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By-Law amendmnent
Forbes & Manhattan Coal Corp.
(Registration number: 002116278)
(External company registration number: 2011/011661/10)
Share code on the Toronto Stock Exchange: FMC
Share code on the JSE Limited: FMC
ISIN: CA3451171050
(“Forbes Coal” or “the Company”
BY-LAW AMENDMENT
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of FORBES &
MANHATTAN COAL CORP. (hereinafter called the “Corporation”) as
follows:
ADVANCE NOTICE OF NOMINATIONS OF DIRECTORS
1. General By-law No. 3 of the by-laws of the Corporation is
hereby amended by adding the following thereto as Section 3A:
Nomination of Directors. – Subject only to the Business
Corporations Act (Ontario) (the “Act”) and the articles of the
Corporation (the “Articles”), 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 if one
of the purposes for which the special meeting was called was the
election of directors, (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 3A 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 3A:
(i) In addition to any other applicable requirements, for a
nomination to be made by a Nominating Shareholder, the
Nominating Shareholder must have given 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 3A.
(ii) To be timely, a Nominating Shareholder’s 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 50 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
close of business on 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 close of business on the fifteenth
(15th) day following the day on which the first public
announcement of the date of the special meeting of shareholders
was made. 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 Shareholder’s
notice as described above.
(iii) To be in proper written form, a Nominating
Shareholder’s notice to the secretary of the Corporation 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 publicly
available and shall have occurred) and as of the date of such
notice, and (iv) any other information relating to the person
that would be required to be disclosed in a dissident’s 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, any proxy, contract, arrangement, understanding or
relationship pursuant to which such Nominating Shareholder has a
right to vote any shares of the Corporation and any other
information relating to such Nominating Shareholder that would
be required to be made in a dissident’s proxy circular in
connection with solicitations of proxies for election of
directors pursuant to the Act and Applicable Securities Laws.
The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed
nominee to serve as an independent director of the Corporation
or that could be material to a reasonable shareholder’s
understanding of the independence, or lack thereof, of such
proposed nominee.
(iv) No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the
provisions of this Section 3A; provided, however, that nothing
in this Section 3A 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 chairman 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.
(v) For purposes of this Section 3A, (i) “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 under its profile on the System of Electronic
Document Analysis and Retrieval at www.sedar.com; and (ii)
“Applicable Securities Laws” means the applicable Securities Act
of each relevant province and territory 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 commission and similar regulatory
authority of each province and territory of Canada.
(vi) Notwithstanding any other provision of General By-law
No. 1, notice given to the secretary of the Corporation
pursuant to this Section 3A may only be given by personal
delivery, facsimile transmission or by email (at such email
address as stipulated from time to time by the secretary of the
Corporation for purposes of this notice), 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 (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.
(vii) Notwithstanding the foregoing, the Board may, in its
sole discretion, waive any requirement in this Section 3A.
General By-law No. 1, as amended from time to time, of the by-
laws of the Corporation and this by-law shall be read together
and shall have effect, so far as practicable, as though all the
provisions thereof were contained in one by-law of the
Corporation. All terms contained in this by-law which are
defined in General By-law No. 1, as amended from time to time,
of the by-laws of the Corporation shall, for all purposes
hereof, have the meanings given to such terms in the said
General By-law No. 1 unless expressly stated otherwise or the
context otherwise requires.
16 July 2013
Johannesburg
Sponsor
Sasfin Capital (a division of Sasfin Bank Limited)
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