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Agreement between the Government of Canada and the Government of the United States of America for the Establishment of a Binational Educational Exchange Foundation [1999] CATSer 41 (15 November 1999)

E103340

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA FOR THE ESTABLISHMENT OF A BINATIONAL EDUCATIONAL EXCHANGE FOUNDATION

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA,

RECOGNIZING that a large number and variety of educational exchanges and visits are already carried out between the two countries,

DESIRING to continue these exchanges and visits as well as to develop a specific program whose principal objective is to encourage further mutual understanding between the peoples of Canada and of the United States of America through educational exchanges, and

CONSIDERING the mutual benefit derived from such programs and the desire of the two Governments to encourage additionally the financing and operating of such programs for the further strengthening of cooperative relations between the two countries,

HAVE AGREED as follows:

1. The purpose of this Agreement is to increase understanding between Canada and the United States of America by providing opportunities for educational exchanges between Canadian and American post-doctoral scholars as well as graduate students.

2. For that purpose a Foundation is established with juridical personality under Canadian law, known as the Foundation for Educational Exchange between Canada and the United States of America (hereinafter referred to as "the Foundation"). It shall be financed by funds contributed by the two Governments and by funds received from private sources in the two countries.

3. The Foundation shall enjoy autonomy of management and administration, subject to the provisions of this Agreement.

4. The Foundation, its assets and income shall be exempt from taxes to the extent provided by the Internal Revenue Code of the United States ("The Code") and the Canada-U.S. Income Tax Convention ("The Convention"). Contributions to the Foundation shall be deductible to the extent provided in the Code and the Convention.

The Foundation shall, for the purpose of this Agreement:

a) plan, adopt and carry out educational exchange programs in fields related to American studies in Canada, Canadian studies in the United States, or the relationship between the two countries;

b) develop a comprehensive proposal for Foundation programs each fiscal year detailing their scope for the following year, the academic areas of concentration, types of grants and similar general guidelines;

c) authorize the making of grants and the disbursement and the advancement of funds necessary for the carrying out of programs;

d) conduct an active fund-raising program, through the Executive Director and members of the Board, with the aim of providing not only on-going operating funds but also an endowment, the income from which would be devoted to the support of the purposes described in paragraph "a" of this Article. The members of the Board shall abide by the laws of the two Governments with regard to their participation in the solicitation and acceptance of donations;

e) acquire, hold and dispose of property in the name of the Foundation as its Board may consider necessary or desirable, provided, however, that the acquisition and disposal of any real property shall be subject to the prior approval of the two Governments;

f) administer or assist in administering or otherwise facilitate the implementation of educational exchange programs that contribute to achieving the purposes of this Agreement but are not financed by funds made available under the Agreement, provided that no objection is interposed by either Government to the Foundation's role therein. Such programs and the Foundation's role therein shall be fully described in the annual or special reports referred to in Article VII, paragraph 1; and,

g) prepare all documents in English and in French.

The Foundation shall, for the purpose of this Agreement:

a) prepare each year an announcement of and application instructions for a national public competition in Canada setting forth the details of the program for a particular year, including procedures for the distribution and submission of applications to the Foundation for consideration by its Board and/or review bodies which it may designate; and,

b) transmit to the appropriate universities and other institutions of higher learning in Canada the nominations of candidates who are citizens or nationals of the United States of America for studies, research, instruction and other educational activities in Canada; these nominations shall be made on the basis of a national, public competition in the United States organized by agencies authorized for this purpose.

The Foundation shall, for the purpose of this Agreement:

a) recommend to the J. William Fulbright Foreign Scholarship Board students, trainees, scholars, teachers, instructors and professors who are citizens or nationals of Canada for participation in programs as it may deem necessary for achieving the purposes of this Agreement; and

b) in the budgeting and accounting of funds and in financial reporting to the United States Government, follow the Manual for Binational Commissions, originally prepared by the United States Information Agency.

1. The principal office of the Foundation shall be in Ottawa.

2. The Foundation shall be governed by a Board consisting of twenty members, ten of whom shall be citizens or nationals of the United States of America and ten of whom shall be citizens or nationals of Canada.

3. A Chairperson shall be elected by the Board from its own membership for a period of service of one year, provided that the Chair shall be assumed, alternately by an American and a Canadian member. Other officers shall be elected by and from the Board to include, at a minimum, a Treasurer.

4. Each member of the Board shall have one vote, except as qualified in paragraph 5 below. Decisions of the Board shall be made by a majority of the votes cast. The Chairperson shall cast a second and deciding vote in the event of a tie vote by the Board.

5. The Ambassador or the Chargé d'Affaires a.i. of the United States of America to Canada shall be an ex-officio, non-voting member of the Board. If the Ambassador is unable to attend a given board meeting, he/she may appoint a representative. The other nine American members shall be appointed and may be removed by the Ambassador or Chargé d'Affaires a.i. of the United States of America to Canada. At least one of the other nine American members shall be an officer of the diplomatic mission of the United States of America to Canada. The Ambassador or the Chargé d'Affaires a.i. of Canada to the United States of America shall be an ex officio, non-voting member. If the Ambassador is unable to attend a given board meeting, he/she may appoint a representative. The other nine Canadian members shall be appointed and may be removed by the Minister of Foreign Affairs. At least one of the other nine Canadian members shall be an official of the Government of Canada. The remaining members of the Board shall be drawn from the educational, corporate, and professional communities in the two countries.

6. The non-governmental members shall be appointed for three year terms and shall be eligible for reappointment. However, no member shall serve for more than six consecutive years. Terms shall commence on January 1 and end on December 31. Vacancies by reason of resignation, expiration of service or otherwise, shall be filled in accordance with the preceding paragraph for the balance of the term remaining.

7. The members shall serve without compensation, but the Board may defray the necessary expenses of the members in attending the meetings of the Foundation and in performing other official duties arranged by the Board.

8. The members shall engage in fund raising and program development to increase the number and diversity of Canada-U.S. Fulbright exchange opportunities. Priorities for board members include raising money to support Fulbright awards and other exchange program activities of the Foundation, promoting the U.S.-Canada Fulbright program, extending the recognition of the Fulbright program, and expanding the impact of educational exchange between Canada and the United States. The members shall abide by the laws of the two Governments with regard to their participation in the solicitation and acceptance of donations.

1. The Board shall engage an Executive Director, and an administrative and clerical staff, fix and pay the salaries and wages thereof, and incur such other expenses as may be necessary for the administration of the Foundation.

2. The Board shall engage such by-laws and appoint committees as it may deem necessary for the conduct of the affairs of the Foundation.

3. Meetings of the Board shall be held two times each year, once in Canada and once in the United States. Board meetings may be held in Washington and Ottawa, but the Board shall also meet to fulfill its fund raising and program development goals in other locations in Canada and the United States. Committees of the Board may meet, if required, but most committee transactions shall be accomplished by conference call.

4. Robert's Rules of Order shall govern the proceedings of the Board.

1. Annual program and financial reports shall be made on the Foundation's activities to the two Governments. Such annual reports shall be made in such form, and cover such content, as may be required by the two Governments. Special reports may be made at the discretion of the Foundation or at the request of either Government.

2. Periodic audits of the accounts of the Foundation to be made by an auditor selected jointly by the Board shall be submitted to the two Governments. If so requested by either or both Governments, the Foundation shall also permit auditing of its accounts by representatives of either or both Governments.

3. The Board shall submit its annual program proposal as described in Article II, paragraph "b" to the two Governments for review and approval.

4. The two Governments shall, within the limits of their respective budgetary appropriations for this purpose and taking into account funds donated by other sources or income therefrom, make contributions to the Foundation. The use of contributions from both Governments shall be for purposes authorized by their respective laws.

5. All commitments, obligations and expenditures to be authorized by the Board shall be subject to the annual budget of the Foundation.

The two Governments shall make every effort to facilitate the work of the Foundation within the terms of the Agreement.

1. This Agreement shall enter into force upon signature and shall remain in force for ten years. It may be extended for additional 10-year periods pursuant to written agreement between the Governments. The Foundation shall exist for as long as the Agreement remains in force.

2. This Agreement may be amended by the exchange of diplomatic notes between the Governments.

3. Either Government may give written notice to the other of its intention to terminate this Agreement, in which case the Agreement shall terminate thirty (30) days after the end of the first calendar year that begins following the date of such notice; but such notice shall not extend the ten-year period, if termination would otherwise occur.

4. Upon termination of the Agreement, funds and property of the Foundation remaining after the return of private unexpended contributions to private donors shall be divided between the two Governments in proportion to their respective contributions to the Foundation, and become the property of the Governments, subject to such conditions, limitations and liabilities as may have been imposed thereon prior to the termination of the Agreement.

5. The Agreement between the Government of Canada and the Government of the United States of America for the Establishment of a Binational Educational Exchange Foundation, signed on February 13, 1990, is hereby superceded on the date this Agreement enters into Force.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

DONE at Washington, D.C., this 15^th day of November 1999, in duplicate, in the English and French languages, both texts being equally authentic.

Raymond Chrétien

FOR THE GOVERNMENT OF CANADA

Gordon G. Giffin

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

FOUNDATION FOR EDUCATIONAL EXCHANGE BETWEEN CANADA AND THE UNITED STATES OF AMERICA

BYLAWS

ARTICLE 1

General

1. The purpose of this Foundation is to increase understanding between Canada and the United States of America by providing opportunities for educational exchanges for Canadian and American post-doctoral scholars as well as graduate students and to facilitate communications to foster better understanding between the two countries.

2. The members of the Foundation are those persons who from time to time hold office as directors of the Foundation, provided that any person who ceases to be a director of the Foundation shall automatically cease to be a member.

3. All references to members of the Board, Board members, directors and members in these bylaws shall be read in light of the fact that the same persons are both the directors and members of the Foundation.

ARTICLE 2

Scope of Activities

1. The Foundation shall:

a) plan, adopt and carry out educational exchange programs in fields related to Canadian Studies in the United States, American Studies in Canada, or the relationship between the two countries;

b) develop a comprehensive proposal for Foundation programs each fiscal year detailing their scope, the academic areas of concentration, types of grants and similar general guidelines;

c) authorize the making of grants and the disbursement and the advancement of funds necessary for the carrying out of programs;

d) Conduct an active fund-raising program, through the staff and the members of the Board, with the aim of providing not only on-going operating funds but also an endowment, the income from which would be devoted to the support of the purposes described in paragraph (a) of this Article;

e) acquire, hold and dispose of property in the name of the Foundation as the Board may consider necessary or desirable; and,

f) administer or assist in administering or otherwise facilitate the implementation of educational exchange programs and communications that contribute to achieving the purpose of the Foundation as stated in Article I.

ARTICLE 3

The Board of Directors

1. The Foundation shall be governed by a Board of Directors consisting of twenty members, ten of whom will be citizens or nationals of the United States of America and ten of whom will be citizens or nationals of Canada.

2. Be recommended for membership/directorship by the Minister of Foreign Affairs and shall be appointed by the Board for three year terms. Such Canadian members/directors may be removed by a vote of the majority of the Canadian members/directors of the Board present at the Board meeting.

3. All subsequent American members/directors shall be appointed by the Ambassador, or the Charge d'Affaires a.i., of the United States to Canada for three year terms and may be removed by the Ambassador, or Charge d'Affaires a.i., of the United States to Canada.

4. a) No member/director shall serve for more than six consecutive years. Terms (other than those of the initial members/directors) will commence on January 1 and end on December 31.

b) A member may resign prior to the end of his or her term by presenting a written notice to the Chair. Such resignation will take effect upon that date, being not later than two months from the receipt by the Chair of such written notice, as is designated by the resigning member.

5. Members of the Board will be drawn from the educational, corporate and professional communities in the two countries.

6. Each member of the Board shall have one vote, except for the ex-officio members. Decisions of the Board shall be made by a majority of the votes cast. The Chair shall cast a second and deciding vote in the event of a tie vote by the Board.

7. The Board shall meet at least twice a year: one meeting during October or November and another during March or April. Additional meetings may be held at the call of the Chair or a majority of the Board members. Meetings shall be held in Ottawa or in such other places as the Board or the Executive Committee shall determine. Subject to the bylaws, a director may, if all the directors of the corporation consent, participate in a meeting of directors by means of such telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed for the purposes of this Act to be present at that meeting. Not less than fourteen days' notice shall be given for each meeting of the Board unless the members unanimously agree upon some shorter notice period.

8. The presence of five Canadian members and five American members shall constitute a quorum at meetings of the directors.

9. Agendas and reference material for each meeting shall be sent to all members in a timely fashion such that they would in the normal course of transmission reach the member at a minimum of three working days before the meeting. A draft of the minutes of each meeting will be sent to each member within two weeks following the meeting. Each member shall submit any requests for changes, corrections, additions and deletions within two months following the meeting.

10. a) On the occasion of the first meeting of the Board following receipt of the audited financial statements of the Foundation, there shall be held in conjunction therewith the annual meeting of members. Additional meetings may be held at the call of the Chair or a majority of the Board members. Meetings shall be held in Ottawa or in such other places as the Board or the Executive Committee shall determine. Not less than fourteen days' notice shall be given for each meeting of the members unless the members unanimously agree upon some shorter notice period. Notice of any meeting of members where special business will be transacted should contain sufficient information to permit the member to form a reasoned judgment on the decision to be taken. Notice of each meeting of members must remind the member that he has the right to vote by proxy. Each member present at a meeting shall have the right to exercise one vote, except for the ex-officio members. A member may, by way of a written proxy, appoint a proxyholder to attend and act at a specific meeting of members, in the manner and to the extent authorized by the proxy. A proxyholder must be a member of the corporation.

b) The presence of five Canadian members and five American members shall constitute a quorum at meetings of the members.

c) The Chair of the Foundation shall serve as Chair of the meeting unless such person is temporarily unable to serve or has resigned, in which case the Secretary shall serve in his or her stead until a replacement is elected or the Chair has returned. In the event the Secretary is unable to serve, the members shall name a replacement from among their number. At every annual meeting, in addition to any other business that may be transacted, the financial statements and the report of the auditors shall be presented, and auditors appointed for the ensuing year by the members.

d) At the Board meeting held in conjunction with the annual meeting of members, the Board shall elect its officers, namely a Chair, a Treasurer and a Secretary from among its number to hold office until the next Board meeting held in conjunction with an annual meeting of members; provided that the Chair shall be assumed alternately by an American and a Canadian member. The Board may remove any such officer so elected. Such officer shall serve without remuneration. In the event the Chair is temporarily unable to serve or has resigned, the Secretary shall serve in his or her stead until a replacement is elected or the Chair has returned. In the event the Secretary is unable to serve, the Board shall name a replacement from among its number.

11. a) The Chair, Secretary and Treasurer shall form an Executive Committee which shall be responsible for conducting the day-to-day business of the Foundation between regular meetings of the Board, provided that all such actions of the Executive Committee shall be subject to ratification by the Board of Directors at its regular meetings. Meetings of the Executive Committee shall be held in Ottawa or in such other places as the Executive Committee shall determine. Subject to the by-laws, a member of the Executive Committee may, if all the members of the Executive Committee of the corporation consent, participate in a meeting of members of the Executive Committee or of a committee of members of the Executive Committee by means of such telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a member of the Executive Committee participating in such a meeting by such means is deemed for the purposes of this Act to be present at that meeting. Not less than seven days' notice shall be given for each meeting of the Executive Committee and Notices sent by mail shall be sent at least fourteen days prior to the meeting, unless the members unanimously agree upon some shorter period. A quorum of the Executive Committee shall be two. The members of such Executive Committee may be removed by the Board and shall serve without remuneration.

b) The Board may delegate to the Executive Committee such of its powers under these bylaws as the Board may from time to time see fit with the exception of those powers that must by virtue of the provisions of the Canada Corporations Act be exercised by the members of the Foundation.

12. In addition to the Executive Committee, the Board may create standing committees for Programs, Administration and Candidate Screening and for such other functions as the Board deems necessary. Non-members may be appointed to serve on such committees (other than the Executive Committee) provided that attention is paid to appropriate professional and binational balance. The members of such standing committees may be removed by the Board and shall serve without remuneration.

13. In addition to any other insurance that may be usual for a foundation of similar kind and purpose, the Foundation may purchase and maintain insurance for the benefit of any member, Board member, committee member, officer or employee of the Foundation against liability incurred by that person in the carrying out of his or her duties.

ARTICLE 4

Implementation

The Board shall:

a) carry out the activities of the Foundation as stated in Article II;

b) prepare each year an announcement of and application instructions for national public competitions in Canada and the United States setting forth the details of the program for a particular year, including procedures for the distribution and submission of applications to the Foundation for consideration by its Board and/or review bodies which it shall designate;

c) transmit to the appropriate universities and other institutions of higher learning in Canada the nominations of candidates who are citizens or nationals of the United States of America for studies, research, instruction and other educational activities in Canada; these nominations shall be made on the basis of a national, public competition in the United States organized by agencies authorized for this purpose by the Foundation; and

d) transmit to the J. William Fulbright Fund Scholarship Board the nominations of candidates who are citizens or nationals of Canada for studies, research, instruction and other educational activities in the United States; these nominations shall be made on the basis of a national, public competition in Canada organized by agencies authorized for this purpose by the Foundation.

ARTICLE 5

Administration and Reporting

1. a) The Board shall engage an Executive Director, fix and pay his or her salary and wages, and set out the terms and conditions of his or her employment. The Board may delegate to the Executive Director such of its powers under these Bylaws, assign to the Executive Director such duties, and grant to the Executive Director such signing authority for banking and other purposes, as the Board may from time to time see fit.

b) The Board may engage administrative and clerical staff, fix and pay the salaries and wages thereof, set out the terms and conditions of employment and assign such duties as the Board may see fit.

c) The Board may incur such other expenses as may be necessary for the proper administration of the Foundation.

2. Members of the Board shall serve without compensation, but the Board shall defray the necessary expenses of the members in attending the meetings of the Board and its committees and in performing other official duties arranged by the Board.

3. Subject to the provisions of Article III, paragraph 11, periodic audits of the accounts of the Foundation shall be made by an independent auditor chosen by a majority of the members at the annual meeting. All audits so prepared will be presented to the members for review and consideration.

4. Periodic audits of the accounts of the Foundation to be made by the auditor selected by the Board of Directors will be submitted to the two Governments. If so requested by either or both Governments, the Foundation will also permit auditing of its accounts by representatives of either or both Governments.

5. The Foundation's fiscal year shall run from October 1 to September 30.

6. All actions of the Foundation shall be taken without regard to race, religion, creed, color, sex, national or ethnic origin, sexual orientation or disability.

7. The corporate seal shall be kept at Ottawa and shall be used by the Chair, the Secretary and the Treasurer or by a person designated by any of them.

ARTICLE 6

Responsibilities of Officers

1. Chair: Acting on behalf of the Board, the Chair will:

a) Preside at all regular and special meetings of the Board;

b) Announce the business before the Board in its proper order, state and put all questions properly brought before the Board, preserve order and decide all questions of order;

c) Call Board meetings and ensure all necessary material is distributed in advance to Board members as provided in these bylaws;

d) Represent the Board in public and before other such organizations, committees and boards as the Board shall so designate; and,

e) Undertake such other duties as may be requested by the Board.

2. Treasurer: Acting on behalf of the Board, the Treasurer will:

a) Ensure that controls are established to safeguard Foundation funds;

b) Receive funds for deposit in Foundation accounts;

c) Approve cheques in amounts greater than a sum to be fixed from time to time by the Board for the disbursement of Foundation funds based on vouchers which are certified for payment by the Executive Director or an authorized member of the Board after review to ensure that vouchers and cheques are in proper form and the amount being paid is reasonable, provided that the Board may authorize one or more of the other officers to approve such cheques and to conduct such reviews in the absence of the Treasurer;

d) Review Foundation quarterly financial reports to ensure that they reflect the Foundation's financial operation and approve them;

e) Serve as action officer on recommendations made by the independent auditor appointed by the members to review Foundation financial and management operations; and,

f) Undertake such other duties as may be requested by the Board.

3. Secretary: Acting on behalf of the Board, the Secretary will:

a) Keep a record of all the proceedings of the Board including, but not limited to, all action items passed by the Board;

b) Maintain archives of all Foundation business, reports, memoranda, letters, etc;

c) Conduct the necessary and proper correspondence of the Board;

d) Be custodian of the seal of the Foundation which he or she shall deliver only when authorized by Resolution of the Board to do so to such person or persons as may be named in the Resolution; and,

e) Undertake such other duties as may be requested by the Board.

4. a) For all purposes of the Foundation, the Chair shall have signing authority.

b) The Chair may delegate such authority in whole or in part to the Secretary, the Treasurer or the Executive Director or to any two of them acting together.

ARTICLE 7

Amendments

The Bylaws may be amended or repealed by an affirmative vote of at least two-thirds (2/3) of the members duly called for the purpose of considering the said Bylaw, provided that the repeal or amendment of such Bylaw shall not be enforced or acted upon until the approval of the Minister of Industry Canada has been obtained.