By-law No. 1
A by-law relating generally to the conduct of the affairs of
SOFTWARE UNDERGROUND
(the "Society")
Table of contents
Section 1 - General
Section 2 - Membership – Matters Requiring Special Resolution
Section 3 - Membership Dues, Termination and Discipline
Section 4 - Meetings of Members
Section 5 - Directors
Section 6 - Meetings of Directors
Section 7 - Officers
Section 8 - Notices
Section 9 - Dispute Resolution
Section 10 - Effective Date
BE IT ENACTED as a by-law of the Society as follows:
Section 1 - General
1.01 Definitions
In this by-law and all other by-laws of the Society, unless the context otherwise requires:
"Act" means the Canada Not-for-profit Corporations Act S.C. 2009, c.23 including the Regulations made pursuant to the Act, and any statute or regulations that may be substituted, as amended from time to time;
"articles" means the original or restated articles of incorporation or articles of amendment, amalgamation, continuance, reorganization, arrangement or revival of the Society;
"board" means the board of directors of the Society and "director" means a member of the board;
"by-law" means this by-law and any other by-laws of the Society as amended and which are, from time to time, in force and effect;
"meeting of members" includes an annual meeting of members or a special meeting of members; "special meeting of members" includes a meeting of any class or classes of members and a special meeting of all members entitled to vote at an annual meeting of members;
"ordinary resolution" means a resolution passed by a majority (more than 50%) of the votes cast on that resolution;
"proposal" means a proposal submitted by a member of the Society that meets the requirements of section 163 (Shareholder Proposals) of the Act;
"Regulations" means the regulations made under the Act, as amended, restated or in effect from time to time; and
"special resolution" means a resolution passed by a majority of not less than two-thirds (2/3) of the votes cast on that resolution.
1.02 Interpretation
In the interpretation of this by-law, words in the singular include the plural and vice-versa, words in one gender include all genders, and "person" includes an individual, body corporate, partnership, trust and unincorporated organization.
Other than as specified in 1.01 above, words and expressions defined in the Act have the same meanings when used in these by-laws.
1.03 Execution of Documents
Deeds, transfers, assignments, contracts, obligations and other instruments in writing requiring execution by the Society may be signed by any two (2) of its officers or directors. In addition, the board may from time to time direct the manner in which and the person or persons by whom a particular document or type of document shall be executed. Any person authorized to sign any document may affix the corporate seal (if any) to the document. Any signing officer may certify a copy of any instrument, resolution, by-law or other document of the Society to be a true copy thereof.
1.04 Financial Year End
The financial year end of the Society shall be determined by the board of directors.
1.05 Banking Arrangements
The banking business of the Society shall be transacted at such bank, trust company or other firm or corporation carrying on a banking business in Canada or elsewhere as the board of directors may designate, appoint or authorize from time to time by resolution. The banking business or any part of it shall be transacted by an officer or officers of the Society and/or other persons as the board of directors may by resolution from time to time designate, direct or authorize.
1.06 Annual Financial Statements
The Society may, instead of sending copies of the annual financial statements and other documents referred to in subsection 172(1) (Annual Financial Statements) of the Act to the members, publish a notice to its members stating that the annual financial statements and documents provided in subsection 172(1) are available at the registered office of the Society and stored on a public digital repository.
Section 2 - Membership – Matters requiring special resolution
2.01 Membership Conditions
Subject to the articles, there shall be one class of members in the Society. Membership in the Society shall be available only to individuals interested in furthering the Society purposes and who have applied for and been accepted into membership in the Society by resolution of the board or in such other manner as may be determined by the board. Each member shall be entitled to receive notice of, attend and vote at all meetings of the members of the Society.
Qualifications for membership are as follows:
The member has read and agreed to abide by the Code of Conduct.
The member has read and agreed to be bound by the Terms and Conditions of membership, as published by the Society.
Pursuant to subsection 197(1) (Fundamental Change) of the Act, a special resolution of the members is required to make any amendments to this section of the by-laws if those amendments affect membership rights and/or conditions described in paragraphs 197(1)(e), (h), (l) or (m).
2.02 Notice of Meeting of Members
Notice of the time and place of a meeting of members shall be given to each member entitled to vote at the meeting by telephonic, electronic or other communication facility to each member entitled to vote at the meeting, during a period of 21 to 35 days before the day on which the meeting is to be held.
Pursuant to subsection 197(1) (Fundamental Change) of the Act, a special resolution of the members is required to make any amendment to the by-laws of the Society to change the manner of giving notice to members entitled to vote at a meeting of members.
Section 3 - Membership dues, termination and discipline
3.01 Membership Dues
Members shall be notified in writing of the membership dues at any time payable by them and, if any are not paid within one (1) calendar month of the membership renewal date, the members in default shall automatically cease to be members of the Society.
3.02 Termination of Membership
A membership in the Society is terminated when:
the member dies, or, in the case of a member that is a corporation, the corporation is dissolved;
a member fails to maintain any qualifications for membership described in Section 2.01 of these by-laws;
the member resigns by delivering a written resignation to the board of the Society in which case such resignation shall be effective on the date specified in the resignation;
the member is expelled in accordance with Section 3.03 below or is otherwise terminated in accordance with the articles or by-laws;
the member's term of membership expires; or
the Society is liquidated or dissolved under the Act.
Subject to the articles, upon any termination of membership, the rights of the member, including any rights in the property of the Society, automatically cease to exist.
3.03 Discipline of Members
The board shall have authority to suspend or expel any member from the Society for any one or more of the following grounds:
violating any provision of the articles, by-laws, code of conduct, or written policies of the Society;
carrying out any conduct which may be detrimental to the Society as determined by the board in its sole discretion;
for any other reason that the board in its sole and absolute discretion considers to be reasonable, having regard to the purpose of the Society.
In the event that the board determines that a member should be expelled or suspended from membership in the Society, the president, or such other officer as may be designated by the board, shall provide twenty (20) days notice of suspension or expulsion to the member and shall provide reasons for the proposed suspension or expulsion. The member may make written submissions to the president, or such other officer as may be designated by the board, in response to the notice received within such twenty (20) day period. In the event that no written submissions are received by the president, the president, or such other officer as may be designated by the board, may proceed to notify the member that the member is suspended or expelled from membership in the Society. If written submissions are received in accordance with this section, the board will consider such submissions in arriving at a final decision and shall notify the member concerning such final decision within a further twenty (20) days from the date of receipt of the submissions. The board's decision shall be final and binding on the member, without any further right of appeal.
Section 4 - Meetings of members
4.01 Persons Entitled to be Present
The only persons entitled to be present at a meeting of members shall be those entitled to vote at the meeting, the directors and the public accountant of the Society, and such other persons who are entitled or required under any provision of the Act, articles or by-laws of the Society to be present at the meeting. Any other person may be admitted only on the invitation of the chair of the meeting or by resolution of the members.
4.02 Chair of the Meeting
In the event that the chair of the board and the vice-chair of the board are absent, the members who are present and entitled to vote at the meeting shall choose one of their number to chair the meeting.
4.03 Quorum
A quorum at any meeting of the members (unless a greater number of members are required to be present by the Act) shall be 10% of the members entitled to vote at the meeting, or 11 members, whichever is the greater. If a quorum is present at the opening of a meeting of members, the members present may proceed with the business of the meeting even if a quorum is not present throughout the meeting.
4.04 Votes to Govern
Unless otherwise required by the Act or the articles of the Corporation, questions arising at any meeting of the members shall be decided by a consensus of the members present at the meeting. A consensus will be considered to have been reached when no member objects to the question on the floor before the meeting. Should the chair of the meeting determine, after a reasonable effort to achieve consensus has been made, that a consensus will not be reached regarding a particular question then the chair shall refer the question to be decided by a majority vote of the members ('majority' meaning 'more than half').
Section 5 - Directors
5.01 Election and Term
Subject to the articles, the members will elect the directors at the first meeting of members and at each succeeding annual meeting at which an election of directors is required, and the directors shall be elected to hold office for a term expiring not later than the close of the third annual meeting of members following the election.
The board of directors may appoint additional directors for a term expiring not later than the close of the next annual meeting of members but the total number of directors appointed may not exceed 1/3 of the number of directors elected at the previous annual meeting. The precise number of directors to be appointed in this manner may be fixed by ordinary resolution of the members.
In the event there is only one nomination for a place on the board, the board member may be elected by acclamation.
Section 6 - Meetings of directors
6.01 Calling of Meetings
Meetings of the board may be called by the chair of the board, the vice-chair of the board or any two (2) directors at any time.
6.02 Notice of Meeting
Notice of the time and place for the holding of a meeting of the board shall be given to every director of the Society not less than 7 days before the time when the meeting is to be held by one of the following methods:
by telephonic, electronic or other communication facility at the director's recorded address for that purpose; or
by an electronic document in accordance with Part 17 of the Act.
Notice of a meeting shall not be necessary if all of the directors are present, and none objects to the holding of the meeting, or if those absent have waived notice of or have otherwise signified their consent to the holding of such meeting. Notice of an adjourned meeting is not required if the time and place of the adjourned meeting is announced at the original meeting. Unless the by-law otherwise provides, no notice of meeting need specify the purpose or the business to be transacted at the meeting except that a notice of meeting of directors shall specify any matter referred to in subsection 138(2) (Limits on Authority) of the Act that is to be dealt with at the meeting.
6.03 Regular Meetings
The board may appoint a day or days in any month or months for regular meetings of the board at a place and hour to be named. A copy of any resolution of the board fixing the place and time of such regular meetings of the board shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except if subsection 136(3)(Notice of Meeting) of the Act requires the purpose thereof or the business to be transacted to be specified in the notice.
6.04 Votes to Govern
Unless otherwise required by the Act or the articles of the Corporation, questions arising at any meeting of the board shall be decided by a consensus of the directors present at the meeting. A consensus will be considered to have been reached when no director objects to the question on the floor before the meeting . Should the chair of the meeting determine, after a reasonable effort to achieve consensus has been made, that a consensus will not be reached regarding a particular question, then the chair shall refer the question to be decided by a majority vote of the directors. In that event, each director is authorized to exercise one vote.
6.05 Committees
The board may from time to time appoint any committee or other advisory body, as it deems necessary or appropriate for such purposes and, subject to the Act, with such powers as the board shall see fit. Any such committee may formulate its own rules of procedure, subject to such regulations or directions as the board may from time to time make. Any committee member may be removed by resolution of the board of directors.
Section 7 - Officers
7.01 Description of Offices
Unless otherwise specified by the board which may, subject to the Act modify, restrict or supplement such duties and powers, the offices of the Society, if designated and if officers are appointed, shall have the following duties and powers associated with their positions:
Chair of the Board - The chair of the board, if one is to be appointed, shall be a director. The chair of the board, if any, shall, when present, preside at all meetings of the board of directors and of the members. The chair shall have such other duties and powers as the board may specify.
Vice-Chair of the Board - The vice-chair of the board, if one is to be appointed, shall be a director. If the chair of the board is absent or is unable or refuses to act, the vice-chair of the board, if any, shall, when present, preside at all meetings of the board of directors and of the members. The vice-chair shall have such other duties and powers as the board may specify.
President – If appointed, the president shall be the chief executive officer of the Society and shall be responsible for implementing the strategic plans and policies of the Society. The president shall, subject to the authority of the board, have general supervision of the affairs of the Society.
Secretary – If appointed, the secretary shall attend and be the secretary of all meetings of the board, members and committees of the board. The secretary shall enter or cause to be entered in the Society's minute book, minutes of all proceedings at such meetings; the secretary shall give, or cause to be given, as and when instructed, notices to members, directors, the public accountant and members of committees; the secretary shall be the custodian of all books, papers, records, documents and other instruments belonging to the Society.
Treasurer - If appointed, the treasurer shall have such powers and duties as the board may specify.
The powers and duties of all other officers of the Society shall be such as the terms of their engagement call for or the board or president requires of them. The board may, from time to time and subject to the Act, vary, add to or limit the powers and duties of any officer.
7.02 Vacancy in Office
In the absence of a written agreement to the contrary, the board may remove, whether for cause or without cause, any officer of the Society. Unless so removed, an officer shall hold office until the earlier of:
the officer's successor being appointed,
the officer's resignation,
such officer ceasing to be a director (if a necessary qualification of appointment) or
such officer's death.
If the office of any officer of the Society shall be or become vacant, the directors may, by resolution, appoint a person to fill such vacancy.
Section 8 - Notices
8.01 Method of Giving Notices
Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served), other than notice of a meeting of members or a meeting of the board of directors, pursuant to the Act, the articles, the by-laws or otherwise to a member, director, officer or member of a committee of the board or to the public accountant shall be sufficiently given:
by telephonic, electronic or other communication facility at such person's recorded address for that purpose; or
if provided in the form of an electronic document in accordance with Part 17 of the Act.
A notice so sent by any means of transmitted or recorded communication shall be deemed to have been given when dispatched or delivered to the appropriate communication company or agency or its representative for dispatch. The secretary may change or cause to be changed the recorded address of any member, director, officer, public accountant or member of a committee of the board in accordance with any information believed by the secretary to be reliable. The declaration by the secretary that notice has been given pursuant to this by-law shall be sufficient and conclusive evidence of the giving of such notice. The signature of any director or officer of the Society to any notice or other document to be given by the Society may be written, stamped, type-written or printed or partly written, stamped, type-written or printed.
8.02 Invalidity of any provisions of this by-law
The invalidity or unenforceability of any provision of this by-law shall not affect the validity or enforceability of the remaining provisions of this by-law.
8.03 Omissions and Errors
The accidental omission to give any notice to any member, director, officer, member of a committee of the board or public accountant, or the non-receipt of any notice by any such person where the Society has provided notice in accordance with the by-laws or any error in any notice not affecting its substance shall not invalidate any action taken at any meeting to which the notice pertained or otherwise founded on such notice.
Section 9 - Dispute resolution
9.01 Mediation and Arbitration
Disputes or controversies among members, directors, officers, committee members, or volunteers of the Society are as much as possible to be resolved in accordance with mediation and/or arbitration as provided in Section 9.02 of this by-law.
9.02 Dispute Resolution Mechanism
In the event that a dispute or controversy among members, directors, officers, committee members or volunteers of the Society arising out of or related to the articles or by-laws, or out of any aspect of the operations of the Society is not resolved in private meetings between the parties, then without prejudice to or in any other way derogating from the rights of the members, directors, officers, committee members, employees or volunteers of the Society as set out in the articles, by-laws or the Act, and as an alternative to such person instituting a law suit or legal action, such dispute or controversy shall be settled by a process of dispute resolution as follows:
The dispute or controversy shall first be submitted to a panel of mediators whereby the one party appoints one mediator, the other party (or if applicable the board of the Society) appoints one mediator, and the two mediators so appointed jointly appoint a third mediator. The three mediators will then meet with the parties in question in an attempt to mediate a resolution between the parties.
The number of mediators may be reduced from three to one or two upon agreement of the parties.
If the parties are not successful in resolving the dispute through mediation, then the parties agree that the dispute shall be settled by arbitration before a single arbitrator, who shall not be any one of the mediators referred to above, in accordance with the provincial or territorial legislation governing domestic arbitrations in force in the province or territory where the registered office of the Society is situated or as otherwise agreed upon by the parties to the dispute. The parties agree that all proceedings relating to arbitration shall be kept confidential and there shall be no disclosure of any kind. The decision of the arbitrator shall be final and binding and shall not be subject to appeal on a question of fact, law or mixed fact and law.
All costs of the mediators appointed in accordance with this section shall be borne equally by the parties to the dispute or the controversy. All costs of the arbitrators appointed in accordance with this section shall be borne by such parties as may be determined by the arbitrators.
Section 10 - Effective date
10.01 Effective Date
Subject to matters requiring a special resolution, this by-law shall be effective when made by the board.
[NOT YET CERTIFIED to be By-Law No. 1 of the Society], as enacted by the directors of the Society by resolution on the 28 day of January, 2021 and [not yet confirmed by the members]