BYE-LAWS
OF
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
(first adopted pursuant to a written resolution of the sole member passed
on July 12, 1994 and amended at annual general meeting of 2nd May, 1997)
I N D E X
SUBJECT BYE-LAW NO.
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Interpretation 1-2
Share Capital 3
Alteration Of Capital 4-7
Share Rights 8-9A
Variation Of Rights 10-11
Shares 12-15
Shares Certificates 16-21
Lien 22-24
Calls On Shares 25-33
Forfeiture Of Shares 34-42
Register Of Members 43-44
Record Dates 45
Transfer Of Shares 46-51
Transmission Of Shares 52-54
Untraceable Members 55
General Meetings 56-58
Notice Of General Meetings 59-60
Proceedings At General Meetings 61-65
Voting 66-77
Proxies 78-83
Corporations Acting By Representatives 84
Written Resolutions Of Members 85
Board Of Directors 86
Retirement Of Directors 87-88
Disqualification Of Directors 89
Executive Directors and Committee 90-91A
Alternate Directors 92-95
Directors' Fees And Expenses 96-99
Directors' and Officers' Interests 100-103
General Powers Of The Directors 104-109
Borrowing Powers 110-113
Proceedings Of The Directors 114-123
Managers 124-126
Officers 127-131
Register of Directors and Officers 132
Minutes 133
Seal 134
Authentication Of Documents 135
Destruction Of Documents 136
Dividends And Other Payments 137-146
Reserves 147
Capitalisation 148-149
Subscription Rights Reserve 150
Accounting Records 151-153
Audit 154-159
Notices 160-162
Signatures 163
Winding Up 164-165
Indemnity 166
Alteration Of Bye-laws And Amendment
To Memorandum of Association 167
Information 168
INTERPRETATION
1. In these Bye-laws, unless the context otherwise requires, the words standing
in the first column of the following table shall bear the meaning set opposite
them respectively in the second column.
WORD MEANING
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"Act" The Companies Act 1981 of Bermuda, as amended from time
to time.
"Auditor" the auditor of the Company for the time being and may
include any individual or partnership.
"Bye-laws" these Bye-laws in their present form or as supplemented
or amended or substituted from time to time.
"Board" or the Board of Directors of the Company or
"Directors" the Directors present at a meeting of Directors at which
a quorum is present.
"capital" the share capital from time to time of the Company.
"clear days" in relation to the period of a notice that period
excluding the day when the notice is given or deemed to
be given and the day for which it is given or on which
it is to take effect.
"clearing house" a clearing house recognised by the laws of the
jurisdiction in which the shares of the Company are
listed or quoted on a stock exchange in such
jurisdiction.
"Company" Central European Media Enterprises Ltd.
"competent" a competent regulatory authority in the territory where
regulatory the shares of the Company are listed or quoted on a
authority" stock exchange in such territory.
"debenture" and include debenture stock and debenture stockholder
"debenture holder" respectively.
"Designated Stock a stock exchange which is an appointed stock exchange
Exchange" for the purposes of the Act in respect of which the
shares of the Company are listed or quoted and where
such appointed stock exchange deems such listing or
quotation to be the primary listing or quotation of the
shares of the Company.
"dollars" and "$" dollars, the legal currency of the United States of
America.
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"head office" such office of the Company as the Directors may from
time to time determine to be the principal office of the
Company.
"Immediate Family" with respect to any individual, such individual's
spouse, descendants (natural or adoptive), grandparents,
parents, siblings of the whole or half blood.
"Member" a duly registered holder from time to time of the shares
in the capital of the Company.
"month" a calendar month.
"Notice" written notice unless otherwise specifically stated and
as further defined in these Bye-laws.
"Office" the registered office of the Company for the time being.
"paid up" paid up or credited as paid up.
"Register" the principal register and where applicable, any branch
register of Members of the Company to be kept pursuant
to the provisions of the Act.
"Registration Office" in respect of any class of share capital such place as
the Board may from time to time determine to keep a
branch register of Members in respect of that class of
share capital and where (except in cases where the Board
otherwise directs) the transfers or other documents of
title for such class of share capital are to be lodged
for registration and are to be registered.
"Seal" common seal or any one or more duplicate seals of the
Company (including a securities seal) for use in Bermuda
or in any place outside Bermuda.
"Secretary" any person firm or corporation appointed by the Board to
perform any of the duties of secretary of the Company
and includes any assistant, deputy, temporary or acting
secretary.
"Statutes" the Act and every other act of the Legislature of
Bermuda for the time being in force applying to or
affecting the Company, its memorandum of association
and/or these Bye-laws.
"year" a calendar year.
2. In these Bye-laws, unless there be something within the subject or context
inconsistent with such construction:
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(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include every gender;
(c) words importing persons include companies, associations and bodies of
persons whether corporate or not;
(d) the words:
(i) "may" shall be construed as permissive;
(ii) "shall" or "will" shall be construed as imperative;
(e) expressions referring to writing shall, unless the contrary intention
appears, be construed as including printing, lithography, photography
and other modes of representing words or figures in a visible form;
(f) references to any act, ordinance, statute or statutory provision shall
be interpreted as relating to any statutory modification or
re-enactment thereof for the time being in force;
(g) save as aforesaid words and expressions defined in the Statutes shall
bear the same meanings in these Bye-laws if not inconsistent with the
subject in the context;
(h) a resolution shall be a special resolution when it has been passed by a
majority of not less than three-fourths of votes cast by such Members
as, being entitled so to do, vote in person or, in the case of such
Members as are corporations, by their respective duly authorised
representative or, where proxies are allowed, by proxy at a general
meeting of which not less than twenty-one (21) clear days' notice,
specifying (without prejudice to the power contained in these Bye-laws
to amend the same) the intention to propose the resolution as a special
resolution, has been duly given. Provided that, except in the case of
an annual general meeting, if it is so agreed by a majority in number
of the Members having the right to attend and vote at any such meeting,
being a majority together holding not less than ninety-five (95) per
cent. in nominal value of the shares giving that right, a resolution
may be proposed and passed as a special resolution at a meeting of
which less than twenty-one (21) clear days' Notice has been given;
(i) a resolution shall be an ordinary resolution when it has been passed by
a simple majority of votes cast by such Members as, being entitled so
to do, vote in person or, in the case of any Member being a
corporation, by its duly authorised representative or, where proxies
are allowed, by proxy at a general meeting of which not less than
fourteen (14) clear days' Notice has been duly given;
(j) a special resolution shall be effective for any purpose for which an
ordinary resolution is expressed to be required under any provision of
these Bye-laws or the Statutes.
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SHARE CAPITAL
3. (1) The capital of the Company shall be divided into three classes of shares,
namely:
(a) 100,000,000 Shares of Class A Common Stock, par value $.01 per share
("Class A Shares");
(b) 15,000,000 Shares of Class B Common Stock, par value $.01 per share
("Class B Shares"); and
(c) 5,000,000 Shares of Preferred Stock, par value$.01 per share
("Preferred Shares").
The Class A shares and the Class B Shares are together referred to as
the "Common Shares".
(2) The holders of Class A Shares shall, subject to the provisions of these
Bye-laws:
(a) be entitled to one vote per Class A Share;
(b) be entitled to such dividends as the directors may from time to time
declare on Class A Shares pari passu with the holders of Class B
Shares; and
(c) in the event of a winding-up or dissolution of the Company, whether
voluntary or involuntary or for a reorganisation or otherwise or upon a
distribution of capital, be entitled, after the satisfaction of the
rights of the holders of Preferred Shares, to all the surplus assets of
the Company pari passu with the holders of Class B Shares.
(3) The holders of Class B Shares shall, subject to the provisions of these
Bye-laws:
(a) be entitled to ten votes per Class B Share;
(b) be entitled to such dividends as the directors may from time to time
declare on Class B Shares, pari passu with the holders of Class A
Shares; and
(c) in the event of a winding up or dissolution of the Company, whether
voluntary or involuntary or for a re-organisation or otherwise or upon
a distribution of capital, be entitled, after the satisfaction of the
rights of the holders of Preferred Shares, to all the surplus assets of
the Company pari passu with the holders of Class A Shares.
(4) The Class B Shares shall be convertible into Class A Shares on a one
for one basis at the option of the holder thereof. All of the issued and
outstanding Class B Shares shall automatically convert into Class A Shares on a
one for one basis when the number of issued and outstanding Class B Shares is
less that ten per cent (10%) of the issued and outstanding Common Shares.
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(5) Class B Shares may only be transferred to the following (each a
"Permitted Transferee"): (i) to other holders of Class B Shares who were holders
of Class B shares prior to the consummation of the Company's public offering of
Class A Shares, (ii) in the case where the holder of Class B Shares is an
individual, to his or her Immediate Family by gift, devise or otherwise through
laws of descent or distribution, to a trust established by holders of Class B
Shares the beneficiaries of which are one or more of his or her Immediate
Family, to a corporation or other entity the majority of beneficial owners of
which are or will be owned by holders of Class B Shares, (iii) in the case where
the holder of Class B Shares is a corporation, to its shareholders, (iv) in the
case where the holder of Class B Shares is a partnership to its partners, and
(v) to any person who would be a Permitted Transferee through a series of
permitted transfers. Any other transfer of Class B Shares is void. However,
nothing in this Bye-law prevents a holder of Class B Shares from converting his
Class B Shares into Class A Shares as permitted by the Bye-laws and transferring
such Class A Shares as permitted by law.
(6) The transfer of more than fifty percent (50%) of the equity interest in
a corporation or partnership which is a holder of Class B Shares to other than a
Permitted Transferee shall cause all of the Class B Shares held by such
corporation or partnership to automatically convert into Class A Shares on a one
for one basis. The Company shall be entitled to seek specific enforcement of the
conversion in the event the holder of the Class B Shares fails to comply with
the requirements to effect such conversion, and shall be entitled to recover
from the holder the court costs, reasonable attorneys' fees and other cost and
expenses incurred by the Company in connection with obtaining such specific
enforcement.
(7) The Preferred Shares may be issued, subject to the Act, the Company's
memorandum of association and these Bye-laws as from time to time amended, from
time to time in one or more series of any number of shares, and with distinctive
serial designations, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issuance of such Preferred Shares
from time to time adopted by the Board of Directors pursuant to authority so to
do which is hereby vested in the Board of Directors. Subject to the Act, the
Company's memorandum of association and these Bye-laws, each series of Preferred
Shares (a) may have such voting powers, (b) may be subject to redemption at such
time or times, price or prices, or rate or rates, and with such adjustments, (c)
may be entitled to receive dividends (which may be cumulative or noncumulative)
at such rates, on such conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or of any other series of stock, (d) may have such rights upon the dissolution
of, or upon any distribution of the assets of, the Company, (e) may be made
convertible into, or exchangeable for, shares of any other class or classes or
any other series of the same or any other class or classes of shares of the
Company, at such price or prices or at such rate or rates of exchange, and with
such adjustments, (f) may be entitled to the benefit of a sinking fund with
respect to the purchase or redemption of shares of such series, and (g) may have
such other preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions of such preferences
and/or rights, all as shall be stated in said resolution or resolutions
providing for the issue of such Preferred Shares.
Subject to the Act, the Company's memorandum of association and these Bye-laws
as from time to time amended, with respect to the closing of the Register or the
fixing of a record date for the determination of Members entitled to vote and
except as otherwise provided the Act, the Company's memorandum of association
and these Bye-laws as from time to time amended or by
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the resolution or resolutions providing for the issue of any series of Preferred
Shares, the holders of outstanding Common Shares shall exclusively have the
right to vote for the election of directors and for all other purposes. Except
as otherwise provided by the Act, the Company's memorandum of association and
these Bye-laws as from time to time amended or by the resolution or resolutions
providing for the issue of any series of Preferred Shares, the holders of Common
Shares shall be entitled, to the exclusion of the holders of Preferred Shares of
any and all series, to receive such dividends as from time to time may be
declared by the Board of Directors. Except as otherwise provided by the Act, the
Company's memorandum of association and these Bye-laws as from time to time
amended or by the resolution or resolutions providing for the issue of any
series of Preferred Shares, in the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, after payment shall
have been made to the holders of Preferred Shares of the full amount, if any,
for which they shall be entitled pursuant to the resolution or resolutions
providing for the issue of any series of Preferred Shares, the holders of Common
Shares shall be entitled, to the exclusion of the holders of Preferred Shares of
any and all series, to share, ratably according to the number of Common Shares
held by them, in all remaining assets of the Company available for distribution
to its Members.
(8) Subject to the Act, the Company's memorandum of association and, where
applicable, the rules of any Designated Stock Exchange and/or any competent
regulatory authority, any power of the Company to purchase or otherwise acquire
its own shares shall be exercisable by the Board upon such terms and subject to
such conditions as it thinks fit.
(9) Neither the Company nor any of its subsidiaries shall directly or
indirectly give financial assistance to a person who is acquiring or proposing
to acquire shares in the Company for the purpose of that acquisition whether
before or at the same time as the acquisition takes place or afterwards PROVIDED
that nothing in this Bye-law shall prohibit transactions permitted by the
Statutes.
ALTERATION OF CAPITAL
4. The Company may from time to time by ordinary resolution passed by the
holders of Common Shares in accordance with Section 45 of the Act:
(a) increase its capital by such sum, to be divided into shares of such
amounts, as the resolution shall prescribe;
(b) consolidate and divide all or any of its capital into shares of larger
amount than its existing shares;
(c) divide its shares into several classes and without prejudice to any
special rights previously conferred on the holders of existing shares
attach thereto respectively any preferential, deferred, qualified or
special rights, privileges, conditions or such restrictions which in
the absence of any such determination by the Company in general
meeting, as the Directors may determine provided always that where the
Company issues shares which do not carry voting rights, the words
"non-voting" shall appear in the designation of such shares;
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(d) sub-divide its shares, or any of them, into shares of smaller amount
than is fixed by the memorandum of association (subject, nevertheless,
to the Act), and may by such resolution determine that, as between the
holders of the shares resulting from such sub-division, one or more of
the shares may have any such preferred rights or be subject to any such
restrictions as compared with the other or others as the Company has
power to attach to unissued or new shares;
(e) change the currency denomination of its share capital; and
(f) cancel any shares which, at the date of the passing of the resolution,
have not been taken, or agreed to be taken, by any person, and diminish
the amount of its capital by the amount of the shares so cancelled.
5. The Board may settle as it considers expedient any difficulty which arises in
relation to any consolidation and division under the last preceding Bye-law and
in particular but without prejudice to the generality of the foregoing may issue
certificates in respect of fractions of shares or arrange for the sale of the
shares representing fractions and the distribution of the net proceeds of sale
(after deduction of the expenses of such sale) in due proportion amongst the
Members who would have been entitled to the fractions, and for this purpose the
Board may authorise some person to transfer the shares representing fractions to
their purchaser or resolve that such net proceeds be paid to the Company for the
Company's benefit. Such purchaser will not be bound to see to the application of
the purchase money nor will his title to the shares be affected by any
irregularity or invalidity in the proceedings relating to the sale.
6. The Company may from time to time by special resolution passed by the holders
of Class A Shares and passed by the holders of Class B Shares, subject to any
confirmation or consent required by law, reduce its authorised or issued share
capital or any share premium account or other undistributable reserve in any
manner permitted by law.
7. Except so far as otherwise provided by the conditions of issue, or by these
Bye-laws, any capital raised by the creation of new shares shall be treated as
if it formed part of the original capital of the Company, and such shares shall
be subject to the provisions contained in these Bye-laws with reference to the
payment of calls and instalments, transfer and transmission, forfeiture, lien,
cancellation, surrender, voting and otherwise.
SHARE RIGHTS
8. Subject to any special rights conferred on the holders of any shares or class
of shares, any share in the Company (whether forming part of the present capital
or not) may be issued with or have attached thereto such rights or restrictions
whether in regard to dividend, voting, return of capital or otherwise as the
Company may by ordinary resolution determine or, if there has not been any such
determination or so far as the same shall not make specific provision, as the
Board may determine.
9. Subject to Sections 42 and 43 of the Act, any preference shares may be issued
or converted into shares that, at a determinable date or at the option of the
Company or the holder if so authorised by its memorandum of association, are
liable to be redeemed on such terms and in such manner as the Company before the
issue or conversion may by ordinary resolution of the
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Members determine.
9A. (1) There shall be a class vote for the holders of Class A Shares and a
class vote for the holders of Class B Shares to pass a resolution to approve a
going private transaction, and unless such resolution is passed by a majority of
the votes cast at the meeting of each class, the resolution shall not pass.
(2) For the purposes of this bye-law, a "going private transaction" is any
Rule 13e-3 transaction as such term is defined in Rule 13e-3 promulgated under
the Securities Exchange Act of 1934 of the United States of America, as amended,
between the Company and (i) Ronald S. Lauder (the "Principal Shareholder"), (ii)
any Affiliate of the Principal Shareholder or (iii) any group consisting of the
Principal Shareholder or Affiliates of the Principal Shareholder. For the
purposes of this bye-law "Affiliate of the Principal Shareholder" means (i) any
individual or entity who or that, directly or indirectly, controls, is
controlled by, or is under common control with, the Principal Shareholder, (ii)
any corporation or organisation (other than the Company or a majority-owned
subsidiary of the Company) of which the Principal Shareholder is an officer or
partner or is, directly or indirectly, the beneficial owner of 10% or more of
any class of voting securities, or in which the Principal Shareholder has a
substantial beneficial interest, (iii) any trust or other estate in which the
Principal Shareholder has a substantial beneficial interest or as to which such
Principal Shareholder serves as trustee or in a similar fiduciary capacity or
(iv) any relative or spouse of a Principal Shareholder, or any relative of such
spouse, who has the same residence as such Principal Shareholder.
VARIATION OF RIGHTS
10. Subject to the Act and without prejudice to Bye-law 8, all or any of the
special rights for the time being attached to the shares or any class of shares
may, unless otherwise provided by the terms of issue of the shares of that
class, from time to time (whether or not the Company is being wound up) be
varied, modified or abrogated either with the consent in writing of the holders
of not less than three-fourths of the issued shares of that class or with the
sanction of a special resolution passed at a separate general meeting of the
holders of the shares of that class. To every such separate general meeting all
the provisions of these Bye-laws relating to general meetings of the Company
shall, mutatis mutandis, apply, but so that:
(a) the necessary quorum (other than at an adjourned meeting) shall be two
persons holding or representing by proxy not less than one-third in
nominal value of the issued shares of that class and at any adjourned
meeting of such holders, two holders present in person or by proxy
(whatever the number of shares held by them) shall be a quorum;
(b) every holder of shares of the class shall be entitled on a poll to one
vote for every such share held by him or in the case of Class B Shares,
ten votes for every such share held by him; and
(c) any holder of shares of the class present in person or by proxy may
demand a poll.
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11. The special rights conferred upon the holders of any shares or class of
shares shall not, unless otherwise expressly provided in the rights attaching to
or the terms of issue of such shares, be deemed to be varied, modified or
abrogated by the creation or issue of further shares ranking pari passu
therewith.
SHARES
12. (1) Subject to the Act and these Bye-laws and without prejudice to any
special rights or restrictions for the time being attached to any shares or any
class of shares, the unissued shares of the Company (whether forming part of the
original or any increased capital) shall be at the disposal of the Board, which
may offer, allot, grant options over or otherwise dispose of them to such
persons, at such times and for such consideration and upon such terms and
conditions as the Board may in its absolute discretion determine but so that no
shares shall be issued at a discount. Neither the Company nor the Board shall be
obliged, when making or granting any allotment of, offer of, option over or
disposal of shares, to make, or make available, any such offer, option or shares
to Members or others with registered addresses in any particular territory or
territories being a territory or territories where, in the absence of a
registration statement or other special formalities, this would or might, in the
opinion of the Board, be unlawful or impracticable. Members affected as a result
of the foregoing sentence shall not be, or be deemed to be, a separate class of
members for any purpose whatsoever.
(2) The Board may issue warrants conferring the right upon the holders
thereof to subscribe for any class of shares or securities in the capital of the
Company on such terms as it may from time to time determine.
13. The Company may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by the Act.
Subject to the Act, the commission may be satisfied by the payment of cash or by
the allotment of fully or partly paid shares or partly in one and partly in the
other.
14. Except as required by law, no person shall be recognised by the Company as
holding any share upon any trust and the Company shall not be bound by or
required in any way to recognise (even when having notice thereof) any
equitable, contingent, future or partial interest in any share or any fractional
part of a share or (except only as otherwise provided by these Bye-laws or by
law) any other rights in respect of any share except an absolute right to the
entirety thereof in the registered holder.
15. Subject to the Act and these Bye-laws, the Board may at any time after the
allotment of shares but before any person has been entered in the Register as
the holder, recognise a renunciation thereof by the allottee in favour of some
other person and may accord to any allottee of a share a right to effect such
renunciation upon and subject to such terms and conditions as the Board
considers fit to impose.
SHARE CERTIFICATES
16. Every share certificate shall be issued under the Seal or a facsimile
thereof and shall specify the number and class and distinguishing numbers (if
any) of the shares to which it relates, and the amount paid up thereon and may
otherwise be in such form as the Directors may from
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time to time determine. No certificate shall be issued representing shares of
more than one class. The Board may by resolution determine, either generally or
in any particular case or cases, that any signatures on any such certificates
(or certificates in respect of other securities) need not be autographic but may
be affixed to such certificates by some mechanical means or may be printed
thereon or that such certificates need not be signed by any person.
17. (1) In the case of a share held jointly by several persons, the Company
shall not be bound to issue more than one certificate therefor and delivery of a
certificate to one of several joint holders shall be sufficient delivery to all
such holders.
(2) Where a share stands in the names of two or more persons, the person
first named in the Register shall as regards service of notices and, subject to
the provisions of these Bye-laws, all or any other matters connected with the
Company, except the transfer of the shares, be deemed the sole holder thereof.
18. Every person whose name is entered, upon an allotment of shares, as a Member
in the Register shall be entitled, without payment, to receive one certificate
for all such shares of any one class or several certificates each for one or
more of such shares of such class upon payment for every certificate after the
first of such reasonable out-of-pocket expenses as the Board from time to time
determines.
19. (1) Subject to paragraph (2) hereof, share certificates shall be issued in
the case of an issue of shares within twenty-one (21) days (or such longer
period as the terms of the issue provide) after allotment or in the case of a
transfer of fully or partly paid shares within twenty-one (21) days after
lodgment of a transfer with the Company, not being a transfer which the Company
is for the time being entitled to refuse to register and does not register.
(2) Notwithstanding anything in these Bye-laws, a person may by notice in
writing to the Company elect that no certificate be issued in respect of shares
registered or to be registered in his name and on receipt of such election the
Company shall not be required to issue a certificate for such shares or may
cancel an existing certificate without issuing another certificate in lieu
thereof.
20. Upon every transfer of shares the certificate held by the transferor shall
be given up to be cancelled, and shall forthwith be cancelled accordingly, and a
new certificate shall be issued to the transferee in respect of the shares
transferred to him. If any of the shares included in the certificate so given up
shall be retained by the transferor a new certificate for the balance shall be
issued to him.
21. If a share certificate shall be damaged or defaced or alleged to have been
lost, stolen or destroyed a new certificate representing the same shares may be
issued to the relevant member upon request and on payment of such fee as the
Designated Stock Exchange may determine to be the maximum payable or such lesser
sum as the Board may determine and, subject to compliance with such terms (if
any) as to evidence and indemnity and to payment of the costs and reasonable
out-of-pocket expenses of the Company in investigating such evidence and
preparing such indemnity as the Board may think fit and, in case of damage or
defacement, on delivery of the old certificate to the Company provided always
that where share warrants have been issued, no new share warrant shall be issued
to replace one that has been lost unless the Directors are satisfied
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beyond reasonable doubt that the original has been destroyed.
LIEN
22. The Company shall have a first and paramount lien on every share (not being
a fully paid share) for all moneys (whether presently payable or not) called or
payable at a fixed time in respect of that share. The Company shall also have a
first and paramount lien on every share (not being a fully paid share)
registered in the name of a Member (whether or not jointly with other Members)
for all amounts of money presently payable by such Member or his estate to the
Company whether the same shall have been incurred before or after notice to the
Company of any equitable or other interest of any person other than such member,
and whether the period for the payment or discharge of the same shall have
actually arrived or not, and notwithstanding that the same are joint debts or
liabilities of such Member or his estate and any other person, whether a Member
of the Company or not. The Company's lien on a share shall extend to all
dividends or other moneys payable thereon or in respect thereof. The Board may
at any time, generally or in any particular case, waive any lien that has arisen
or declare any share exempt in whole or in part, from the provisions of this
Bye-law.
23. Subject to these Bye-laws, the Company may sell in such manner as the Board
determines any share on which the Company has a lien, but no sale shall be made
unless some sum in respect of which the lien exists is presently payable, or the
liability or engagement in respect of which such lien exists is liable to be
presently fulfilled or discharged nor until the expiration of fourteen clear
days after a notice in writing, stating and demanding payment of the sum
presently payable, or specifying the liability or engagement and demanding
fulfilment or discharge thereof and giving notice of the intention to sell in
default, has been served on the registered holder for the time being of the
share or the person entitled thereto by reason of his death or bankruptcy.
24. The net proceeds of the sale shall be received by the Company and applied in
or towards payment or discharge of the debt or liability in respect of which the
lien exists, so far as the same is presently payable, and any residue shall
(subject to a like lien for debts or liabilities not presently payable as
existed upon the share prior to the sale) be paid to the person entitled to the
share at the time of the sale. To give effect to any such sale the Board may
authorise some person to transfer the shares sold to the purchaser thereof. The
purchaser shall be registered as the holder of the shares so transferred and he
shall not be bound to see to the application of the purchase money, nor shall
his title to the shares be affected by any irregularity or invalidity in the
proceedings relating to the sale.
CALLS ON SHARES
25. Subject to these Bye-laws and to the terms of allotment, the Board may from
time to time make calls upon the Members in respect of any moneys unpaid on
their shares (whether on account of the nominal value of the shares or by way of
premium), and each Member shall (subject to being given at least fourteen (14)
clear days' Notice specifying the time and place of payment) pay to the Company
as required by such notice the amount called on his shares. A call may be
extended, postponed or revoked in whole or in part as the Board determines but
no member shall be entitled to any such extension, postponement or revocation
except as a matter of grace and favour.
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26. A call shall be deemed to have been made at the time when the resolution of
the Board authorising the call was passed and may be made payable either in one
lump sum or by instalments. The Directors may make arrangements on the issue of
shares for a difference between the shareholders in the amount of calls to be
paid and in the times of payment.
27. A person upon whom a call is made shall remain liable for calls made upon
him notwithstanding the subsequent transfer of the shares in respect of which
the call was made. The joint holders of a share shall be jointly and severally
liable to pay all calls and instalments due in respect thereof or other moneys
due in respect thereof.
28. If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall pay
interest on the amount unpaid from the day appointed for payment thereof to the
time of actual payment at such rate (not exceeding twenty per cent. (20%) per
annum) as the Board may determine, but the Board may in its absolute discretion
waive payment of such interest wholly or in part.
29. No Member shall be entitled to receive any dividend or bonus or to be
present and vote (save as proxy for another Member) at any General Meeting
either personally or by proxy, or be reckoned in a quorum, or exercise any other
privilege as a Member until all calls or instalments due by him to the Company,
whether alone or jointly with any other person, together with interest and
expenses (if any) shall have been paid.
30. On the trial or hearing of any action or other proceedings for the recovery
of any money due for any call, it shall be sufficient to prove that the name of
the Member sued is entered in the Register as the holder, or one of the holders,
of the shares in respect of which such debt accrued, that the resolution making
the call is duly recorded in the minute book, and that notice of such call was
duly given to the Member sued, in pursuance of these Bye-laws; and it shall not
be necessary to prove the appointment of the Directors who made such call, nor
any other matters whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
31. Any amount payable in respect of a share upon allotment or at any fixed
date, whether in respect of nominal value or premium or as an instalment of a
call, shall be deemed to be a call duly made and payable on the date fixed for
payment and if it is not paid the provisions of these Bye-laws shall apply as if
that amount had become due and payable by virtue of a call duly made and
notified.
32. On the issue of shares the Board may differentiate between the allottees or
holders as to the amount of calls to be paid and the times of payment.
33. The Board may, if it thinks fit, receive from any Member willing to advance
the same, and either in money or money's worth, all or any part of the moneys
uncalled and unpaid or instalments payable upon any shares held by him and upon
all or any of the moneys so advanced (until the same would, but for such
advance, become presently payable) pay interest at such rate (if any) as the
Board may decide. The Board may at any time repay the amount so advanced upon
giving to such Member not less than one month's notice in writing of its
intention in that behalf, unless before the expiration of such notice the amount
so advanced shall have been called up on the shares in respect of which it was
advanced. Such payment in advance shall not entitle the holder of such share or
shares to participate in respect thereof in a dividend subsequently declared.
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FORFEITURE OF SHARES
34. (1) If a call remains unpaid after it has become due and payable the Board
may give to the person from whom it is due not less than fourteen (14) clear
days' notice:
(a) requiring payment of the amount unpaid together with any interest which
may have accrued and which may still accrue up to the date of actual
payment; and
(b) stating that if the notice is not complied with the shares on which the
call was made will be liable to be forfeited.
(2) If the requirements of any such notice are not complied with, any share
in respect of which such notice has been given may at any time thereafter,
before payment of all calls and interest due in respect thereof has been made,
be forfeited by a resolution of the Board to that effect, and such forfeiture
shall include all dividends and bonuses declared in respect of the forfeited
share but not actually paid before the forfeiture.
35. When any share has been forfeited, notice of the forfeiture shall be served
upon the person who was before forfeiture the holder of the share. No forfeiture
shall be invalidated by any omission or neglect to give such notice.
36. The Board may accept the surrender of any share liable to be forfeited
hereunder and, in such case, references in these Bye-laws to forfeiture will
include surrender.
37. Until cancelled in accordance with the requirements of the Act, a forfeited
share shall be the property of the Company and may be sold, re-allotted or
otherwise disposed of to such person, upon such terms and in such manner as the
Board determines, and at any time before a sale, re-allotment or disposition the
forfeiture may be annulled by the Board on such terms as the Board determines.
38. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares but nevertheless shall remain liable to pay the
Company all moneys which at the date of forfeiture were presently payable by him
to the Company in respect of the shares, with (if the Directors shall in their
discretion so require) interest thereon from the date of forfeiture until
payment at such rate (not exceeding twenty per cent. (20%) per annum) as the
Board determines. The Board may enforce payment thereof if it thinks fit, and
without any deduction or allowance for the value of the forfeited shares, at the
date of forfeiture, but his liability shall cease if and when the Company shall
have received payment in full of all such moneys in respect of the shares. For
the purposes of this Bye-law any sum which, by the terms of issue of a share, is
payable thereon at a fixed time which is subsequent to the date of forfeiture,
whether on account of the nominal value of the share or by way of premium, shall
notwithstanding that time has not yet arrived be deemed to be payable at the
date of forfeiture, and the same shall become due and payable immediately upon
the forfeiture, but interest thereon shall only be payable in respect of any
period between the said fixed time and the date of actual payment.
39. A declaration by a Director or the Secretary that a share has been forfeited
on a specified date shall be conclusive evidence of the facts therein stated as
against all persons claiming to be entitled to the share, and such declaration
shall (subject to the execution of an instrument of
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transfer by the Company if necessary) constitute a good title to the share, and
the person to whom the share is disposed of shall be registered as the holder of
the share and shall not be bound to see to the application of the consideration
(if any), nor shall his title to the share be affected by any irregularity in or
invalidity of the proceedings in reference to the forfeiture, sale or disposal
of the share. When any share shall have been forfeited, notice of the
declaration shall be given to the member in whose name it stood immediately
prior to the forfeiture, and an entry of the forfeiture, with the date thereof,
shall forthwith be made in the register, but no forfeiture shall be in any
manner invalidated by any omission or neglect to give such notice or make any
such entry.
40. Notwithstanding any such forfeiture as aforesaid the Board may at any time,
before any shares so forfeited shall have been sold, re-allotted or otherwise
disposed of, permit the shares forfeited to be bought back upon the terms of
payment of all calls and interest due upon and expenses incurred in respect of
the share, and upon such further terms (if any) as it thinks fit.
41. The forfeiture of a share shall not prejudice the right of the Company to
any call already made or instalment payable thereon.
42. The provisions of these Bye-laws as to forfeiture shall apply in the case of
non-payment of any sum which, by the terms of issue of a share, becomes payable
at a fixed time, whether on account of the nominal value of the share or by way
of premium, as if the same had been payable by virtue of a call duly made and
notified.
REGISTER OF MEMBERS
43. (1) The Company shall keep in one or more books a Register of its Members
and shall enter therein the following particulars, that is to say:
(a) the name and address of each Member, the number and class of shares
held by him and the amount paid or agreed to be considered as paid on
such shares;
(b) the date on which each person was entered in the Register; and
(c) the date on which any person ceased to be a Member.
(2) Subject to the Act, the Company may keep an overseas or local or other
branch register of Members resident in any place, and the Board may make and
vary such regulations as it determines in respect of the keeping of any such
register and maintaining a Registration Office in connection therewith.
44. The Register and branch register of Members, as the case may be, shall be
open to inspection between 10 a.m. and 12 noon on every business day by Members
without charge or by any other person, upon a maximum payment of five Bermuda
dollars, at the Office or such other place in Bermuda at which the Register is
kept in accordance with the Act or, if appropriate, upon a maximum payment of
ten dollars at the Registration Office. The Register including any overseas or
local or other branch register of Members may, after notice has been given by
advertisement in an appointed newspaper and where applicable, any other
newspapers in accordance with the requirements of any Designated Stock Exchange
to that effect, be closed at such times or for such periods not exceeding in the
whole thirty (30) days in each year as the
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Board may determine and either generally or in respect of any class of shares.
RECORD DATES
45. Notwithstanding any other provision of these Bye-laws the Company or the
Directors may fix any date as the record date for:
(a) determining the Members entitled to receive any dividend, distribution,
allotment or issue and such record date may be on, or at any time not
more than 30 days before or after, any date on which such dividend,
distribution, allotment or issue is declared, paid or made;
(b) determining the Members entitled to receive notice of and to vote at
any general meeting of the Company.
TRANSFER OF SHARES
46. Subject to these Bye-laws, any Member may transfer all or any of his shares
by an instrument of transfer in the usual or common form or in any other form
approved by the Board and may be under hand only.
47. The instrument of transfer shall be executed by or on behalf of the
transferor and the transferee provided that the Board may dispense with the
execution of the instrument of transfer by the transferee in any case which it
thinks fit in its discretion to do so. The Board may also resolve, either
generally or in any particular case, upon request by either the transferor or
transferee, to accept mechanically executed transfers. The transferor shall be
deemed to remain the holder of the share until the name of the transferee is
entered in the Register in respect thereof. Nothing in these Bye-laws shall
preclude the Board from recognising a renunciation of the allotment or
provisional allotment of any share by the allottee in favour of some other
person.
48. (1) The Board may, in its absolute discretion, and without giving any reason
therefor, refuse to register a transfer of any share issued under any share
scheme for employees upon which a restriction on transfer imposed thereby still
subsists, and it may also refuse to register a transfer of any share to more
than four (4) joint holders. Nothing in these Bye-laws shall impair the
settlement of transactions entered into through the facilities of the National
Association of Security Dealers Automated Quotations System or other Designate
Stock Exchange except as provided by such exchanges.
(2) No transfer shall be made to an infant or to a person of unsound mind
or under other legal disability.
(3) The Board in so far as permitted by any applicable law may, in its
absolute discretion, at any time and from time to time transfer any share upon
the Register to any branch register or any share on any branch register to the
Register or any other branch register. In the event of any such transfer, the
shareholder requesting such transfer shall bear the cost of effecting the
transfer unless the Board otherwise determines.
(4) Unless the Board otherwise agrees (which agreement may be on such terms
and
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subject to such conditions as the Board in its absolute discretion may from time
to time determine, and which agreement it shall, without giving any reason
therefor, be entitled in its absolute discretion to give or withhold), no shares
upon the Register shall be transferred to any branch register nor shall shares
on any branch register be transferred to the Register or any other branch
register and all transfers and other documents of title shall be lodged for
registration, and registered, in the case of any shares on a branch register, at
the relevant Registration Office, and, in the case of any shares on the
Register, at the Office or such other place in Bermuda at which the Register is
kept in accordance with the Act.
49. Without limiting the generality of the last preceding Bye-law, the Board may
decline to recognise any instrument of transfer unless:-
(a) the instrument of transfer is in respect of only one class of share;
(b) the instrument of transfer is lodged at the Office or such other place
in Bermuda at which the Register is kept in accordance with the Act or
the Registration Office (as the case may be) accompanied by the
relevant share certificate(s) and such other evidence as the Board may
reasonably require to show the right of the transferor to make the
transfer (and, if the instrument of transfer is executed by some other
person on his behalf, the authority of that person so to do); and
(c) if applicable, the instrument of transfer is duly and properly stamped.
50. If the Board refuses to register a transfer of any share in accordance with
Bye-law 48, it shall, within two (2) months after the date on which the transfer
was lodged with the Company, send to each of the transferor and transferee
notice of the refusal.
51. The registration of transfers of shares or of any class of shares may, after
notice has been given by advertisement in an appointed newspaper and, where
applicable, any other newspapers in accordance with the requirements of any
Designated Stock Exchange to that effect be suspended at such times and for such
periods (not exceeding thirty (30) days in any year) as the Board may determine.
TRANSMISSION OF SHARES
52. If a Member dies, the survivor or survivors where the deceased was a joint
holder, and his legal personal representatives where he was a sole or only
surviving holder, will be the only persons recognised by the Company as having
any title to his interest in the shares; but nothing in this Bye-law will
release the estate of a deceased Member (whether sole or joint) from any
liability in respect of any share which had been solely or jointly held by him.
53. Subject to Section 52 of the Act, any person becoming entitled to a share in
consequence of the death or bankruptcy or winding-up of a Member may, upon such
evidence as to his title being produced as may be required by the Board, elect
either to become the holder of the share or to have some person nominated by him
registered as the transferee thereof. If he elects to become the holder he shall
notify the Company in writing either at the Registration Office or Office, as
the case may be, to that effect. If he elects to have another person registered
he shall execute a transfer of the share in favour of that person. The
provisions of these Bye-laws relating
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to the transfer and registration of transfers of shares shall apply to such
notice or transfer as aforesaid as if the death or bankruptcy of the Member had
not occurred and the notice or transfer were a transfer signed by such Member.
54. A person becoming entitled to a share by reason of the death or bankruptcy
or winding-up of a Member shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered holder of the
share. However, the Board may, if it thinks fit, withhold the payment of any
dividend payable or other advantages in respect of such share until such person
shall become the registered holder of the share or shall have effectually
transferred such share, but, subject to the requirements of Bye- law 75(2) being
met, such a person may vote at meetings.
UNTRACEABLE MEMBERS
55. (1) Without prejudice to the rights of the Company under paragraph (2) of
this Bye-law, the Company may cease sending cheque for dividend entitlements or
dividend warrants by post if such cheque or warrants have been left uncashed on
two consecutive occasions. However, the Company may exercise the power to cease
sending cheque for dividend entitlements or dividend warrants after the first
occasion on which such a cheque or warrant is returned undelivered.
(2) The Company shall have the power to sell, in such manner as the Board
thinks fit, any shares of a Member who is untraceable, but no such sale shall be
made unless:
(a) all cheque or warrants in respect of dividends of the shares in
question, being not less than three in total number, for any sum
payable in cash to the holder of such shares in respect of them sent
during the relevant period in the manner authorised by the Bye-laws of
the Company have remained uncashed;
(b) so far as it is aware at the end of the relevant period, the Company
has not at any time during the relevant period received any indication
of the existence of the Member who is the holder of such shares or of a
person entitled to such shares by death, bankruptcy or operation of
law; and
(c) the Company, if so required by the rules governing the listing of
shares on the Designated Stock Exchange, has given notice to, and
caused advertisement in newspapers in accordance with the requirements
of, the Designated Stock Exchange to be made of its intention to sell
such shares in the manner required by the Designated Stock Exchange,
and a period of three (3) months or such shorter period as may be
allowed by the Designated Stock Exchange has elapsed since the date of
such advertisement.
For the purpose of the foregoing, the "relevant period" means the period
commencing twelve years before the date of publication of the advertisement
referred to in paragraph (c) of this Bye-law and ending at the expiry of the
period referred to in that paragraph.
(3) To give effect to any such sale the Board may authorise some person to
transfer the said shares and an instrument of transfer signed or otherwise
executed by or on behalf of such
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person shall be as effective as if it had been executed by the registered holder
or the person entitled by transmission to such shares, and the purchaser shall
not be bound to see to the application of the purchase money nor shall his title
to the shares be affected by any irregularity or invalidity in the proceedings
relating to the sale. The net proceeds of the sale will belong to the Company
and upon receipt by the Company of such net proceeds it shall become indebted to
the former Member for an amount equal to such net proceeds. No trust shall be
created in respect of such debt and no interest shall be payable in respect of
it and the Company shall not be required to account for any money earned from
the net proceeds which may be employed in the business of the Company or as it
thinks fit. Any sale under this Bye-law shall be valid and effective
notwithstanding that the Member holding the shares sold is dead, bankrupt or
otherwise under any legal disability or incapacity.
GENERAL MEETINGS
56. An annual general meeting of the Company shall be held in each year other
than the year of incorporation at such time and place as may be determined by
the Board.
57. Each general meeting, other than an annual general meeting, shall be called
a special general meeting. General meetings may be held in any part of the world
as may be determined by the Board.
58. (1) The Board may whenever it thinks fit call special general meetings, and
Members holding at the date of deposit of the requisition not less than
one-tenth of the paid up capital of the Company carrying the right of voting at
general meetings of the Company shall at all times have the right, by written
requisition to the Board or the Secretary of the Company, to require a special
general meeting to be called by the Board for the transaction of any business
specified in such requisition; and such meeting shall be held within two (2)
months after the deposit of such requisition. If within twenty-one (21) days of
such deposit the Board fails to proceed to convene such meeting the
requisitionists themselves may do so in accordance with the provisions of
Section 74(3) of the Act.
(2) Subject to paragraph (1) of this Bye-law, a Member may nominate
candidates for the election of Directors as well as propose resolutions to be
considered at an annual general meeting of the Company, provided that notice of
intent to nominate a Director or raise business at such a meeting is received by
the Company not less than 90 nor more than 120 days prior to the meeting. The
notice shall contain with respect to nominating a director, the name, address
and relationship to the Company of the person proposed to be nominated as a
Director and the form of resolution, as well as a brief description as to why
the passing of the resolution is beneficial to the Company, and with respect to
raising business at a meeting the form of resolution recommended as well as a
brief description as to why the passing of the resolution is beneficial to the
Company.
NOTICE OF GENERAL MEETINGS
59. (1) An annual general meeting and any special general meeting shall be
called by not less than fourteen (14) clear days' Notice but a general meeting
may be called by shorter notice if it is so agreed:
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(a) in the case of a meeting called as an annual general meeting, by all
the Members entitled to attend and vote thereat; and
(b) in the case of any other meeting, by a majority in number of the
Members having the right to attend and vote at the meeting, being a
majority together holding not less than ninety-five per cent. (95%) in
nominal value of the issued shares giving that right.
(2) The period of notice shall be exclusive of the day on which it is
served or deemed to be served and exclusive of the day on which the meeting is
to be held, and the notice shall specify the time and place of the meeting and,
in case of special business, the general nature of the business. The notice
convening an annual general meeting shall specify the meeting as such. Notice of
every general meeting shall be given to all Members other than to such Members
as, under the provisions of these Bye-laws or the terms of issue of the shares
they hold, are not entitled to receive such notices from the Company, to all
persons entitled to a share in consequence of the death or bankruptcy or
winding-up of a Member and to each of the Directors and the Auditors.
60. The accidental omission to give Notice of a meeting or (in cases where
instruments of proxy are sent out with the Notice) to send such instrument of
proxy to, or the non-receipt of such Notice or such instrument of proxy by, any
person entitled to receive such Notice shall not invalidate any resolution
passed or the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
61. (1) All business shall be deemed special that is transacted at a special
general meeting, and also all business that is transacted at an annual general
meeting, with the exception of sanctioning dividends, the reading, considering
and adopting of the accounts and balance sheet and the reports of the Directors
and Auditors and other documents required to be annexed to the balance sheet,
the election of Directors and appointment of Auditors and other officers in the
place of those retiring, the fixing of the remuneration of the Auditors, and the
voting of remuneration or extra remuneration to the Directors.
(2) No business other than the appointment of a chairman of a meeting shall
be transacted at any general meeting unless a quorum is present at the
commencement of the business. Such number of Members holding a majority of the
votes of the Company and present in person or by proxy or (in the case of a
member being a corporation) by its duly authorised representative shall form a
quorum for all purposes.
62. If within thirty (30) minutes (or such longer time not exceeding one hour as
the chairman of the meeting may determine to wait) after the time appointed for
the meeting a quorum is not present, the meeting, if convened on the requisition
of Members, shall be dissolved. In any other case it shall stand adjourned to
the same day in the next week at the same time and place or to such time and
place as the Board may determine. If at such adjourned meeting a quorum is not
present within half an hour from the time appointed for holding the meeting, the
meeting shall be dissolved.
63. The President of the Company or the Chairman shall preside as chairman at
every general
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meeting. If at any meeting the President or the Chairman, as the case may be, is
not present within fifteen (15) minutes after the time appointed for holding the
meeting, or if neither of them is willing to act as chairman, the Directors
present shall choose one of their number to act, or if one Director only is
present he shall preside as chairman if willing to act. If no Director is
present, or if each of the Directors present declines to take the chair, or if
the Chairman chosen shall retire from the chair, the Members present in person
or by proxy and entitled to vote shall elect one of their number to be chairman.
64. The Chairman may, with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting), adjourn the meeting from time
to time and from place to place as the meeting shall determine, but no business
shall be transacted at any adjourned meeting other than business which might
lawfully have been transacted at the meeting had the adjournment not taken
place. When a meeting is adjourned for fourteen (14) days or more, at least
seven (7) clear days' notice of the adjourned meeting shall be given specifying
the time and place of the adjourned meeting but it shall not be necessary to
specify in such notice the nature of the business to be transacted at the
adjourned meeting and the general nature of the business to be transacted. Save
as aforesaid, it shall be unnecessary to give notice of an adjournment. No
business shall be transacted at any such adjourned meeting other than the
business which might have been transacted at the meeting from which the
adjournment took place.
65. If an amendment is proposed to any resolution under consideration but is in
good faith ruled out of order by the chairman of the meeting, the proceedings on
the substantive resolution shall not be invalidated by any error in such ruling.
In the case of a resolution duly proposed as a special resolution, no amendment
thereto (other than a mere clerical amendment to correct a patent error) may in
any event be considered or voted upon.
VOTING
66. Subject to any special rights or restrictions as to voting for the time
being attached to any shares by or in accordance with these Bye-laws, at any
general meeting on a show of hands every Member present in person or by proxy or
(being a corporation) is present by a representative duly authorised under
Section 78 of the Act shall have one vote and on a poll every Member present in
person or in the case of a Member being a corporation by its duly authorised
representative or by proxy shall have such number of votes as are attached to
every fully paid share of which he is the holder but so that no amount paid up
or credited as paid up on a share in advance of calls or instalments is treated
for the foregoing purposes as paid up on the share. A resolution put to the vote
of a meeting shall be decided on a show of hands unless (before or on the
declaration of the result of the show of hands or on the withdrawal of any other
demand for a poll) a poll is demanded:
(a) by the chairman of such meeting; or
(b) by at least three Members present in person or in the case of a Member
being a corporation by its duly authorised representative or by proxy
for the time being entitled to vote at the meeting; or
(c) by a Member or Members present in person or in the case of a Member
being a corporation by its duly authorised representative or by proxy
and representing not
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less than one-tenth of the total voting rights of all Members having
the right to vote at the meeting; or
(d) by a Member or Members present in person or in the case of a Member
being a corporation by its duly authorised representative or by proxy
and holding shares in the Company conferring a right to vote at the
meeting being shares on which an aggregate sum has been paid up equal
to not less than one-tenth of the total sum paid up on all shares
conferring that right.
A demand by a person as proxy for a Member or in the case of a Member being a
corporation by its duly authorised representative shall be deemed to be the same
as a demand by a Member.
67. Unless a poll is duly demanded and the demand is not withdrawn, a
declaration by the chairman that a resolution has been carried, or carried
unanimously, or by a particular majority, or not carried by a particular
majority, or lost, and an entry to that effect made in the minute book of the
Company, shall be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded for or against the resolution.
68. If a poll is duly demanded the result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded. There shall be no
requirement for the chairman to disclose the voting figures on a poll.
69. A poll demanded on the election of a chairman, or on a question of
adjournment, shall be taken forthwith. A poll demanded on any other question
shall be taken in such manner (including the use of ballot or voting papers or
tickets) and either forthwith or at such time (being not later than thirty (30)
days after the date of the demand) and place as the Chairman directs. It shall
not be necessary (unless the chairman otherwise directs) for notice to be given
of a poll not taken immediately.
70. The demand for a poll shall not prevent the continuance of a meeting or the
transaction of any business other than the question on which the poll has been
demanded, and, with the consent of the chairman, it may be withdrawn at any time
before the close of the meeting or the taking of the poll, whichever is the
earlier.
71. On a poll votes may be given either personally or by proxy.
72. A person entitled to more than one vote on a poll need not use all his votes
or cast all the votes he uses in the same way.
73. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman of such meeting shall be entitled to a second or casting vote
in addition to any other vote he may have.
74. Where there are joint holders of any share any one of such joint holder may
vote, either in person or by proxy, in respect of such share as if he were
solely entitled thereto, but if more than one of such joint holders be present
at any meeting the vote of the senior who tenders a vote, whether in person or
by proxy, shall be accepted to the exclusion of the votes of the other joint
holders, and for this purpose seniority shall be determined by the order in
which the names stand
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in the Register in respect of the joint holding. Several executors or
administrators of a deceased Member in whose name any share stands shall for the
purposes of this Bye-law be deemed joint holders thereof.
75. (1) A Member who is a patient for any purpose relating to mental health or
in respect of whom an order has been made by any court having jurisdiction for
the protection or management of the affairs of persons incapable of managing
their own affairs may vote, whether on a show of hands or on a poll, by his
receiver, committee, curator bonis or other person in the nature of a receiver,
committee or curator bonis appointed by such court, and such receiver,
committee, curator bonis or other person may vote on a poll by proxy, and may
otherwise act and be treated as if he were the registered holder of such shares
for the purposes of general meetings, provided that such evidence as the Board
may require of the authority of the person claiming to vote shall have been
deposited at the Office, head office or Registration Office, as appropriate, not
less than forty-eight (48) hours before the time appointed for holding the
meeting, or adjourned meeting or poll, as the case may be.
(2) Any person entitled under Bye-law 53 to be registered as the holder of
any shares may vote at any general meeting in respect thereof in the same manner
as if he were the registered holder of such shares, provided that forty-eight
(48) hours at least before the time of the holding of the meeting or adjourned
meeting, as the case may be, at which he proposes to vote, he shall satisfy the
Board of his entitlement to such shares, or the Board shall have previously
admitted his right to vote at such meeting in respect thereof.
76. No Member shall, unless the Board otherwise determines, be entitled to
attend and vote and to be reckoned in a quorum at any General Meeting unless he
is duly registered and all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
77. If:
(a) any objection shall be raised to the qualification of any voter; or
(b) any votes have been counted which ought not to have been counted or
which might have been rejected; or
(c) any votes are not counted which ought to have been counted;
the objection or error shall not vitiate the decision of the meeting or
adjourned meeting on any resolution unless the same is raised or pointed out at
the meeting or, as the case may be, the adjourned meeting at which the vote
objected to is given or tendered or at which the error occurs. Any objection or
error shall be referred to the Chairman of the meeting and shall only vitiate
the decision of the meeting on any resolution if the Chairman decides that the
same may have affected the decision of the meeting. The decision of the Chairman
on such matters shall be final and conclusive.
PROXIES
78. Any Member entitled to attend and vote at a meeting of the Company shall be
entitled to appoint another person as his proxy to attend and vote instead of
him. A Member may appoint
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a proxy in respect of part only of his holding of shares in the Company. A proxy
need not be a Member of the Company.
79. The instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney duly authorised in writing or, if the appointor is
a corporation, either under its seal or under the hand of an officer, attorney
or other person authorised to sign the same. In the case of an instrument of
proxy purporting to be signed on behalf of a corporation by an officer thereof
it shall be assumed, unless the contrary appears, that such officer was duly
authorised to sign such instrument of proxy on behalf of the corporation without
further evidence of the fact.
80. The instrument appointing a proxy and (if required by the Board) the power
of attorney or other authority (if any) under which it is signed, or a certified
copy of such power or authority, shall be delivered to such place or one of such
places (if any) as may be specified for that purpose in or by way of note to or
in any document accompanying the notice convening the meeting (or, if no place
is so specified at the Registration Office or the Office, as may be appropriate)
not less than forty-eight (48) hours before the time appointed for holding the
meeting or adjourned meeting at which the person named in the instrument
proposes to vote or, in the case of a poll taken subsequently to the date of a
meeting or adjourned meeting, not less than twenty-four (24) hours before the
time appointed for the taking of the poll and in default the instrument of proxy
shall not be treated as valid. No instrument appointing a proxy shall be valid
after the expiration of twelve (12) months from the date named in it as the date
of its execution, except at an adjourned meeting or on a poll demanded at a
meeting or an adjourned meeting in cases where the meeting was originally held
within twelve (12) months from such date. Delivery of an instrument appointing a
proxy shall not preclude a Member from attending and voting in person at the
meeting convened and in such event, the instrument appointing a proxy shall be
deemed to be revoked.
81. Instruments of proxy shall be in any common form or in such other form as
the Board may approve (provided that this shall not preclude the use of the
two-way form) and the Board may, if it thinks fit, send out with the notice of
any meeting forms of instrument of proxy for use at the meeting. The instrument
of proxy shall be deemed to confer authority to demand or join in demanding a
poll and to vote on any amendment of a resolution put to the meeting for which
it is given as the proxy thinks fit. The instrument of proxy shall, unless the
contrary is stated therein, be valid as well for any adjournment of the meeting
as for the meeting to which it relates.
82. A vote given in accordance with the terms of an instrument of proxy shall be
valid notwithstanding the previous death or insanity of the principal, or
revocation of the instrument of proxy or of the authority under which it was
executed, provided that no intimation in writing of such death, insanity or
revocation shall have been received by the Company at the Office or the
Registration Office (or such other place as may be specified for the delivery of
instruments of proxy in the notice convening the meeting or other document sent
therewith) two (2) hours at least before the commencement of the meeting or
adjourned meeting, or the taking of the poll, at which the instrument of proxy
is used.
83. Anything which under these Bye-laws a Member may do by proxy he may likewise
do by his duly appointed attorney and the provisions of these Bye-laws relating
to proxies and instruments appointing proxies shall apply mutatis mutandis in
relation to any such attorney and the instrument under which such attorney is
appointed.
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CORPORATIONS ACTING BY REPRESENTATIVES
84. (1) Any corporation which is a Member of the Company may by resolution of
its directors or other governing body authorise such person as it thinks fit to
act as its representative at any meeting of the Company or any class of Members
of the Company. The person so authorised shall be entitled to exercise the same
powers on behalf of such corporation as the corporation could exercise if it
were an individual Member of the Company and such corporation shall for the
purposes of these Bye-laws be deemed to be present in person at any such meeting
if a person so authorised is present thereat. Any reference in these Bye-laws to
a duly authorised representative of a Member being a corporation shall mean a
representative authorised under the provisions of this Bye-law.
(2) If a clearing house is a Member, it may authorise such person or
persons as it thinks fit to act as its representative or representatives at any
meeting of the Company or at any meeting of any class of Members provided that,
if more than one person is so authorised, the authorization shall specify the
number and class of shares in respect of which each such person is so
authorised. A person so authorised under the provisions of this Bye-law shall be
entitled to exercise the same powers on behalf of the clearing house (or its
nominee) which he represents as that clearing house (or its nominee) could
exercise if it were an individual Member.
WRITTEN RESOLUTIONS OF MEMBERS
85. (1) Subject to the Act, a resolution in writing signed (in such manner as to
indicate, expressly or impliedly, unconditional approval) by or on behalf of all
persons for the time being entitled to receive notice of and to attend and vote
at general meetings of the Company shall, for the purposes of these Bye-laws, be
treated as a resolution duly passed at a general meeting of the Company and,
where relevant, as a special resolution so passed. Any such resolution shall be
deemed to have been passed at a meeting held on the date on which it was signed
by the last Member to sign, and where the resolution states a date as being the
date of his signature thereof by any Member the statement shall be prima facie
evidence that it was signed by him on that date. Such a resolution may consist
of several documents in the like form, each signed by one or more relevant
Members.
(2) Notwithstanding any provisions contained in these Bye-laws, a
resolution in writing shall not be passed for the purpose of removing a Director
before the expiration of his term of office under Bye-law 86(4) or for the
purposes set out in Bye-law 154(3) relating to the removal and appointment of
the Auditor.
BOARD OF DIRECTORS
86. (1) Unless otherwise determined by the Company in general meeting, the
number of Directors shall not be less than three (3). At all times, at least two
(2) Directors shall be independent directors. There shall be no maximum number
of Directors. The Directors shall be elected or appointed by ordinary resolution
in the first place at the statutory meeting of Members and thereafter at each
annual general meeting of the Company subject to Bye-law 87 and shall hold
office until the next appointment of Directors or until their successors are
elected or appointed. Any general meeting may authorise the Board to fill any
vacancy in their number left unfilled at a general meeting.
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(2) The Directors shall have the power from time to time and at any time to
appoint any person as a Director either to fill a casual vacancy on the Board or
as an addition to the existing Board but so that the number of Directors so
appointed shall not exceed any maximum number determined from time to time by
the Members in general meeting. Any Director so appointed by the Board shall
hold office only until the next following annual general meeting of the Company
and shall then be eligible for re-election at that meeting.
(3) Neither a Director nor an alternate Director shall be required to hold
any shares of the Company by way of qualification and a Director or alternate
Director (as the case may be) who is not a Member shall be entitled to receive
notice of and to attend and speak at any general meeting of the Company and of
all classes of shares of the Company.
(4) Subject to any provision to the contrary in these Bye-laws the Members
may, at any general meeting convened and held in accordance with these Bye-laws,
by special resolution remove a Director at any time before the expiration of his
period of office notwithstanding anything in these Bye-laws or in any agreement
between the Company and such Director (but without prejudice to any claim for
damages under any such agreement) provided that the notice of any such meeting
convened for the purpose of removing a Director shall contain a statement of the
intention so to do and be served on such Director fourteen (14) days before the
meeting and at such meeting such Director shall be entitled to be heard on the
motion for his removal.
(5) A vacancy on the Board created by the removal of a Director under the
provisions of subparagraph (4) above may be filled by the election or
appointment by the Members at the meeting at which such Director is removed to
hold office until the next appointment of Directors or until their successors
are elected or appointed or, in the absence of such election or appointment such
general meeting may authorise the Board to fill any vacancy in the number left
unfilled.
(6) The Company may from time to time in general meeting by ordinary
resolution increase or reduce the number of Directors but so that the number of
Directors shall never be less than two (2).
RETIREMENT OF DIRECTORS
87. (1) At each annual general meeting all of the Directors for the time being
shall retire from office.
(2) A retiring Director shall be eligible for re-election.
88. No person other than a Director retiring at the meeting shall, unless
recommended by the Directors for election, be eligible for election as a
Director at any general meeting unless not less than seven (7) days before the
date appointed for the meeting there shall have been lodged at the Office or at
the head office notice in writing signed by a Member (other than the person to
be proposed) duly qualified to attend and vote at the meeting for which such
notice is given of his intention to propose such person for election and also
notice in writing signed by the person to be proposed of his willingness to be
elected.
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DISQUALIFICATION OF DIRECTORS
89. The office of a Director shall be vacated if the Director:
(1) resigns his office by notice in writing delivered to the Company at the
Office or tendered at a meeting of the Board whereupon the Board resolves to
accept such resignation;
(2) becomes of unsound mind or dies;
(3) without special leave of absence from the Board, is absent from
meetings of the Board for six consecutive months, and his alternate Director, if
any, shall not during such period have attended in his stead and the Board
resolves that his office be vacated; or
(4) becomes bankrupt or has a receiving order made against him or suspends
payment or compounds with his creditors;
(5) is prohibited by law from being a Director; or
(6) ceases to be a Director by virtue of any provision of the Statutes or
is removed from office pursuant to these Bye-laws.
EXECUTIVE DIRECTORS AND COMMITTEES
90. The Board may from time to time appoint any one or more of its body to be a
Managing Director, Joint Managing Director or Deputy Managing Director or to
hold any other employment or executive office with the Company for such period
(subject to their continuance as Directors) and upon such terms as the Board may
determine and the Board may revoke or terminate any of such appointments. Any
such revocation or termination as aforesaid shall be without prejudice to any
claim for damages that such Director may have against the Company or the Company
may have against such Director. A Director appointed to an office under this
Bye-law shall be subject to the same provisions as to removal as the other
Directors of the Company, and he shall (subject to the provisions of any
contract between him and the Company) ipso facto and immediately cease to hold
such office if he shall cease to hold the office of Director for any cause.
91. Notwithstanding Bye-laws 96, 97, 98 and 99, an executive Director appointed
to an office under Bye-law 90 hereof shall receive such remuneration (whether by
way of salary, commission, participation in profits or otherwise or by all or
any of those modes) and such other benefits (including pension and/or gratuity
and/or other benefits on retirement) and allowances as the Board may from time
to time determine, and either in addition to or in lieu of his remuneration as a
Director.
91A. The Board may delegate any of its powers to a committee appointed by the
Board and every such committee shall conform to such directions as the Board
shall impose on them. The Board shall maintain an audit committee, a majority of
the members of which shall be independent directors.
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ALTERNATE DIRECTORS
92. Any Director may at any time by Notice delivered to the Office or head
office or at a meeting of the Directors appoint any person to be his alternate
Director. Any person so appointed shall have all the rights and powers of the
Director or Directors for whom such person is appointed in the alternative
provided that such person shall not be counted more than once in determining
whether or not a quorum is present. An alternate Director may be removed at any
time by the body which appointed him and, subject thereto, the office of
alternate Director shall continue until the next annual election of Directors
or, if earlier, the date on which the relevant Director ceases to be a Director.
Any appointment or removal of an alternate Director shall be effected by Notice
signed by the appointor and delivered to the Office or head office or tendered
at a meeting of the Board. An alternate Director may also be a Director in his
own right and may act as alternate to more than one Director. An alternate
Director shall, if his appointor so requests, be entitled to receive notices of
meetings of the Board or of committees of the Board to the same extent as, but
in lieu of, the Director appointing him and shall be entitled to such extent to
attend and vote as a Director at any such meeting at which the Director
appointing him is not personally present and generally at such meeting to
exercise and discharge all the functions, powers and duties of his appointor as
a Director and for the purposes of the proceedings at such meeting the
provisions of these Bye-laws shall apply as if he were a Director save that as
an alternate for more than one Director his voting rights shall be cumulative.
93. An alternate Director shall only be a Director for the purposes of the Act
and shall only be subject to the provisions of the Act insofar as they relate to
the duties and obligations of a Director when performing the functions of the
Director for whom he is appointed in the alternative and shall alone be
responsible to the Company for his acts and defaults and shall not be deemed to
be the agent of or for the Director appointing him. An alternate Director shall
be entitled to contract and be interested in and benefit from contracts or
arrangements or transactions and to be repaid expenses and to be indemnified by
the Company to the same extent mutatis mutandis as if he were a Director but he
shall not be entitled to receive from the Company any fee in his capacity as an
alternate Director except only such part, if any, of the remuneration otherwise
payable to his appointor as such appointor may by notice in writing to the
Company from time to time direct.
94. Every person acting as an alternate Director shall have one vote for each
Director for whom he acts as alternate (in addition to his own vote if he is
also a Director). If his appointor is for the time being absent from Hong Kong
or otherwise not available or unable to act, the signature of an alternate
Director to any resolution in writing of the Board or a committee of the Board
of which his appointor is a member shall, unless the notice of his appointment
provides to the contrary, be as effective as the signature of his appointor.
95. An alternate Director shall ipso facto cease to be an alternate Director if
his appointor ceases for any reason to be a Director, however, such alternate
Director or any other person may be re-appointed by the Directors to serve as an
alternate Director PROVIDED always that, if at any meeting any Director retires
but is re-elected at the same meeting, any appointment of such alternate
Director pursuant to these Bye-laws which was in force immediately before his
retirement shall remain in force as though he had not retired.
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DIRECTORS' FEES AND EXPENSES
96. The remuneration of the Directors shall from time to time be determined by
the Directors and reported to the Members on an annual basis. Such remuneration
shall be deemed to accrue from day to day.
97. Each Director shall be entitled to be repaid or prepaid all travelling,
hotel and incidental expenses reasonably incurred or expected to be incurred by
him in attending meetings of the Board or committees of the Board or general
meetings or separate meetings of any class of shares or of debentures of the
Company or otherwise in connection with the discharge of his duties as a
Director.
98. Any Director who, by request, goes or resides abroad for any purpose of the
Company or who performs services which in the opinion of the Board go beyond the
ordinary duties of a Director may be paid such extra remuneration (whether by
way of salary, commission, participation in profits or otherwise) as the Board
may determine and such extra remuneration shall be in addition to or in
substitution for any ordinary remuneration provided for by or pursuant to any
other Bye-law.
99. The Board shall obtain the approval of the Company in general meeting before
making any payment to any Director or past Director of the Company by way of
compensation for loss of office, or as consideration for or in connection with
his retirement from office (not being payment to which the Director is
contractually entitled).
DIRECTORS' AND OFFICERS' INTERESTS
100. A Director may:
(a) hold any other office or place of profit with the Company (except that
of Auditor) in conjunction with his office of Director for such period
and, subject to the relevant provisions of the Act, upon such terms as
the Board may determine. Any remuneration (whether by way of salary,
commission, participation in profits or otherwise) paid to any Director
in respect of any such other office or place of profit shall be in
addition to any remuneration provided for by or pursuant to any other
Bye-law;
(b) act by himself or his firm in a professional capacity for the Company
(otherwise than as Auditor) and he or his firm may be remunerated for
professional services as if he were not a Director;
(c) continue to be or become a director, managing director, joint managing
Director, deputy managing director, executive director, manager or
other officer or member of any other company promoted by the Company or
in which the Company may be interested as a vendor, shareholder or
otherwise and (unless otherwise agreed) no such Director shall be
accountable for any remuneration, profits or other benefits received by
him as a director, managing director, joint managing director, deputy
managing director, executive director, manager or
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other officer or member of or from his interests in any such other
company. Subject as otherwise provided by these Bye-laws the Directors
may exercise or cause to be exercised the voting powers conferred by
the shares in any other company held or owned by the Company, or
exercisable by them as Directors of such other company in such manner
in all respects as they think fit (including the exercise thereof in
favour of any resolution appointing themselves or any of them
directors, managing directors, joint managing directors, deputy
managing directors, executive directors, managers or other officers of
such company) or voting or providing for the payment of remuneration to
the director, managing director, joint managing director, deputy
managing director, executive director, manager or other officers of
such other company and any Director may vote in favour of the exercise
of such voting rights in manner aforesaid notwithstanding that he may
be, or about to be, appointed a director, managing director, joint
managing director, deputy managing director, executive director,
manager or other officer of such a company, and that as such he is or
may become interested in the exercise of such voting rights in manner
aforesaid.
101. Subject to the Act and to these Bye-laws, no Director or officer or
proposed or intending Director or officer shall be disqualified by his office
from contracting with the Company, either with regard to his tenure of any
office or place of profit or as vendor, purchaser or in any other manner
whatever, nor shall any such contract or any other contract or arrangement in
which any Director or officer is in any way interested be liable to be avoided,
nor shall any Director or officer so contracting or being so interested be
liable to account to the Company or the Members for any remuneration, profit or
other benefits realised by any such contract or arrangement by reason of such
Director or officer holding that office or of the fiduciary relationship thereby
established provided that such Director or officer shall disclose the nature of
his interest in any contract or arrangement in which he is interested in
accordance with Bye-law 102 herein.
102. A Director or officer who to his knowledge is in any way, whether directly
or indirectly, interested in a contract or arrangement or proposed contract or
arrangement with the Company shall declare the nature of his interest at the
meeting of the Board at which the question of entering into the contract or
arrangement is first considered, if he knows his interest then exists, or in any
other case at the first meeting of the Board after he knows that he is or has
become so interested. For the purposes of this Bye-law, a general notice to the
Board by a Director to the effect that:
(a) he is a member or officer of a specified company or firm and is to be
regarded as interested in any contract or arrangement which may after
the date of the notice be made with that company or firm; or
(b) he is to be regarded as interested in any contract or arrangement which
may after the date of the notice be made with a specified person who is
connected with him;
shall be deemed to be a sufficient declaration of interest under this Bye-law in
relation to any such contract or arrangement, provided that no such notice shall
be effective unless either it is given at a meeting of the Board or the Director
or officer takes reasonable steps to secure that it is brought up and read at
the next Board meeting after it is given.
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103. (1) A Director shall not vote (nor be counted in the quorum) on any
resolution of the Board in respect of any contract or arrangement or any other
proposal in which he is to his knowledge materially interested, but this
prohibition shall not apply to any of the following matters namely:
(i) any contract or arrangement for giving to such Director any security
or indemnity in respect of money lent by him or obligations incurred
or undertaken by him at the request of or for the benefit of the
Company or any of its subsidiaries;
(ii) any contract or arrangement for the giving of any security or
indemnity to a third party in respect of a debt or obligation of the
Company or any of its subsidiaries for which the Director has himself
assumed responsibility in whole or in part whether alone or jointly
under a guarantee or indemnity or by the giving of security;
(iii) any contract or arrangement concerning an offer of shares or
debentures or other securities of or by the Company or any other
company which the Company may promote or be interested in for
subscription or purchase, where the Director is or is to be
interested as a participant in the underwriting or sub-underwriting
of the offer;
(iv) any contract or arrangement in which he is interested in the same
manner as other holders of shares or debentures or other securities
of the Company or any of its subsidiaries by virtue only of his
interest in shares or debentures or other securities of the Company;
(v) any contract or arrangement concerning any other company in which he
is interested only, whether directly or indirectly, as an officer or
executive or a shareholder other than a company in which the Director
together with any of his associates (as defined by the rules, where
applicable, of the Designated Stock Exchange) is beneficially
interested in five (5) per cent or more of the issued shares or of
the voting rights of any class of shares of such company (or any
third company through which his interest is derived); or
(vi) any proposal concerning the adoption, modification or operation of a
share option scheme, a pension fund or retirement, death or
disability benefits scheme or other arrangement which relates both to
directors and employees of the Company or of any of its subsidiaries
and does not provide in respect of any Director as such any privilege
or advantage not accorded to the employees to which such scheme or
fund relates.
(2) A company shall be deemed to be a company in which a Director owns five
(5) per cent. or more if and so long as (but only if and so long as) he and his
associates (as defined by the rules, where applicable, of the Designated Stock
Exchange), (either directly or indirectly) are the holders of or beneficially
interested in five (5) per cent. or more of any class of the equity share
capital of such company or of the voting rights available to members of such
company (or of any third company through which his interest is derived). For the
purpose of this paragraph there shall be disregarded any shares held by a
Director as bare or custodian trustee and in which
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he has no beneficial interest, any shares comprised in a trust in which the
Director's interest is in reversion or remainder if and so long as some other
person is entitled to receive the income thereof, and any shares comprised in an
authorised unit trust scheme in which the Director is interested only as a unit
holder.
(3) Where a company in which a Director together with his associates (as
defined by the rules, where applicable, of the Designated Stock Exchange) holds
five (5) per cent. or more is materially interested in a transaction, then that
Director shall also be deemed materially interested in such transaction.
(4) If any question shall arise at any meeting of the Board as to the
materiality of the interest of a Director (other than the chairman of the
meeting) or as to the entitlement of any Director (other than such chairman) to
vote and such question is not resolved by his voluntarily agreeing to abstain
from voting, such question shall be referred to the chairman of the meeting and
his ruling in relation to such other Director shall be final and conclusive
except in a case where the nature or extent of the interest of the Director
concerned as known to such Director has not been fairly disclosed to the Board.
If any question as aforesaid shall arise in respect of the chairman of the
meeting such question shall be decided by a resolution of the Board (for which
purpose such chairman shall not vote thereon) and such resolution shall be final
and conclusive except in a case where the nature or extent of the interest of
such chairman as known to such chairman has not been fairly disclosed to the
Board.
GENERAL POWERS OF THE DIRECTORS
104. (1) The business of the Company shall be managed and conducted by the
Board, which may pay all expenses incurred in forming and registering the
Company and may exercise all powers of the Company (whether relating to the
management of the business of the Company or otherwise) which are not by the
Statutes or by these Bye-laws required to be exercised by the Company in general
meeting, subject nevertheless to the provisions of the Statutes and of these
Bye-laws and to such regulations being not inconsistent with such provisions, as
may be prescribed by the Company in general meeting, but no regulations made by
the Company in general meeting shall invalidate any prior act of the Board which
would have been valid if such regulations had not been made. The general powers
given by this Bye-law shall not be limited or restricted by any special
authority or power given to the Board by any other Bye-law.
(2) Without prejudice to the general powers conferred by these Bye-laws it
is hereby expressly declared that the Board shall have the following powers:
(a) To give to any person the right or option of requiring at a future date
that an allotment shall be made to him of any share at par or at such
premium as may be agreed.
(b) To give to any Directors, officers or servants of the Company an
interest in any particular business or transaction or participation in
the profits thereof or in the general profits of the Company either in
addition to or in substitution for a salary or other remuneration.
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(c) To resolve that the Company be discontinued in Bermuda and continued in
a named country or jurisdiction outside Bermuda subject to the
provisions of the Act.
105. [Deleted]
106. The Board may by power of attorney appoint under the Seal any company, firm
or person or any fluctuating body of persons, whether nominated directly or
indirectly by the Board, to be the attorney or attorneys of the Company for such
purposes and with such powers, authorities and discretions (not exceeding those
vested in or exercisable by the Board under these Bye-laws) and for such period
and subject to such conditions as it may think fit, and any such power of
attorney may contain such provisions for the protection and convenience of
persons dealing with any such attorney as the Board may think fit, and may also
authorise any such attorney to sub-delegate all or any of the powers,
authorities and discretions vested in him. Such attorney or attorneys may, if so
authorised under the Seal of the Company, execute any deed or instrument under
their personal seal with the same effect as the affixation of the Company's
Seal.
107. Except as specified in Bye-law 130 or unless expressly authorized by the
Board in accordance with these Bye-laws, no Director or Officer may (a) enter
into any contract or deed or other agreement pursuant to which the Company is
obliged to make payment over such term or such amount as the Board may from time
to time determine, or (b) issue or agree to issue any share of the Company. The
Board may entrust to and confer upon any officer such powers, with such terms,
conditions and restrictions, as the Board in its discretion deems appropriate.
108. All cheque, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or transferable or not, and all receipts for
moneys paid to the Company shall be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, in such manner as the Board shall from
time to time by resolution determine. The Company's banking accounts shall be
kept with such banker or bankers as the Board shall from time to time determine.
109. (1) The Board may establish or concur or join with other companies (being
subsidiary companies of the Company or companies with which it is associated in
business) in establishing and making contributions out of the Company's moneys
to any schemes or funds for providing pensions, sickness or compassionate
allowances, life assurance or other benefits for employees (which expression as
used in this and the following paragraph shall include any Director or
ex-Director who may hold or have held any executive office or any office of
profit under the Company or any of its subsidiary companies) and ex-employees of
the Company and their dependents or any class or classes of such person.
(2) The Board may pay, enter into agreements to pay or make grants of
revocable or irrevocable, and either subject or not subject to any terms or
conditions, pensions or other benefits to employees and ex-employees and their
dependents, or to any of such persons, including pensions or benefits additional
to those, if any, to which such employees or ex-employees or their dependents
are or may become entitled under any such scheme or fund as mentioned in the
last preceding paragraph. Any such pension or benefit may, as the Board
considers desirable, be granted to an employee either before and in anticipation
of or upon or at any time after his actual retirement.
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BORROWING POWERS
110. The Board may exercise all the powers of the Company to raise or borrow
money and to mortgage or charge all or any part of the undertaking, property and
assets (present and future) and uncalled capital of the Company and, subject to
the Act, to issue debentures, bonds and other securities, whether outright or as
collateral security for any debt, liability or obligation of the Company or of
any third party.
111. Debentures, bonds and other securities may be made assignable free from any
equities between the Company and the person to whom the same may be issued.
112. Any debentures, bonds or other securities may be issued at a discount
(other than shares), premium or otherwise and with any special privileges as to
redemption, surrender, drawings, allotment of shares, attending and voting at
general meetings of the Company, appointment of Directors and otherwise.
113. (1) Where any uncalled capital of the Company is charged, all persons
taking any subsequent charge thereon shall take the same subject to such prior
charge, and shall not be entitled, by notice to the members or otherwise, to
obtain priority over such prior charge.
(2) The Board shall cause a proper register to be kept, in accordance with
the provisions of the Act, of all charges specifically affecting the property of
the Company and of any series of debentures issued by the Company and shall duly
comply with the requirements of the Act in regard to the registration of charges
and debentures therein specified and otherwise.
PROCEEDINGS OF THE DIRECTORS
114. The Board may meet for the despatch of business, adjourn and otherwise
regulate its meetings as it considers appropriate. Questions arising at any
meeting shall be determined by a majority of votes. A majority of the meetings
of the Board of Directors of the Company that are held in any given fiscal year
of the Company shall be held outside the United States.
115. A meeting of the Board may be convened by the Secretary on request of a
Director or by any Director. The Secretary shall convene a meeting of the Board
of which notice may be given in writing or by telephone or in such other manner
as the Board may from time to time determine whenever he shall be required so to
do by the President or Chairman, as the case may be, or any Director. Any
Director may waive notice of any meeting either prospectively or
retrospectively.
116. (1) The quorum necessary for the transaction of the business of the Board
may be fixed by the Board and, unless so fixed at any other number, shall be two
(2). An alternate Director shall be counted in a quorum in the case of the
absence of a Director for whom he is the alternate provided that he shall not be
counted more than once for the purpose of determining whether or not a quorum is
present.
(2) Directors may participate in any meeting of the Board by means of a
conference telephone or other communications equipment through which all persons
participating in the meeting can communicate with each other simultaneously and
instantaneously and, for the purpose
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of counting a quorum, such participation shall constitute presence at a Meeting
as if those participating were present in person.
(3) Any Director who ceases to be a Director at a Board meeting may
continue to be present and to act as a Director and be counted in the quorum
until the termination of such Board meeting if no other Director objects and if
otherwise a quorum of Directors would not be present.
117. The continuing Directors or a sole continuing Director may act
notwithstanding any vacancy in the Board but, if and so long as the number of
Directors is reduced below the minimum number fixed by or in accordance with
these Bye-laws, the continuing Directors or Director, notwithstanding that the
number of Directors is below the number fixed by or in accordance with these
Bye-laws as the quorum or that there is only one continuing Director, may act
for the purpose of filling vacancies in the Board or of summoning general
meetings of the Company but not for any other purpose.
118. The Board may elect a chairman and one or more deputy chairman of its
meetings and determine the period for which they are respectively to hold such
office. If no chairman or deputy chairman is elected, or if at any meeting
neither the chairman nor any deputy chairman is present within five (5) minutes
after the time appointed for holding the same, the Directors present may choose
one of their number to be chairman of the meeting.
119. A meeting of the Board at which a quorum is present shall be competent to
exercise all the powers, authorities and discretions for the time being vested
in or exercisable by the Board.
120. (1) The Board may delegate any of its powers, authorities and discretions
to committees, consisting of such Director, officer, Directors or officers as it
thinks fit, and they may, from time to time, revoke such delegation or revoke
the appointment of and discharge any such committees either wholly or in part,
and either as to persons or purposes. Any committee so formed shall, in the
exercise of the powers, authorities and discretions so delegated, conform to any
regulations which may be imposed on it by the Board.
(2) All acts done by any such committee in conformity with such
regulations, and in fulfilment of the purposes for which it was appointed, but
not otherwise, shall have like force and effect as if done by the Board, and the
Board shall have power, with the consent of the Company in general meeting, to
remunerate the members of any such committee, and charge such remuneration to
the current expenses of the Company.
121. The meetings and proceedings of any committee consisting of two or more
members shall be governed by the provisions contained in these Bye-laws for
regulating the meetings and proceedings of the Board so far as the same are
applicable and are not superseded by any regulations imposed by the Board under
the last preceding Bye-law.
122. A resolution in writing signed by all the Directors except such as are
temporarily unable to act through ill-health or disability, and all the
alternate Directors, if appropriate, whose appointors are temporarily unable to
act as aforesaid shall (provided that such number is sufficient to constitute a
quorum and further provided that a copy of such resolution has been given or the
contents thereof communicated to all the Directors for the time being entitled
to receive notices of Board meetings in the same manner as notices of meetings
are required to be given by these
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Bye-laws) be as valid and effectual as if a resolution had been passed at a
meeting of the Board duly convened and held. Such resolution may be contained in
one document or in several documents in like form each signed by one or more of
the Directors or alternate Directors and for this purpose a facsimile signature
of a Director or an alternate Director shall be treated as valid.
123. All acts bona fide done by the Board or by any committee or by any person
acting as a Director or members of a committee, shall, notwithstanding that it
is afterwards discovered that there was some defect in the appointment of any
member or the Board or such committee or person acting as aforesaid or that they
or any of them were disqualified or had vacated office, be as valid as if every
such person had been duly appointed and was qualified and had continued to be a
Director or member of such committee.
MANAGERS
124. The Board may from time to time appoint a General Manager, a Manager or
Managers of the Company and may fix his or their remuneration either by way of
salary or commission or by conferring the right to participation in the profits
of the Company or by a combination of two or more of these modes and pay the
working expenses of any of the staff of the General Manager, Manager or Managers
who may be employed by him or them upon the business of the Company.
125. The appointment of such General Manager, Manager or Managers may be for
such period as the Board may decide, and the Board may confer upon him or them
all or any of the powers of the Board as they may think fit.
126. The Board may enter into such agreement or agreements with any such General
Manager, Manager or Managers upon such terms and conditions in all respects as
the Board may in their absolute discretion think fit, including a power for such
General Manager, Manager or Managers to appoint an Assistant Manager or Managers
or other employees whatsoever under them for the purpose of carrying on the
business of the Company.
OFFICERS
127. (1) The officers of the Company shall consist of the president,
vice-president, and Secretary and such additional officers (who may or may not
be Directors) as the Board may from time to time determine, all of whom shall be
deemed to be officers for the purposes of the Act and these Bye-laws as well as
solely for the purposes of the Act, the chairman, deputy chairman and Directors.
(2) The Directors shall, as soon as may be after each appointment or
election of Directors, elect amongst the Directors a president and a
vice-president or a chairman and a deputy chairman; and if more than one (1)
Director is proposed for either of these offices, the election to such office
shall take place in such manner as the Directors may determine.
(3) The officers shall receive such remuneration as the Directors may from
time to time determine.
(4) Where the Company does not have a quorum of Directors ordinarily
resident in Bermuda, the Company shall in accordance with the Act appoint and
maintain a resident
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representative ordinarily resident in Bermuda and the resident representative
shall maintain an office in Bermuda and comply with the provisions of the Act.
The Company shall provide the resident representative with such documents
and information as the resident representative may require in order to be able
to comply with the provisions of the Act.
The resident representative shall be entitled to have notice of, attend and
be heard at any Directors' meetings or general meeting of the Company.
128. (1) The Secretary and additional officers, if any, shall be appointed by
the Board and shall hold office on such terms and for such period as the Board
may determine. If thought fit, two (2) or more persons may be appointed as joint
Secretaries. The Board may also appoint from time to time on such terms as it
thinks fit one or more assistant or deputy Secretaries.
(2) The Secretary shall attend all meetings of the Members and shall keep
correct minutes of such meetings and enter the same in the proper books provided
for the purpose. He shall perform such other duties as are prescribed by the Act
or these Bye-laws or as may be prescribed by the Board.
129. The President or the Chairman, as the case may be, shall act as chairman at
all meetings of the Members and of the Directors at which he is present. In his
absence a chairman shall be appointed or elected by those present at the
meeting.
130. The officers of the Company shall have such powers and perform such duties
in the management, business and affairs of the Company as may be delegated to
them by the Directors from time to time. In addition, the President of the
Company shall have the power and is expressly authorized to enter into any
contract, deed or other agreement that obliges the Company to make payments (or
provide services or goods) in an amount (or having a fair value) not exceeding
US$250,000 or, of such obligations is contemplated by and within the limits
established by an Annual Budget and Operating Plan approved by the Board,
obligates the Company to make payments (or provide services or goods) in an
amount (or having a fair value) not exceeding US$1,000,000.
131. A provision of the Act or of these Bye-laws requiring or authorising a
thing to be done by or to a Director and the Secretary shall not be satisfied by
its being done by or to the same person acting both as Director and as or in
place of the Secretary.
REGISTER OF DIRECTORS AND OFFICERS
132. (1) The Board shall cause to be kept in one or more books at its Office a
Register of Directors and officers and shall enter therein the following
particulars with respect to each Director and officer, that is to say:
(a) his or her first name and surname; and
(b) his or her address.
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(2) The Board shall within a period of fourteen (14) days from the
occurrence of -
(a) any change among its Directors and officers; or
(b) any change in the particulars contained in the Register of Directors
and officers,
cause to be entered on the Register of Directors and officers the particulars of
such change and of the date on which it occurred.
(3) The Register of Directors and officers shall be open to inspection by
members of the public without charge at the Office between 10:00 a.m. and 12:00
noon on every business day.
(4) In this Bye-law "officer" has the meaning ascribed to it in Section
92A(7) of the Act.
MINUTES
133. The Board shall cause Minutes to be duly entered in books provided for the
purpose:
(a) of all elections and appointments of Directors and officers;
(b) of the names of the Directors present at each meeting of the Directors
and of any committee of the Directors;
(c) of all resolutions and proceedings of each general meeting of the
Members, meetings of the Board and meetings of committees of the Board.
SEAL
134. (1) The Company shall have one or more Seals, as the Board may determine.
For the purpose of sealing documents creating or evidencing securities issued by
the Company, the Company may have a securities seal which is a facsimile of the
Seal of the Company with the addition of the words "Securities Seal" on its face
or in such other form as the Board may approve. The Board shall provide for the
custody of each Seal and no Seal shall be used without the authority of the
Board or of a committee of the Board authorised by the Board in that behalf.
Subject as otherwise provided in these Bye-laws, any instrument to which a Seal
is affixed shall be signed autographically by one Director and the Secretary or
by two Directors or by such other person (including a Director) or persons as
the Board may appoint, either generally or in any particular case, save that as
regards any certificates for shares or debentures or other securities of the
Company the Board may by resolution determine that such signatures or either of
them shall be dispensed with or affixed by some method or system of mechanical
signature. Every instrument executed in manner provided by this Bye-law shall be
deemed to be sealed and executed with the authority of the Board previously
given.
(2) Where the Company has a Seal for use abroad, the Board may by writing
under the Seal appoint any agent or committee abroad to be the duly authorised
agent of the Company for the purpose of affixing and using such Seal and the
Board may impose restrictions on the use thereof as may be thought fit. Wherever
in these Bye-laws reference is made to the Seal, the
- 37 -
reference shall, when and so far as may be applicable, be deemed to include any
such other Seal as aforesaid.
AUTHENTICATION OF DOCUMENTS
135. Any Director or the Secretary or any person appointed by the Board for the
purpose may authenticate any documents affecting the constitution of the Company
and any resolution passed by the Company or the Board or any committee, and any
books, records, documents and accounts relating to the business of the Company,
and to certify copies thereof or extracts therefrom as true copies or extracts,
and if any books, records, documents or accounts are elsewhere than at the
Office or the head office the local manager or other officer of the Company
having the custody thereof shall be deemed to be a person so appointed by the
Board. A document purporting to be a copy of a resolution, or an extract from
the minutes of a meeting, of the Company or of the Board or any committee which
is so certified shall be conclusive evidence in favour of all persons dealing
with the Company upon the faith thereof that such resolution has been duly
passed or, as the case may be, that such minutes or extract is a true and
accurate record of proceedings at a duly constituted meeting.
DESTRUCTION OF DOCUMENTS
136. The Company shall be entitled to destroy the following documents at the
following times:
(a) any share certificate which has been cancelled at any time after the
expiry of one (1) year from the date of such cancellation;
(b) any dividend mandate or any variation or cancellation thereof or any
notification of change of name or address at any time after the expiry
of two (2) years from the date such mandate variation cancellation or
notification was recorded by the Company;
(c) any instrument of transfer of shares which has been registered at any
time after the expiry of seven (7) years from the date of registration;
(d) any allotment letters after the expiry of seven (7) years from the date
of issue thereof; and
(e) copies of powers of attorney, grants of probate and letters of
administration at any time after the expiry of seven (7) years after
the account to which the relevant power of attorney, grant of probate
or letters of administration related has been closed;
and it shall conclusively be presumed in favour of the Company that every entry
in the Register purporting to be made on the basis of any such documents so
destroyed was duly and properly made and every share certificate so destroyed
was a valid certificate duly and properly cancelled and that every instrument of
transfer so destroyed was a valid and effective instrument duly and properly
registered and that every other document destroyed hereunder was a valid and
effective document in accordance with the recorded particulars thereof in the
books or records of the
- 38 -
Company. Provided always that: (1) the foregoing provisions of this Bye-law
shall apply only to the destruction of a document in good faith and without
express notice to the Company that the preservation of such document was
relevant to a claim; (2) nothing contained in this Bye-law shall be construed as
imposing upon the Company any liability in respect of the destruction of any
such document earlier than as aforesaid or in any case where the conditions of
proviso (1) above are not fulfilled; and (3) references in this Bye-law to the
destruction of any document include references to its disposal in any manner.
DIVIDENDS AND OTHER PAYMENTS
137. Subject to the Act, the Company in General Meeting may from time to time
declare dividends in any currency to be paid to the Members but no dividend
shall be declared in excess of the amount recommended by the Board. The Company
in general meeting may also make a distribution to the Members out of any
contributed surplus (as ascertained in accordance with the Act).
138. No dividend shall be paid or distribution made out of contributed surplus
if to do so would render the Company unable to pay its liabilities as they
become due or the realisable value of its assets would thereby become less than
the aggregate of its liabilities and its issued share capital and share premium
accounts.
139. Except in so far as the rights attaching to, or the terms of issue of, any
share otherwise provide:
(a) all dividends shall be declared and paid according to the amounts paid
up on the shares in respect of which the dividend is paid, but no
amount paid up on a share in advance of calls shall be treated for the
purposes of this Bye-law as paid up on the share; and
(b) all dividends shall be apportioned and paid pro rata according to the
amounts paid up on the shares during any portion or portions of the
period in respect of which the dividend is paid.
140. The Board may from time to time pay to the Members such interim dividends
as appear to the Board to be justified by the profits of the Company and in
particular (but without prejudice to the generality of the foregoing) if at any
time the share capital of the Company is divided into different classes, the
Board may pay such interim dividends in respect of those shares in the capital
of the Company which confer on the holders thereof deferred or non-preferential
rights as well as in respect of those shares which confer on the holders thereof
preferential rights with regard to dividend and provided that the Board acts
bona fide the Board shall not incur any responsibility to the holders of shares
conferring any preference for any damage that they may suffer by reason of the
payment of an interim dividend on any shares having deferred or non-preferential
rights and may also pay any fixed dividend which is payable on any shares of the
Company half-yearly or on any other dates, whenever such profits, in the opinion
of the Board, justifies such payment.
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141. The Board may deduct from any dividend or other moneys payable to a Member
by the Company on or in respect of any shares all sums of money (if any)
presently payable by him to the Company on account of calls or otherwise.
142. No dividend or other moneys payable by the Company on or in respect of any
share shall bear interest against the Company.
143. Any dividend, interest or other sum payable in cash to the holder of shares
may be paid by cheque or warrant sent through the post addressed to the holder
at his registered address or, in the case of joint holders, addressed to the
holder whose name stands first in the Register in respect of the shares at his
address as appearing in the Register or addressed to such person and at such
address as the holder or joint holders may in writing direct. Every such cheque
or warrant shall, unless the holder or joint holders otherwise direct, be made
payable to the order of the holder or, in the case of joint holders, to the
order of the holder whose name stands first on the Register in respect of such
shares, and shall be sent at his or their risk and payment of the cheque or
warrant by the bank on which it is drawn shall constitute a good discharge to
the Company notwithstanding that it may subsequently appear that the same has
been stolen or that any endorsement thereon has been forged. Any one of two or
more joint holders may give effectual receipts for any dividends or other moneys
payable or property distributable in respect of the shares held by such joint
holders.
144. All dividends or bonuses unclaimed for one (1) year after having been
declared may be invested or otherwise made use of by the Board for the benefit
of the Company until claimed. Any dividend or bonuses unclaimed after a period
of six (6) years from the date of declaration shall be forfeited and shall
revert to the Company. The payment by the Board of any unclaimed dividend or
other sums payable on or in respect of a share into a separate account shall not
constitute the Company a trustee in respect thereof.
145. Whenever the Board or the Company in general meeting has resolved that a
dividend be paid or declared, the Board may further resolve that such dividend
be satisfied wholly or in part by the distribution of specific assets of any
kind and in particular of paid up shares, debentures or warrants to subscribe
securities of the Company or any other company, or in any one or more of such
ways, and where any difficulty arises in regard to the distribution the Board
may settle the same as it thinks expedient, and in particular may issue
certificates in respect of fractions of shares, disregard fractional
entitlements or round the same up or down, and may fix the value for
distribution of such specific assets, or any part thereof, and may determine
that cash payments shall be made to any members upon the footing of the value so
fixed in order to adjust the rights of all parties, and may vest any such
specific assets in trustees as may seem expedient to the Board and may appoint
any person to sign any requisite instruments of transfer and other documents on
behalf of the persons entitled to the dividend, and such appointment shall be
effective and binding on the Members. The Board may resolve that no such assets
shall be made available to Members with registered addresses in any particular
territory or territories where, in the absence of a registration statement or
other special formalities, such distribution of assets would or might, in the
opinion of the Board, be unlawful or impracticable and in such event the only
entitlement of the Members aforesaid shall be to receive cash payments as
aforesaid. Members affected as a result of the foregoing sentence shall not be
or be deemed to be a separate class of Members for any purpose whatsoever.
- 40 -
146. (1) Whenever the Board or the Company in general meeting has resolved that
a dividend be paid or declared on any class of the share capital of the Company,
the Board may further resolve either:
(a) that such dividend be satisfied wholly or in part in the form of an
allotment of shares credited as fully paid up, provided that the
shareholders entitled thereto will be entitled to elect to receive such
dividend (or part thereof if the Board so determines) in cash in lieu
of such allotment. In such case, the following provisions shall apply:
(i) the basis of any such allotment shall be determined by the Board;
(ii) the Board, after determining the basis of allotment, shall give
not less than two (2) weeks' notice in writing to the holders of
the relevant shares of the right of election accorded to them and
shall send with such notice forms of election and specify the
procedure to be followed and the place at which and the latest
date and time by which duly completed forms of election must be
lodged in order to be effective;
(iii) the right of election may be exercised in respect of the whole or
part of that portion of the dividend in respect of which the
right of election has been accorded; and
(iv) the dividend (or that part of the dividend to be satisfied by the
allotment of shares as aforesaid) shall not be payable in cash on
shares in respect whereof the cash election has not been duly
exercised ("the non-elected shares") and in satisfaction thereof
shares of the relevant class shall be allotted credited as fully
paid up to the holders of the non-elected shares on the basis of
allotment determined as aforesaid and for such purpose the Board
shall capitalise and apply out of any part of the undivided
profits of the Company (including profits carried and standing to
the credit of any reserves or other special account other than
the Subscription Rights Reserve) as the Board may determine, such
sum as may be required to pay up in full the appropriate number
of shares of the relevant class for allotment and distribution to
and amongst the holders of the non-elected shares on such basis;
or
(b) that the shareholders entitled to such dividend shall be entitled to
elect to receive an allotment of shares credited as fully paid up in
lieu of the whole or such part of the dividend as the Board may think
fit. In such case, the following provisions shall apply:
(i) the basis of any such allotment shall be determined by the Board;
(ii) the Board, after determining the basis of allotment, shall give
not less than two (2) weeks' notice in writing to the holders of
the relevant shares of the right of election accorded to them and
shall send with such notice forms of election and specify the
procedure to be followed and the
- 41 -
place at which and the latest date and time by which duly
completed forms of election must be lodged in order to be
effective;
(iii) the right of election may be exercised in respect of the whole or
part of that portion of the dividend in respect of which the
right of election has been accorded; and
(iv) the dividend (or that part of the dividend in respect of which a
right of election has been accorded) shall not be payable in cash
on shares in respect whereof the share election has been duly
exercised ("the elected shares") and in lieu thereof shares of
the relevant class shall be allotted credited as fully paid up to
the holders of the elected shares on the basis of allotment
determined as aforesaid and for such purpose the Board shall
capitalise and apply out of any part of the undivided profits of
the Company (including profits carried and standing to the credit
of any reserves or other special account other than the
Subscription Rights Reserve) as the Board may determine, such sum
as may be required to pay up in full the appropriate number of
shares of the relevant class for allotment and distribution to
and amongst the holders of the elected shares on such basis.
(2) (a) The shares allotted pursuant to the provisions of paragraph (1) of
of this Bye-law shall rank pari passu in all respects with shares
of the same class (if any) then in issue save only as regards
participation in the relevant dividend or in any other
distributions, bonuses or rights paid, made, declared or announced
prior to or contemporaneously with the payment or declaration of
the relevant dividend unless, contemporaneously with the
announcement by the Board of their proposal to apply the provisions
of sub-paragraph (a) or (b) of paragraph (2) of this Bye-law in
relation to the relevant dividend or contemporaneously with their
announcement of the distribution, bonus or rights in question, the
Board shall specify that the shares to be allotted pursuant to the
provisions of paragraph (1) of this Bye-law shall rank for
participation in such distribution, bonus or rights.
(b) The Board may do all acts and things considered necessary or
expedient to give effect to any capitalisation pursuant to the
provisions of paragraph (1) of this Bye-law, with full power to the
Board to make such provisions as it thinks fit in the case of
shares becoming distributable in fractions (including provisions
whereby, in whole or in part, fractional entitlements are
aggregated and sold and the net proceeds distributed to those
entitled, or are disregarded or rounded up or down or whereby the
benefit of fractional entitlements accrues to the Company rather
than to the members concerned). The Board may authorise any person
to enter into on behalf of all Members interested, an agreement
with the Company providing for such capitalisation and matters
incidental thereto and any agreement made pursuant to such
authority shall be effective and binding on all concerned.
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(3) The Company may upon the recommendation of the Board by ordinary
resolution resolve in respect of any one particular dividend of the Company that
notwithstanding the provisions of paragraph (1) of this Bye-law a dividend may
be satisfied wholly in the form of an allotment of shares credited as fully paid
up without offering any right to shareholders to elect to receive such dividend
in cash in lieu of such allotment.
(4) The Board may on any occasion determine that rights of election and the
allotment of shares under paragraph (1) of this Bye-law shall not be made
available or made to any shareholders with registered addresses in any territory
where, in the absence of a registration statement or other special formalities,
the circulation of an offer of such rights of election or the allotment of
shares would or might, in the opinion of the Board, be unlawful or
impracticable, and in such event the provisions aforesaid shall be read and
construed subject to such determination. Members affected as a result of the
foregoing sentence shall not be or be deemed to be a separate class of Members
for any purpose whatsoever.
(5) Any resolution declaring a dividend on shares of any class, whether a
resolution of the Company in general meeting or a resolution of the Board, may
specify that the same shall be payable or distributable to the persons
registered as the holders of such shares at the close of business on a
particular date, notwithstanding that it may be a date prior to that on which
the resolution is passed, and thereupon the dividend shall be payable or
distributable to them in accordance with their respective holdings so
registered, but without prejudice to the rights inter se in respect of such
dividend of transferors and transferees of any such shares. The provisions of
this Bye-law shall mutatis mutandis apply to bonuses, capitalisation issues,
distributions of realised capital profits or offers or grants made by the
Company to the Members.
RESERVES
147. Before recommending any dividend, the Board may set aside out of the
profits of the Company such sums as it determines as reserves which shall, at
the discretion of the Board, be applicable for any purpose to which the profits
of the Company may be properly applied and pending such application may, also at
such discretion, either be employed in the business of the Company or be
invested in such investments as the Board may from time to time think fit and so
that it shall not be necessary to keep any investments constituting the reserve
or reserves separate or distinct from any other investments of the Company. The
Board may also without placing the same to reserve carry forward any profits
which it may think prudent not to distribute.
CAPITALISATION
148. The Company may, upon the recommendation of the Board, at any time and from
time to time pass an ordinary resolution to the effect that it is desirable to
capitalise all or any part of any amount for the time being standing to the
credit of any reserve or fund (including the profit and loss account) whether or
not the same is available for distribution and accordingly that such amount be
set free for distribution among the Members or any class of members who would be
entitled thereto if it were distributed by way of dividend and in the same
proportions, on the footing that the same is not paid in cash but is applied
either in or towards paying up the amounts for the time being unpaid on any
shares in the Company held by such Members respectively or in paying up in full
unissued shares, debentures or other obligations of the Company, to be allotted
and distributed credited as fully paid up among such members, or partly in one
way and
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partly in the other, and the Board shall give effect to such resolution provided
that, for the purposes of this Bye-law and subject to Section 40(2A) of the Act,
a share premium account and any reserve or fund representing unrealised profits,
may be applied only in paying up in full unissued shares of the Company to be
allotted to such Members credited as fully paid. In carrying sums to reserve and
in applying the same the Board shall comply with the provisions of the Act.
149. The Board may settle, as it considers appropriate, any difficulty arising
in regard to any distribution under the last preceding Bye-law and in particular
may issue certificates in respect of fractions of shares or authorise any person
to sell and transfer any fractions or may resolve that the distribution should
be as nearly as may be practicable in the correct proportion but not exactly so
or may ignore fractions altogether, and may determine that cash payments shall
be made to any Members in order to adjust the rights of all parties, as may seem
expedient to the Board. The Board may appoint any person to sign on behalf of
the persons entitled to participate in the distribution any contract necessary
or desirable for giving effect thereto and such appointment shall be effective
and binding upon the Members.
SUBSCRIPTION RIGHTS RESERVE
150. The following provisions shall have effect to the extent that they are not
prohibited by and are in compliance with the Act:
(1) If, so long as any of the rights attached to any warrants issued by the
Company to subscribe for shares of the Company shall remain exercisable, the
Company does any act or engages in any transaction which, as a result of any
adjustments to the subscription price in accordance with the provisions of the
conditions of the warrants, would reduce the subscription price to below the par
value of a share, then the following provisions shall apply:
(a) as from the date of such act or transaction the Company shall establish
and thereafter (subject as provided in this Bye-law) maintain in
accordance with the provisions of this Bye-law a reserve (the
"Subscription Rights Reserve") the amount of which shall at no time be
less than the sum which for the time being would be required to be
capitalised and applied in paying up in full the nominal amount of the
additional shares required to be issued and allotted credited as fully
paid pursuant to sub- paragraph (c) below on the exercise in full of
all the subscription rights outstanding and shall apply the
Subscription Rights Reserve in paying up such additional shares in full
as and when the same are allotted;
(b) the Subscription Rights Reserve shall not be used for any purpose other
than that specified above unless all other reserves of the Company
(other than share premium account) have been extinguished and will then
only be used to make good losses of the Company if and so far as is
required by law;
(c) upon the exercise of all or any of the subscription rights represented
by any warrant, the relevant subscription rights shall be exercisable
in respect of a nominal amount of shares equal to the amount in cash
which the holder of such warrant is required to pay on exercise of the
subscription rights represented thereby (or, as the case may be the
relevant portion thereof in the event of a partial exercise of the
subscription rights) and, in addition, there shall be allotted
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in respect of such subscription rights to the exercising warrant
holder, credited as fully paid, such additional nominal amount of
shares as is equal to the difference between:
(i) the said amount in cash which the holder of such warrant is
required to pay on exercise of the subscription rights represented
thereby (or, as the case may be, the relevant portion thereof in
the event of a partial exercise of the subscription rights); and
(ii) the nominal amount of shares in respect of which such subscription
rights would have been exercisable having regard to the provisions
of the conditions of the warrants, had it been possible for such
subscription rights to represent the right to subscribe for shares
at less than par
and immediately upon such exercise so much of the sum standing to the
credit of the Subscription Rights Reserve as is required to pay up in
full such additional nominal amount of shares shall be capitalised and
applied in paying up in full such additional nominal amount of shares
which shall forthwith be allotted credited as fully paid to the
exercising warrant holders; and
(d) if, upon the exercise of the subscription rights represented by any
warrant, the amount standing to the credit of the Subscription Rights
Reserve is not sufficient to pay up in full such additional nominal
amount of shares equal to such difference as aforesaid to which the
exercising warrant holder is entitled, the Board shall apply any
profits or reserves then or thereafter becoming available (including,
to the extent permitted by law, share premium account) for such purpose
until such additional nominal amount of shares is paid up and allotted
as aforesaid and until then no dividend or other distribution shall be
paid or made on the fully paid shares of the Company then in issue.
Pending such payment and allotment, the exercising warrant holder shall
be issued by the Company with a certificate evidencing his right to the
allotment of such additional nominal amount of shares. The rights
represented by any such certificate shall be in registered form and
shall be transferable in whole or in part in units of one share in the
like manner as the shares for the time being are transferable, and the
Company shall make such arrangements in relation to the maintenance of
a register therefor and other matters in relation thereto as the Board
may think fit and adequate particulars thereof shall be made known to
each relevant exercising warrant holder upon the issue of such
certificate.
(2) Shares allotted pursuant to the provisions of this Bye-law shall rank
pari passu in all respects with the other shares allotted on the relevant
exercise of the subscription rights represented by the warrant concerned.
Notwithstanding anything contained in paragraph (1) of this Bye-law, no fraction
of any share shall be allotted on exercise of the subscription rights.
(3) The provision of this Bye-law as to the establishment and maintenance
of the Subscription Rights Reserve shall not be altered or added to in any way
which would vary or abrogate, or which would have the effect of varying or
abrogating the provisions for the benefit
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of any warrant holder or class of warrant holders under this Bye-law without the
sanction of a special resolution of such warrant holders or class of warrant
holders.
(4) A certificate or report by the auditors for the time being of the
Company as to whether or not the Subscription Rights Reserve is required to be
established and maintained and if so the amount thereof so required to be
established and maintained, as to the purposes for which the Subscription Rights
Reserve has been used, as to the extent to which it has been used to make good
losses of the Company, as to the additional nominal amount of shares required to
be allotted to exercising warrant holders credited as fully paid, and as to any
other matter concerning the Subscription Rights Reserve shall (in the absence of
manifest error) be conclusive and binding upon the Company and all warrant
holders and shareholders.
ACCOUNTING RECORDS
151. The Board shall cause true accounts to be kept of the sums of money
received and expended by the Company, and the matters in respect of which such
receipt and expenditure take place, and of the property, assets, credits and
liabilities of the Company and of all other matters required by the Act or
necessary to give a true and fair view of the Company's affairs and to explain
its transactions.
152. The accounting records shall be kept at the Office or, subject to the Act,
at such other place or places as the Board decides and shall always be open to
inspection by the Directors of the Company. No Member (other than a Director of
the Company) shall have any right of inspecting any accounting record or book or
document of the Company except as conferred by law or authorised by the Board or
the Company in general meeting.
153. Subject to Section 88 of the Act, a printed copy of the Directors' report,
accompanied by the balance sheet and profit and loss account, including every
document required by law to be annexed thereto, made up to the end of the
applicable financial year and containing a summary of the assets and liabilities
of the Company under convenient heads and a statement of income and expenditure,
together with a copy of the Auditors' report, shall be sent to each person
entitled thereto at least twenty-one (21) days before the date of the general
meeting and laid before the Company in general meeting in accordance with the
requirements of the Act provided that this Bye-law shall not require a copy of
those documents to be sent to any person whose address the Company is not aware
or to more than one of the joint holders of any shares or debentures.
AUDIT
154. (1) Subject to Section 88 of the Act, at the annual general meeting or at a
subsequent special general meeting in each year, the Members shall appoint an
auditor to audit the accounts of the Company and such auditor shall hold office
until the Members appoint another auditor. Such auditor may be a Member but no
Director or officer or employee of the Company shall, during his continuance in
office, be eligible to act as an auditor of the Company.
(2) Subject to Section 89 of the Act, a person, other than a retiring
Auditor, shall not be capable of being appointed Auditor at an annual general
meeting unless notice in writing of an intention to nominate that person to the
office of Auditor has been given not less than fourteen
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(14) days before the annual general meeting and furthermore, the Company shall
send a copy of any such notice to the retiring Auditor.
(3) The Members may, at any general meeting convened and held in accordance
with these Bye-laws, by special resolution remove the Auditor at any time before
the expiration of his term of office and shall by ordinary resolution at that
meeting appoint another Auditor in his stead for the remainder of his term.
155. Subject to Section 88 of the Act the accounts of the Company shall be
audited at least once in every year.
156. The remuneration of the Auditor shall be fixed by the Company in general
meeting or in such manner as the Members may determine.
157. If the office of auditor becomes vacant by the resignation or death of the
Auditor, or by his becoming incapable of acting by reason of illness or other
disability at a time when his services are required, the Directors shall as soon
as practicable convene a special general meeting to fill the vacancy.
158. The Auditor shall at all reasonable times have access to all books kept by
the Company and to all accounts and vouchers relating thereto; and he may call
on the Directors or officers of the Company for any information in their
possession relating to the books or affairs of the Company.
159. The statement of income and expenditure and the balance sheet provided for
by these Bye-Laws shall be examined by the Auditor and compared by him with the
books, accounts and vouchers relating thereto; and he shall make a written
report thereon stating whether such statement and balance sheet are drawn up so
as to present fairly the financial position of the Company and the results of
its operations for the period under review and, in case information shall have
been called for from Directors or officers of the Company, whether the same has
been furnished and has been satisfactory. The financial statements of the
Company shall be audited by the Auditor in accordance with generally accepted
auditing standards. The Auditor shall make a written report thereon in
accordance with generally accepted auditing standards and the report of the
Auditor shall be submitted to the Members in general meeting. The generally
accepted auditing standards referred to herein may be those of a country or
jurisdiction other than Bermuda. If so, the financial statements and the report
of the Auditor should disclose this fact and name such country or jurisdiction.
NOTICES
160. Any Notice from the Company to a Member shall be given in writing or by
cable, telex or facsimile transmission message and any such Notice and (where
appropriate) any other document may be served or delivered by the Company on or
to any Member either personally or by sending it through the post in a prepaid
envelope addressed to such Member at his registered address as appearing in the
Register or at any other address supplied by him to the Company for the purpose
or, as the case may be, by transmitting it to any such address or transmitting
it to any telex or facsimile transmission number supplied by him to the Company
for the giving of Notice to him or which the person transmitting the notice
reasonably and bona fide believes at the
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relevant time will result in the Notice being duly received by the Member or may
also be served by advertisement in appointed newspapers (as defined in the Act)
or in accordance with the requirements of the Designated Stock Exchange. In the
case of joint holders of a share all notices shall be given to that one of the
joint holders whose name stands first in the Register and notice so given shall
be deemed a sufficient service on or delivery to all the joint holders.
161. Any Notice or other document:
(a) if served or delivered by post, shall be sent airmail where appropriate
and shall be deemed to have been served or delivered on the day
following that on which the envelope containing the same, properly
prepaid and addressed, is put into the post; in proving such service or
delivery it shall be sufficient to prove that the envelope or wrapper
containing the notice or document was properly addressed and put into
the post and a certificate in writing signed by the Secretary or other
officer of the Company or other person appointed by the Board that the
envelope or wrapper containing the notice or other document was so
addressed and put into the post shall be conclusive evidence thereof;
and
(b) if served or delivered in any other manner contemplated by these
Bye-laws, shall be deemed to have been served or delivered at the time
of personal service or delivery or, as the case may be, at the time of
the relevant despatch or transmission; and in proving such service or
delivery a certificate in writing signed by the Secretary or other
officer of the Company or other person appointed by the Board as to the
fact and time of such service, delivery, despatch or transmission shall
be conclusive evidence thereof.
162. (1) Any Notice or other document delivered or sent by post to or left at
the registered address of any Member in pursuance of these Bye-laws shall,
notwithstanding that such Member is then dead or bankrupt or that any other
event has occurred, and whether or not the Company has notice of the death or
bankruptcy or other event, be deemed to have been duly served or delivered in
respect of any share registered in the name of such Member as sole or joint
holder unless his name shall, at the time of the service or delivery of the
notice or document, have been removed from the Register as the holder of the
share, and such service or delivery shall for all purposes be deemed a
sufficient service or delivery of such Notice or document on all persons
interested (whether jointly with or as claiming through or under him) in the
share.
(2) A notice may be given by the Company to the person entitled to a share
in consequence of the death, mental disorder or bankruptcy of a Member by
sending it through the post in a prepaid letter, envelope or wrapper addressed
to him by name, or by the title of representative of the deceased, or trustee of
the bankrupt, or by any like description, at the address, if any, supplied for
the purpose by the person claiming to be so entitled, or (until such an address
has been so supplied) by giving the notice in any manner in which the same might
have been given if the death, mental disorder or bankruptcy had not occurred.
(3) Any person who by operation of law, transfer or other means whatsoever
shall become entitled to any share shall be bound by every notice in respect of
such share which prior to his name and address being entered on the Register
shall have been duly given to the person from whom he derives his title to such
share.
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SIGNATURES
163. For the purposes of these Bye-laws, a cable or telex or facsimile
transmission message purporting to come from a holder of shares or, as the case
may be, a Director or alternate Director, or, in the case of a corporation which
is a holder of shares from a director or the secretary thereof or a duly
appointed attorney or duly authorised representative thereof for it and on its
behalf, shall in the absence of express evidence to the contrary available to
the person relying thereon at the relevant time be deemed to be a document or
instrument in writing signed by such holder or Director or alternate Director in
the terms in which it is received.
WINDING UP
164. (1) The Board shall have power in the name and on behalf of the Company to
present a petition to the court for the Company to be wound up.
(2) A resolution that the Company be wound up by the court or be wound up
voluntarily shall be a special resolution.
165. If the Company shall be wound up (whether the liquidation is voluntary or
by the court) the liquidator may, with the authority of a special resolution and
any other sanction required by the Act, divide among the Members in specie or
kind the whole or any part of the assets of the Company and whether or not the
assets shall consist of properties of one kind or shall consist of properties to
be divided as aforesaid of different kinds, and may for such purpose set such
value as he deems fair upon any one or more class or classes of property and may
determine how such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like authority, vest
any part of the assets in trustees upon such trusts for the benefit of the
Members as the liquidator with the like authority shall think fit, and the
liquidation of the Company may be closed and the Company dissolved, but so that
no contributory shall be compelled to accept any shares or other property in
respect of which there is a liability.
INDEMNITY
166. (1) The Directors, Secretary and other officers and each person who is or
was or had agreed to become a Director or officer of the Company, and each such
person who is or was serving or who had agreed to serve at the request of the
Board of Directors or an officer of the Company as an employee or agent of the
Company or as a Director, officer, employee or agent of another company,
corporation, partnership, joint venture, trust or other enterprise and every
Auditor for the time being of the Company and the liquidator or trustees (if
any) for the time being acting in relation to any of the affairs of the Company
and everyone of them, and every one of their heirs, executors, administrators
and estates, shall be indemnified and secured harmless out of the assets and
profits of the Company from and against all actions, costs, charges, losses,
damages and expenses which they or any of them, their or any of their heirs,
executors, administrators or estates, shall or may incur or sustain by or by
reason of any act done, concurred in or omitted in or about the execution of
their the duty, or supposed duty, in their respective offices or trusts; and
none of them shall be answerable for the acts, receipts, neglects or defaults of
the other or others of them or for joining in any receipts for the sake of
conformity, or for any bankers or other persons with whom any moneys or effects
belonging to the Company shall or may be lodged or deposited for safe custody,
or for insufficiency or deficiency of any security
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upon which any moneys of or belonging to the Company shall be placed out on or
invested, or for any other loss, misfortune or damage which may happen in the
execution of their respective offices or trusts, or in relation thereto;
PROVIDED THAT this indemnity shall not extend to any matter in respect of any
wilful negligence, wilful default, fraud or dishonesty which may attach to any
of said persons. Subject to the provisions of the Act and without limiting the
generality or the effect of the foregoing, the Company may enter into one or
more agreements with any person which provide for indemnification greater or
different than that provided in this Bye-law 166(1). Any repeal or modification
of this Bye-law 166(1) shall not adversely affect any right or protection
existing hereunder immediately prior to such repeal or modification.
ALTERATION OF BYE-LAWS & AMENDMENT TO MEMORANDUM OF ASSOCIATION
167. No Bye-Law shall be rescinded, altered or amended and no new Bye-Law shall
be made until the same has been approved by a resolution of the Directors and
confirmed by an ordinary resolution of the holders of Common Shares.
INFORMATION
168. No Member shall be entitled to require discovery of or any information
respecting any detail of the Company's trading or any matter which is or may be
in the nature of a trade secret or secret process which may relate to the
conduct of the business of the Company and which in the opinion of the Directors
it will be inexpedient in the interests of the members of the Company to
communicate to the public.
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