnify a person referred to in paragraph (a) in respect of an action by or on behalf of the Corporation or body corporate to procure a judgment in its favour, to which the person is made a party by reason of being or having been a director or officer of the Corporation or other body corporate as described in paragraph (a) against all costs, charges and expenses reasonably incurred by the person in connection with such action.
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(j)
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The Corporation shall advance moneys to a director or officer for the costs, charges and expenses of a proceeding referred to in paragraph (a) and/or (b), as applicable. Such director or officer shall repay such moneys if the director or officer:
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(i)
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is not substantially successful on the merits in the individual's defence of the action or proceeding; or
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(ii)
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is not fairly and reasonably entitled to indemnity.
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(k)
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The Corporation shall not indemnify a director or officer under paragraph (a) unless the individual:
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(i)
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acted honestly and in good faith with a view to the best interests of the Corporation, or, as the case may be, to the best interests of the other entity for which the director or officer acted as director or officer or in a similar capacity at the Corporation's request; and
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(ii)
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in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the director or officer had reasonable grounds for believing that the director's or officer's conduct was lawful.
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8.03
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Insurance
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8.04
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Indemnity Agreements
.
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8.05
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Division and Business Unit Officers
.
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9.01
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Shareholder Entitled to Certificate of Acknowledgement
.
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10.02
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Securities Registrars, Transfer Agents and Dividend Disbursing Agents
.
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10.03
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Deceased Shareholder
.
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10.04
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Lost, Defaced or Destroyed Certificates
.
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10.01
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Dividend
.
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10.02
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Joint Shareholders
.
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10.03
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Dividend Cheques
.
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10.04
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Non-receipt of Cheques
.
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10.05
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Unclaimed Dividends
.
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11.01
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Method of Giving Notices
.
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11.02
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Notice to Joint Shareholders
.
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11.03
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Computation of Time
.
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11.04
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Omissions and Errors
.
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11.05
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Persons Entitled by Death or Operation of Law
.
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12.01
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Definitions
.
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(a)
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"Act" means the
Business Corporations Act
(Alberta) and the regulations made thereunder and any statute and regulations that may be substituted therefor, as from time to time amended;
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(b)
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A person shall be deemed to be "Acting in Concert" with another person if such person knowingly acts (whether or not pursuant to an express agreement, arrangement or understanding) in concert with, or towards a common goal relating to the management, governance or control of the Corporation in parallel with, such other person where: (i) each person is conscious of the other person's conduct or intent and this awareness is an element in their decision-making processes; and (ii) at least one additional factor suggests that such persons intend to act in concert or in parallel; provided, however, that a person shall not be deemed to be Acting in Concert with any other person solely as a result of the solicitation or receipt of revocable proxies or consents from such other person in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a proxy or consent solicitation statement filed on Schedule 14A or pursuant to, or in accordance with, the proxy solicitation rules of any other applicable jurisdiction. A person Acting in Concert with another person shall be deemed to be Acting in Concert with any third party who is also Acting in Concert with such other person;
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(c)
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"affiliate" shall have the meaning given to such term in Rule 12b-2 promulgated under the Exchange Act;
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(d)
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"Annual Meeting Timely Notice" means a shareholder's notice that is delivered to, or mailed and received at, the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the one-year anniversary of the preceding year's annual meeting; provided, however, that in the event that no annual meeting was held the previous year or if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after the one-year anniversary date, notice by the shareholder to be timely must be so delivered, or mailed and received, not earlier than the close of business on the ninetieth (90th) day prior to such annual meeting and not later than the close of business on the later of (A) the sixtieth (60th) day prior to such annual meeting; or (B) the tenth (10th) day following the day on which Public Announcement of the date of such annual meeting was first made; provided, further, that, solely in the case of the first annual general meeting held following the adoption of these By-laws, such notice must be so delivered, or mailed and received, not later than the close of business on the fourteenth calendar day following the effective date of these By-laws;
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(e)
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"Articles" means the articles of the Corporation as from time to time amended or restated;
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(f)
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"associate" shall have the meaning given to such term in Rule 12b-2 promulgated under the Exchange Act;
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(g)
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"Board" means the board of directors of the Corporation;
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(h)
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"By-Laws" means these By-Laws and all other by-laws of the Corporation from time to time in force and effect;
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(i)
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"Corporation" means Tesco Corporation;
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(j)
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"Derivative Interests" means derivative securities (as defined under Rule 16a-1 promulgated under the Exchange Act or any successor provision thereto) and any derivative, swap or other transaction or series of transactions engaged in, directly or indirectly, by a Proposing Person or Nominee, the purpose or effect of which is to give such Proposing Person or Nominee economic risk and/or benefit similar to ownership of any security of the Corporation;
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(k)
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"Disclosable Interests" means the following disclosures as to each Proposing Person or Nominee, as applicable:
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(i)
|
a list and description of all economic terms of all Derivative Interests, Short Interests, Other Interests or Voting Agreements engaged in, entered into or held by, directly or indirectly, such Proposing Person or Nominee (which interests shall be disclosed without regard to whether (A) the interests convey any voting rights in the Corporation to such Proposing Person or Nominee; (B) the interests are required to be, or are capable of being, settled through delivery of securities of the Corporation; or (C) such Proposing Person or Nominee may have entered into other transactions that hedge or mitigate the economic effect of such interests), and copies of all agreements and other documents (including, without limitation, master agreements, confirmations and all ancillary documents and the names and details of counterparties to, and brokers involved in, all such transactions) relating to each such Derivative Interest, Short Interest, Other Interest or Voting Agreement;
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(ii)
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the name of each person with whom such Proposing Person or Nominee has a Voting Agreement;
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(iii)
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any rights to dividends on the shares of any class or series of shares of the Corporation owned beneficially by such Proposing Person or Nominee that are separated or separable from the underlying shares of the Corporation;
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(iv)
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a list of all transactions by such Proposing Person or Nominee involving any security of the Corporation or any Derivative Interests, Short Interests, Other Interests or Voting Agreements within the six-month period prior to the date of the notice;
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(v)
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(A) if such Proposing Person is not a natural person, the identity of the Responsible Person, the manner in which such Responsible Person was selected, any fiduciary duties owed by such Responsible Person to the equity holders or other beneficiaries of such Proposing Person, the qualifications and background of such Responsible Person and any material interests or relationships of such Responsible Person that are not shared generally by any other registered or beneficial holder of any security of the Corporation and that reasonably could have influenced the decision of such Proposing Person to propose such business to be brought before the meeting; and (B) if such Proposing Person is a natural person, the qualifications and background of such natural person and any material interests or relationships of such natural person that are not shared generally by any other registered or beneficial holder of any security of the Corporation and that reasonably could have influenced the decision of such Proposing Person to propose such business or nomination to be brought before the meeting;
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(vi)
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any significant equity interests or any Derivative Interests, Short Interests or Other Interests in any principal competitor of the Corporation held by such Proposing Person or Nominee;
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(vii)
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any direct or indirect interest of such Proposing Person or Nominee in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement);
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(viii)
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any pending or threatened litigation in which such Proposing Person or Nominee is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation;
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(ix)
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any material transaction occurring during the prior twelve (12) months between such Proposing Person or Nominee or any affiliate of the Proposing Person or Nominee, on the one hand, and the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation, on the other hand;
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(x)
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a summary of any material discussions regarding the proposed business or nomination (A) between or among any of the Proposing Persons; (B) between or among any Proposing Person and any Nominee; or (C) between or among any Proposing Person or Nominee and any other registered or beneficial holder of any security of the Corporation (including their names);
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(xi)
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a representation that the Proposing Person intends to appear in person or by proxy at the annual meeting to bring such business or nomination before the meeting; and
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(xii)
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any other information relating to such Proposing Person or the proposed business or nomination that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting or the nomination proposed to be made at a meeting pursuant to Section 14(a) of the Exchange Act.
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(l)
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"Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations);
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(m)
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"Nominee" means a person whom a Proposing Person proposes to nominate for election as a director and, in any context where disclosure or information about a Nominee is required by these By-Laws, any affiliate or associate of the person whom a Proposing Person proposes to nominate for election as a director;
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(n)
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"Nominee Information" means: (i) all information with respect to a Nominee that would be required to be set forth in a shareholder's notice pursuant to Section 4.06 if such Nominee were a Proposing Person; (ii) all information relating to such Nominee that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such Nominee's written consent to being named in the proxy statement as a Nominee and to serving as a director if elected); (iii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among any Proposing Person, on the one hand, and each Nominee, his or her respective affiliates and associates and any other persons with whom such proposed Nominee (or any of his or her respective affiliates and associates) is Acting in Concert, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K (or any amendments to successors thereto) if such Proposing Person were the "registrant" for purposes of such rule and the proposed Nominee were a director or executive officer of such registrant;
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(o)
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"Other Interests" means all other material interests of each Proposing Person or Nominee in any business or nomination proposed to be brought before a meeting, any security of the Corporation, Derivative Interests, Short Interests or Voting Agreements (including, without limitation, any rights to dividends or performance-related fees based on any increase or decrease in the value of such security, Derivative Interests or Short Interests);
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(p)
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"Proceeding" means any action, suit inquiry or proceeding, whether civil, criminal, administrative, regulatory or investigative;
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(q)
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"Proposing Person" means: (i) the registered shareholder providing the notice of business proposed to be brought before an annual meeting or the nomination proposed to be made at a meeting, as applicable; (ii) the beneficial owner or beneficial owners, if different than the registered shareholder, on whose behalf the notice of the business proposed to be brought before the annual meeting or the notice of the nomination proposed to be made at a meeting, as applicable is made; (iii) any affiliate or associate of such shareholder or beneficial owner; and (iv) any other person with whom such shareholder or beneficial owner (or any of their respective affiliates or associates) is Acting in Concert;
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(r)
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"Public Announcement" means disclosure in a press release reported by the Dow Jones News Service, Associated Press or other news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (or any successor provisions thereto) or, in Canada, with the System for Electronic Document Analysis and Retrieval (SEDAR);
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(s)
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"Recorded Address" means, in the case of a shareholder, the address as recorded in the securities register; 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 for such person as recorded in the records of the Corporation or, in the case of a director, in the last notice of directors filed under the Act;
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(t)
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"Responsible Person" means the natural person or persons associated with a Proposing Person that is not a natural person and who is responsible (in whole or in material part) for the formulation of and decision to: (i) propose the business to be brought before the meeting; or (ii) nominate a candidate for election as a director at the meeting;
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(u)
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"Short Interests" means any agreement, arrangement, understanding or relationship, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any security of the Corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person or Nominee with respect to any security of the Corporation, or which provides, directly or indirectly, the opportunity to profit from any decrease in the price or value of any security of the Corporation;
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(v)
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"Signing Officer" means, in relation to any contracts, instruments or documents, any person authorized to sign the same on behalf of the Corporation by Section 1.01 or by a resolution passed pursuant thereto;
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(w)
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"Shareholder Information" means, as to each Proposing Person: (i) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation's books and records); (ii) the class or series and number of shares of the Corporation that are, directly or indirectly, registered to or beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) by, such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future; (iii) a representation that the shareholder is a registered holder of shares of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination; and (iv) a certification that the shareholder or the beneficial owner, if any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding share capital required to approve the business proposal or nomination; and/or (B) otherwise to solicit proxies or votes from shareholders in support of such business proposal or nomination;
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(x)
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"Special Meeting Timely Notice" means a shareholder's notice for nominations to be made at a special meeting delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the close of business on the ninetieth (90th) day prior to such special meeting and not later than the close of business on the later of: (i) the sixtieth (60th) day prior to such special meeting; or (ii) the tenth (10th) day following the day on which Public Announcement of the date of such special meeting was first made; and
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(y)
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"Voting Agreement" means any agreement, arrangement or understanding (whether written or oral): (i) for the purposes of acquiring, holding, voting (except pursuant to a revocable proxy given to such person in response to a public proxy or consent solicitation made generally by such person to all holders of shares of the Corporation) or disposing of any shares of the Corporation; (ii) to cooperate in obtaining, changing or influencing the control of the Corporation (except independent financial, legal and other advisors acting in the ordinary course of their respective businesses); (iii) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, any such Proposing Person or Nominee with respect to any security of the Corporation or any business or nomination proposed by the Proposing Person; or (iv) otherwise in connection with any business or nomination proposed by a Proposing Person and a description of each such agreement, arrangement or understanding;
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12.02
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Construction
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13.01
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Effective Date
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13.02
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Repeal
.
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/s/ Michael W. Sutherlin
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/s/ Dean Ferris
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Michael W. Sutherlin
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Dean Ferris
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Chairman
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Secretary
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