EXHIBIT 3.2
BYE-LAWS*
of
ORIENT-EXPRESS HOTELS LTD.
INTERPRETATION
1. (1) In these Bye-Laws unless the context otherwise requires -
"A Shares" means the Class A Common Shares, par value $0.01 per share,
of the Company;
"B Shares" means the Class B Common Shares, par value $0.01 per share,
of the Company;
"Bermuda" means the Islands of Bermuda;
"Board" means the Board of Directors of the Company or the Directors
present at a meeting of Directors at which there is a quorum;
"the Companies Acts" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Company;
"Company" means the company named Orient-Express Hotels Ltd.
incorporated in Bermuda on October 16, 1987 ;
"Director" means such person or persons as shall be appointed to the
Board from time to time pursuant to Bye-Law 71.
"Officer" means a person appointed by the Board pursuant to Bye-Law 98
of these Bye-Laws and shall not include an auditor of the Company;
"paid up" means paid up or credited as paid up;
"Register" means the Register of Shareholders of the Company and
includes any branch or sub-register;
"Registrar" means any person appointed to perform the duties of a
registrar of shares and, if no such person shall be appointed, means
the Secretary;
"Registered Office" means the registered office for the time being of
the Company;
* As adopted by the board of directors on May 7, 2007 and confirmed by
shareholders on June 15, 2007.
"Resident Representative" means the individual (or, if permitted in
accordance with the Companies Acts, the company) appointed to perform
the duties of resident representative set out in the Companies Acts
and includes any assistant or deputy Resident Representative appointed
by the Board to perform any of the duties of the Resident
Representative;
"Resolution" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of Shareholders,
adopted in general meeting in accordance with the provisions of these
Bye-Laws; "
Seal" means the common seal of the Company and includes any duplicate
or facsimile thereof;
"Secretary" includes a temporary or assistant or deputy Secretary and
any person appointed by the Board to perform any of the duties of the
Secretary;
"Shareholder" means a shareholder or member of the Company; and
"these Bye-Laws" means these Bye-Laws in their present form or as from
time to time amended;
(2) For the purposes of these Bye-Laws, a company shall be deemed to be
present in person if its representative duly authorised pursuant to
the Companies Acts is present;
(3) Words importing only the singular number include the plural number and
vice versa;
(4) Words importing only the masculine gender include the feminine and
neuter genders respectively;
(5) Words importing persons include individuals, firms, companies,
corporations, trusts or other entities, or associations or bodies of
persons, whether corporate or un-incorporate;
(6) Reference to writing shall include typewriting, printing, lithography,
photography and other modes of representing or reproducing words in a
legible and non-transitory form;
(7) Any words or expressions defined in the Companies Acts shall bear the
same meaning in these Bye-Laws unless otherwise defined herein;
(8) The word "may" shall be construed as permissive and the word "shall"
shall be construed as imperative.
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REGISTERED OFFICE
2. The Registered Office shall be at such place in Bermuda as the Board shall
from time to time appoint.
SHARE RIGHTS
3. Any share in the Company may be issued with or have attached thereto such
preferred, deferred, qualified or other special rights, privileges or
conditions or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise, as the Board may from time to time
determine. The respective rights and restrictions attached to the A Shares
and the B Shares are as set forth in Schedules 1 and 2 (as the same may be
amended from time to time) to these Bye-Laws, which Schedules shall be
deemed to be incorporated in and form part of this Bye-Law 3.
4. (1) Subject to the Companies Acts, any preference shares may, with the
sanction of a resolution of the Board, be issued on terms:
(a) that they are to be redeemed on the happening of a specified
event or on a given date; and/or,
(b) that they are liable to be redeemed at the option of the Company.
The terms and manner of redemption shall be provided for in such
resolution of the Board and shall be attached to but shall not form
part of these Bye-Laws.
(2) The terms and manner of redemption of any other redeemable preference
shares of the Company shall be either (A) as the Company may in
general meeting determine or (B) in the event that the Company, in
general meeting, may have so authorized, as the Board or any committee
thereof may by resolution determine before the issuance of such
shares, such resolution to be attached as a Schedule to these
Bye-Laws.
(3) The Company may from time to time purchase its own shares on such
terms and in such manner as may be authorized by the Board.
5. The Company may adopt a scheme or arrangement (hereinafter called a
"shareholder rights plan") binding upon the Company or a successor to it or
its assets or earning power and upon the Shareholders, present and future,
and providing for the creation and
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issuance of rights entitling the Shareholders of the Company, or certain of
them, to acquire from the Company shares of any class or assets of the
Company or a subsidiary of the Company or otherwise, and the terms and
conditions of such shareholder rights plan and rights may be amended or
modified either (i) as the Company may in general meeting determine or (ii)
as the Directors or any committee thereof may determine, such shareholder
rights plan to be attached as a Schedule to these Bye-Laws.
MODIFICATION OF RIGHTS
6. Subject to the Companies Acts, all or any of the special rights for the
time being attached to any class of shares for the time being issued may,
unless otherwise provided in the rights attaching to or 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 altered or abrogated with the sanction of a
Resolution passed by a simple majority at a separate general meeting of the
holders of the issued shares of that class. To any such separate general
meeting, all the provisions of these Bye-Laws as to general meetings of the
Company shall mutatis mutandis apply, but so that the necessary quorum
shall be persons holding or representing by proxy a majority of the shares
of the relevant class and that every holder of shares of the relevant class
shall be entitled on a poll to one vote for every such share held by him.
7. 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 altered
by the creation or issue of further shares ranking pari passu therewith.
SHARES
8. Subject to the provisions of these Bye-Laws, the unissued shares of the
Company (whether forming part of the original capital or any increased
capital) shall be at the disposal of the Board, which may offer, allot,
grant options over or distribute rights in respect of, or otherwise issue
or dispose of them or options over or rights in respect of
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them, to such persons, at such times and for such consideration (if any)
and upon such terms and conditions as the Board may determine.
9. The Board may in connection with the issue of any shares exercise all
powers of paying commission, discount and brokerage conferred or permitted
by law.
10. Except as ordered by a court of competent jurisdiction or as required by
law, no person shall be recognised by the Company as holding any share upon
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 interest in any fractional
part of a share or (except only as otherwise provided in these Bye-Laws, or
by law) any other right in respect of any share except an absolute right to
the entirety thereof in the registered holder.
CERTIFICATES
11. The preparation, issue and delivery of certificates shall be governed by
the Companies Acts or other applicable law. In the case of a share held
jointly by several persons, delivery of a certificate to one of several
joint holders shall be sufficient delivery to all.
12. If a share certificate is defaced, lost or destroyed it may be replaced
without fee payable to the Company but on such terms (if any) as to
evidence and indemnity and to payment of the costs and 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 defacement, on
delivery of the old certificate to the Company.
13. All certificates for share or loan capital or other securities of the
Company (other than letters of allotment, scrip certificates and other like
documents) shall, except to the extent that the terms and conditions for
the time being relating thereto otherwise provide, be issued under the
Seal. The Board may by resolution determine, either generally or in any
particular case, that any signatures on any such certificates 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 persons.
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LIEN
14. 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 date fixed by or in accordance with the terms of
issue of such share in respect of such share, and the Company shall also
have a first and paramount lien on every share (other than a fully paid
share) standing registered in the name of a Shareholder, whether singly or
jointly with any other person, for all the debts and liabilities of such
Shareholder or his estate to the Company, whether the same shall have been
incurred before or after notice to the Company of any interest of any
person other than such Shareholder, and whether the time 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
Shareholder or his estate and any other person, whether a Shareholder or
not. The Company's lien on a share shall extend to all dividends payable
thereon. The Board may at any time, either generally or in any particular
case, waive any lien that has arisen or declare any share to be wholly or
in part exempt from the provisions of this Bye-Law.
15. The Company may sell, in such manner as the Board may think fit, 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 nor until the
expiration of fourteen (14) days after a notice in writing, stating and
demanding payment of the sum presently payable and giving notice of the
intention to sell in default of such payment, has been served on the holder
for the time being of the share.
16. The net proceeds of sale by the Company of any shares on which it has a
lien shall be 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 who was the holder of the share immediately
before such sale. For giving effect to any such sale, the Board may
authorise some person to transfer the share sold to the purchaser thereof.
The purchaser shall be registered as the holder of the share and he shall
not be bound to see to the application of the purchase money, nor
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shall his title to the share be affected by any irregularity or invalidity
in the proceedings relating to the sale.
CALLS ON SHARES
17. The Board may from time to time make calls upon the Shareholders in respect
of any moneys unpaid on their shares (whether on account of the par value
of the shares or by way of premium) and not by the terms of issue thereof
made payable at a date fixed by or in accordance with such terms of issue,
and each Shareholder shall (subject to the Company serving upon him at
least fourteen (14) days notice specifying the time or times and place of
payment) pay to the Company at the time or times and place so specified the
amount called on his shares. A call may be revoked or postponed as the
Board may determine.
18. A call may be made payable by instalments and shall be deemed to have been
made at the time when the resolution of the Board authorising the call was
passed.
19. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
20. If a sum called in respect of the share shall not be paid before or on the
day appointed for payment thereof the person from whom the sum is due shall
pay interest on the sum from the day appointed for the payment thereof to
the time of actual payment at such rate as the Board may determine, but the
Board shall be at liberty to waive payment of such interest wholly or in
part.
21. Any sum which, by the terms of issue of a share, becomes payable on
allotment or at any date fixed by or in accordance with such terms of
issue, whether on account of the nominal amount of the share or by way of
premium, shall for all the purposes of these Bye-Laws be deemed to be a
call duly made, notified and payable on the date on which, by the terms of
issue, the same becomes payable and, in case of non-payment, all the
relevant provisions of these Bye-Laws as to payment of interest, forfeiture
or otherwise
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shall apply as if such sum had become payable by virtue of a call duly made
and notified.
22. The Board may on the issue of shares differentiate between the allottees or
holders as to the amount of calls to be paid and the times of payment.
FORFEITURE OF SHARES
23. If a Shareholder fails to pay any call or instalment of a call on the day
appointed for payment thereof, the Board may at any time thereafter during
such time as any part of such call or instalment remains unpaid serve a
notice on him requiring payment of so much of the call or instalment as is
unpaid, together with any interest which may have accrued.
24. The notice shall name a further day (not being less than fourteen (14) days
from the date of the notice) on or before which, and the place where, the
payment required by the notice is to be made and shall state that, in the
event of non-payment on or before the day and at the place appointed, the
shares in respect of which such call is made or instalment is payable will
be liable to be forfeited. 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 shall include surrender.
25. If the requirements of any such notice as aforesaid 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 or instalments and interest due in
respect thereof has been made, be forfeited by a resolution of the Board to
that effect. Such forfeiture shall include all dividends declared in
respect of the forfeited shares and not actually paid before the
forfeiture.
26. 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, but no
forfeiture shall be in any manner invalidated by any omission or neglect to
give such notice as aforesaid.
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27. A forfeited share shall be deemed to be the property of the Company and may
be sold, re-offered or otherwise disposed of either to the person who was,
before forfeiture, the holder thereof or entitled thereto or to any other
person upon such terms and in such manner as the Board shall think fit, and
at any time before a sale, re-allotment or disposition the forfeiture may
be cancelled on such terms as the Board may think fit.
28. A person whose shares have been forfeited shall thereupon cease to be a
Shareholder in respect of the forfeited shares but shall, notwithstanding
the forfeiture, remain liable to pay to the Company all moneys which at the
date of forfeiture were presently payable by him to the Company in respect
of the shares with interest thereon at such rate as the Board may determine
from the date of forfeiture until payment, and the Company may enforce
payment without being under any obligation to make any allowance for the
value of the shares forfeited.
29. An affidavit in writing that the deponent is a Director of the Company or
the Secretary and that a share has been duly forfeited on the date stated
in the affidavit shall be conclusive evidence of the facts therein stated
as against all persons claiming to be entitled to the share. The Company
may receive the consideration (if any) given for the share on the sale,
re-allotment or disposition thereof and the Board may authorise some person
to transfer the share to the person to whom the same is sold, re-allotted
or disposed of, and he shall thereupon be registered as the holder of the
share and shall not be bound to see to the application of the purchase
money (if any) nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings relating to the forfeiture,
sale, re-allotment or disposal of the share.
REGISTER OF SHAREHOLDERS
30. The Secretary shall establish and maintain the Register in Bermuda in the
manner prescribed by the Companies Acts. Unless the Board otherwise
determines, the Register shall be open to inspection in the manner
prescribed by the Companies Acts between 10.00 a.m. and 12.00 noon on every
working day. Unless the Board so determines, no Shareholder or intending
Shareholder shall be entitled to have entered in the Register any
indication of any trust or any equitable, contingent, future or partial
interest in any
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share or any interest in any fractional part of a share and if any such
entry exists or is permitted by the Board it shall not be deemed to
abrogate any of the provisions of Bye-Law 10.
REGISTER OF DIRECTORS AND OFFICERS
31. The Secretary shall establish and maintain a register of the Directors and
Officers of the Company as required by the Companies Acts. The register of
Directors and Officers shall be open to inspection in the manner prescribed
by the Companies Acts between 10:00 a.m. and 12:00 noon on every working
day.
TRANSFER OF SHARES
32. Subject to the Companies Acts and to such of the restrictions contained in
these Bye-Laws as may be applicable, any Shareholder may transfer all or
any of his shares by an instrument of transfer in the usual common form or
in any other form which the Board may approve.
33. The instrument of transfer of a share shall be signed by or on behalf of
the transferor and where any share is not fully-paid, the transferee and
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. All
instruments of transfer when registered may be retained by the Company. The
Board may, in its absolute discretion and without assigning any reason
therefor, decline to register any transfer of any share which is not a
fully-paid share. The Board may also decline to register any transfer
unless:-
(1) the instrument of transfer is duly stamped and lodged with the
Company, accompanied by the certificate for the shares to which it
relates, and such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer, or
(2) the instrument of transfer is in respect of only one class of share,
or
(3) where applicable, the permission of the Bermuda Monetary Authority
with respect thereto has been obtained.
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Subject to any directions of the Board from time to time in force, the
Registrar may exercise the powers and discretions of the Board under this
Bye-Law and Bye-Laws 32 and 34.
34. If the Board declines to register a transfer it shall, within three months
after the date on which the instrument of transfer was lodged, send to the
transferee notice of such refusal.
35. No fee shall be charged by the Company for registering any transfer,
probate, letters of administration, certificate of death or marriage, power
of attorney, distringas or stop notice, order of court or other instrument
relating to or affecting the title to any share, or otherwise making an
entry in the Register relating to any share.
TRANSMISSION OF SHARES
36. In the case of the death of a Shareholder, the survivor or survivors, where
the deceased was a joint holder, and the estate representative, where he
was sole holder, shall be the only person recognised by the Company as
having any title to his shares; but nothing herein contained shall release
the estate of a deceased holder (whether the sole or joint) from any
liability in respect of any share held by him solely or jointly with other
persons. For the purpose of this Bye-Law, estate representative means the
person to whom probate or letters of administration has or have been
granted or, failing any such person, such other person as the Board may in
its absolute discretion determine to be the person recognised by the
Company for the purpose of this Bye-Law.
37. Any person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law may, subject as
hereafter provided and upon such evidence being produced as may from time
to time be required by the Board as to his entitlement, either be
registered himself as the holder of the share or elect to have some person
nominated by him registered as the transferee thereof. If the person so
becoming entitled elects to be registered himself, he shall deliver or send
to the Company a notice in writing signed by him stating that he so elects.
If he shall elect to have his nominee registered, he shall signify his
election by signing an instrument of
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transfer of such share in favour of his nominee. All the limitations,
restrictions and provisions of these Bye-Laws relating to the right to
transfer and the registration of transfer of shares shall be applicable to
any such notice or instrument of transfer as aforesaid as if the death of
the Shareholder or other event giving rise to the transmission had not
occurred and the notice or instrument of transfer was an instrument of
transfer signed by such Shareholder.
38. A person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law shall (upon such
evidence being produced as may from time to time be required by the Board
as to his entitlement) be entitled to receive and may give a discharge for
any dividends or other moneys payable in respect of the share, but he shall
not be entitled in respect of the share to receive notices of or to attend
or vote at general meetings of the Company or, save as aforesaid, to
exercise in respect of the share any of the rights or privileges of a
Shareholder until he or his nominee shall have become registered as the
holder thereof. The Board may at any time give notice requiring such person
to elect either to be registered himself or to transfer the share and, if
the notice is not complied with within sixty (60) days, the Board may
thereafter withhold payment of all dividends and other moneys payable in
respect of the shares until the requirements of the notice have been
complied with.
39. Subject to any directions of the Board from time to time in force, the
Registrar may exercise the powers and discretions of the Board under
Bye-Laws 36, 37 and 38.
INCREASE OF CAPITAL
40. Subject to any confirmation or consent required by law, the Company may
from time to time increase its capital by such sum to be divided into
shares of such par value as the Company by Resolution shall prescribe.
41. The Company may, by the Resolution increasing the capital, direct that the
new shares or any of them shall be offered in the first instance either at
par or at a premium or (subject to the provisions of the Companies Acts) at
a discount to all the holders for the
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time being of shares of any class or classes in proportion to the number of
such shares held by them respectively or make any other provision as to the
issue of the new shares.
42. The new shares shall be subject to all the provisions of these Bye-Laws
with reference to lien, the payment of calls, forfeiture, transfer,
transmission and otherwise.
ALTERATION OF CAPITAL
43. Subject to any confirmation or consent required by law, the Company may
from time to time by Resolution:-
(1) reclassify or divide its shares into several classes and attach
thereto respectively any preferential, deferred, qualified or special
rights, privileges or conditions;
(2) consolidate and divide all or any of its share capital into shares of
larger par value than its existing shares;
(3) sub-divide its shares or any of them into shares of smaller par value
than is fixed by its memorandum, so, however, that in the sub-division
the proportion between the amount paid and the amount, if any, unpaid
on each reduced share shall be the same as it was in the case of the
share from which the reduced share is derived;
(4) make provision for the issue and allotment of shares which do not
carry any voting rights;
(5) cancel shares which, at the date of the passing of the Resolution in
that behalf, have not been taken or agreed to be taken by any person,
and diminish the amount of its share capital by the amount of the
shares so cancelled; and
(6) change the currency denomination of its share capital.
Where any difficulty arises in regard to any reclassification, division,
consolidation, or sub-division under this Bye-Law, the Board may settle the
same as it thinks expedient and, in particular, may arrange for the sale of
the shares representing fractions and the distribution of the net proceeds
of sale in due proportion amongst the Shareholders 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 the purchaser
thereof, who shall not be bound to see to the application of the purchase
money nor shall his title to
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the shares be affected by any irregularity or invalidity in the proceedings
relating to the sale.
44. Subject to the Companies Acts and to any confirmation or consent required
by law or these Bye-Laws, the Company may by Resolution from time to time
convert, or authorize the conversion of, any preference shares into
redeemable preference shares.
REDUCTION OF CAPITAL
45. Subject to the Companies Acts, its memorandum and any confirmation or
consent required by law or these Bye-Laws, the Company may from time to
time by Resolution authorise the reduction of its issued share capital or
of any capital redemption reserve fund or any share premium or contributed
surplus account in any manner.
46. In relation to any such reduction, the Company may by Resolution or the
Directors may determine the terms upon which such reduction is to be
effected including, in the case of a reduction of part only of a class of
shares, those shares to be affected.
GENERAL MEETINGS
47. The Board shall convene and the Company shall hold general meetings as
annual general meetings in accordance with the requirements of the
Companies Acts at such times and places as the Board shall appoint. The
Board or the Chairman of the Board (if any) may, whenever it or he thinks
fit, and shall, when required by the Companies Acts, convene general
meetings other than Annual General Meetings which shall be called special
general meetings.
NOTICE OF GENERAL MEETINGS
48. An Annual General Meeting or a Special General Meeting shall be called by
notice not less than ten (10) nor more than fifty (50) days before the date
of the meeting. The notice shall be exclusive of the day on which it is
served or deemed to be served and of the day for which it is given, and
shall specify the place, day and time of the meeting and
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the general nature of the business to be considered. Notice of every
general meeting shall be given in any manner permitted by Bye-Laws 118 and
119 to all Shareholders other than those which, under the provisions of
these Bye-Laws or the terms of issue of the shares they hold, are not
entitled to receive such notice from the Company, and to any Director or
Resident Representative.
49. The accidental omission to give notice of a meeting or (in cases where
instruments of proxy are sent out with the notice) the accidental omission
to send such instrument of proxy to, or the non-receipt of notice of a
meeting or such instrument of proxy by, any person entitled to receive such
notice shall not invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
50. No business shall be transacted at any general meeting unless a quorum is
present when the meeting proceeds to business, but the absence of a quorum
shall not preclude the appointment, choice or election of a chairman which
shall not be treated as part of the business of the meeting. Save as
otherwise expressly provided by these Bye-Laws, the quorum at any general
meeting shall be constituted by Shareholders, either present in person or
represented by proxy, holding in the aggregate shares carrying a majority
of the voting rights entitled to be exercised at such meeting.
51. If within five minutes (or such longer time 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
Shareholders, shall be dissolved. In any other case, it shall stand
adjourned to such other day and such other time and place as the chairman
of the meeting may determine.
52. A meeting of the Shareholders or any class thereof may be held by means of
such telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other
simultaneously and instantaneously and participation in such a meeting
shall constitute presence in person at such meeting.
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53. Each Director and the Resident Representative, if any, shall be entitled to
attend and speak at any general meeting of the Company.
54. The Chairman (if any) of the Board or, in his absence, the President shall
preside as chairman at every general meeting. If there is no such Chairman
or President, or if at any meeting neither the Chairman nor the President
is present within five 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,
the persons present and entitled to vote on a poll shall elect one of their
number to be chairman.
55. The chairman of the meeting 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 but no business shall be
transacted at any adjourned meeting except business which might lawfully
have been transacted at the meeting from which the adjournment took place.
56. Save as expressly provided by these Bye-Laws, it shall not be necessary to
give any notice of an adjournment or of the business to be transacted at an
adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken, unless the
Directors fix a new record date for the adjourned meeting in which case a
notice of the adjourned meeting shall be given to each person who is a
Shareholder on the new record date entitled to notice under Bye-Law 113.
VOTING
57. Save where a greater majority is required by the Companies Acts or these
Bye-Laws or by the special rights for the time being attached to any class
of shares for the time being in issue, any question proposed for
consideration at any general meeting shall be decided
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on by a simple majority of votes cast, including votes received in the form
of electronic records or transmissions.
58. Subject to these Bye-Laws and to any special rights or restrictions for the
time being attached to any class of shares for the time being in issue,
each Shareholder at any general meeting of the Company shall be entitled to
one vote for each share held by him, and such vote may be given in person
or by proxy.
59. In the case of an equality of votes at a general meeting, the chairman of
the meeting shall not be entitled to a second or casting vote, and the
Resolution shall fail.
60. In the case of joint holders of a share, any one of the holders may
exercise the voting rights attaching to the share, either personally or by
proxy, as if he were solely entitled thereto, and if more than one of the
joint holders is present at any general meeting, personally or by proxy,
that one of the holders whose name stands first on the Register in respect
of such share shall alone be entitled to exercise the voting rights in
respect thereof. Several executors or administrators of a deceased
Shareholder in whose name any shares stand shall for the purposes of this
Bye-Law be deemed joint holders thereof.
61. A Shareholder who is a patient for any purpose of any statute or applicable
law 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 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 by proxy, and
may otherwise act and be treated as such Shareholder for the purpose of
general meetings.
62. No Shareholder shall, unless the Board otherwise determines, be entitled to
vote at any general meeting unless all calls or other sums presently
payable by him in respect of shares in the Company have been paid.
63. If:
(1) any objection shall be raised to the qualification of any voter; or
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(2) any votes have been counted which ought not to have been counted or
which might have been rejected; or
(3) 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.
64. Except as the Companies Acts shall otherwise require in the particular
case, Shareholders may only act in general meeting of the Company and no
resolution or consent in writing signed by one or more Shareholders for the
time being entitled to vote at a general meeting upon such resolution or
consent shall be valid or effectual for any purpose.
PROXIES AND CORPORATE REPRESENTATIVES
65. The instrument appointing a proxy shall be in writing or in the form of an
electronic record or transmission from the Shareholder or his attorney
authorised by him or, if the Shareholder is a corporation, from an officer,
attorney or other person authorised to appoint such a proxy on behalf of
the corporation.
66. Any Shareholder may appoint a standing proxy or (if a company or
corporation) representative by depositing at the Registered Office, or by
sending an electronic record or transmission from the Shareholder, a proxy
or (if a company or corporation) an authorisation and such proxy or
authorisation shall be valid for all general meetings and adjournments
thereof or until notice of revocation is received at the Registered Office
or by the Company through an electronic record or transmission from the
Shareholder. Where a standing proxy or authorisation exists, its operation
shall be deemed to have been suspended at any general meeting or
adjournment thereof at which the Shareholder is present or in respect to
which the Shareholder has specially appointed a proxy or
18
representative. The Board may from time to time require such evidence as it
shall deem necessary as to the due execution or continuing validity of any
such standing proxy or authorisation and the operation of any such standing
proxy or authorisation shall be deemed to be suspended until such time as
the Board determines that it has received the requested evidence or other
evidence satisfactory to it.
67. Subject to Bye-Law 66, the instrument appointing a proxy together with such
other evidence as to its due execution or continuing validity as the Board
may from time to time require, shall be delivered at the Registered Office
(or at such place as may be specified in the notice convening the meeting
or in any notice of any adjournment or, in either case, in any document
sent therewith) or to the Company through an electronic record or
transmission prior to the holding of the meeting or adjourned meeting at
which the person named in the instrument proposes to vote and in default
the instrument of proxy shall not be treated as valid.
68. Instruments of proxy shall be in any common form or in such other form
(including an electronic record or transmission) as the Board may approve
and the Board may, if it thinks fit, send out with the notice of any
meeting forms of instruments of proxy for use at that meeting. The
instrument of proxy shall be deemed to confer authority 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.
69. A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or unsoundness of mind of the
principal, or revocation of the instrument of proxy or of the authority
under which it was executed, provided that no notice in writing or through
an electronic record or transmission of such death, insanity or revocation
shall have been received by the Company at the Registered Office (or such
other place as may be specified for the delivery of instruments of proxy in
the notice convening the meeting or other documents sent therewith) one
hour at least before the commencement of the meeting or adjourned meeting
at which the instrument of proxy is used.
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70. Subject to the Companies Acts, the Board may at its discretion waive any of
the provisions of these Bye-Laws related to proxies or authorisations and,
in particular, may accept such verbal or other assurances as it thinks fit
as to the right of any person to attend and vote on behalf of any
Shareholder at general meetings.
APPOINTMENT AND REMOVAL OF DIRECTORS
71. The number of Directors shall be such number not less than three as the
Company by Resolution may from time to time determine. Any vacancies on the
Board of Directors may be filled by the Directors remaining in office. At
any special general meeting called for the purpose of electing any person
to be a Director or increasing or reducing the number of Directors of the
Company or electing any person to act as an additional Director,
Shareholders holding not less than ninety percent (90%) of the shares of
the Company at the time in issue and outstanding and entitled to vote,
either present in person or represented by proxy, shall constitute a quorum
at such meeting.
72. Subject to the Companies Acts and these Bye-Laws, the Directors shall serve
until re-elected or their successors are appointed at the next annual
general meeting. To the extent permitted by law, a Director shall not be
required to be a Shareholder of the Company or to have registered in his
name any shares in the Company.
73. The Company shall at the annual general meeting and, subject to Bye-Law 71,
may by Resolution determine the minimum and the maximum number of
Directors. Without prejudice to the power of the Company by Resolution in
pursuance of any of the provisions of these Bye-Laws to appoint any person
to be a Director, the Board, so long as a quorum of Directors remains in
office, shall have power at any time and from time to time to appoint any
individual to be a Director so as to fill any vacancy occurring on the
Board.
74. Directors may be removed for cause by vote of the Shareholders or by
resolution of the Directors. Directors may be removed without cause by vote
of the Shareholders. Notwithstanding the preceding sentences, a Director
may not be removed at a special general meeting unless notice of any such
meeting shall have been served upon the
20
Director concerned not less than fourteen (14) days before the meeting and
he shall be entitled to be heard at that meeting and provided further that
the Resolution removing any Director is duly adopted by Shareholders
holding not less than ninety percent (90%) of the shares of the Company at
the time in issue and outstanding and entitled to vote generally in the
election of Directors. Subject to the third sentence of Bye-Law 71, any
vacancy created by the removal of a Director at a special general meeting
may be filled at the meeting by the election of another Director in his
place or, in the absence of any such election, by the Board.
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
75. The office of a Director shall be vacated upon the happening of any of the
following events:
(1) if he resigns his office by notice in writing delivered to the
Registered Office or tendered at a meeting of the Board;
(2) if he becomes of unsound mind or a patient for any purpose of any
statute or applicable law relating to mental health and the Board
resolves that his office is vacated;
(3) if he becomes bankrupt under the laws of any country or compounds with
his creditors;
(4) if he is prohibited by law from being a Director;
(5) if he ceases to be a Director by virtue of the Companies Acts or is
removed from office pursuant to these Bye-Laws.
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ALTERNATE DIRECTORS
76. The Company may in general meeting elect a person or persons qualified to
be Directors to act as Directors in the alternative to any of the Directors
of the Company or may authorize the Board to appoint such Alternate
Directors. Any Alternate Director may be removed by the Company in general
meeting and, if appointed by the Board, may be removed by the Board 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. An Alternate Director may also
be a Director in his own right and may act as alternate to more than one
Director.
77. An Alternate Director shall be entitled to receive notices of all meetings
of Directors, to attend, be counted in the quorum and vote at any such
meeting at which any Director to whom he is alternate is not personally
present, and generally to perform all the functions of any Director to whom
he is alternate in his absence.
78. Every person acting as an Alternate Director shall (except as regards
powers to appoint an alternate and remuneration) be subject in all respects
to the provisions of these Bye-Laws relating to Directors 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 any Director for whom he is alternate. An
Alternate Director may be paid expenses and shall be entitled to be
indemnified by the Company to the same extent mutatis mutandis as if he
were a Director. 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). The signature of an Alternate
Director to any resolution in writing of the Board or a committee of the
Board shall, unless the terms of his appointment provides to the contrary,
be as effective as the signature of the Director or Directors to whom he is
alternate.
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DIRECTORS' FEES, REMUNERATION AND EXPENSES
79. The amount, if any, of Directors' fees shall from time to time be
determined by the Board. Each Director may be paid his reasonable travel,
hotel and incidental expenses in attending and returning from meetings of
the Board or committees constituted pursuant to these Bye-Laws or general
meetings and shall be paid all expenses properly and reasonably incurred by
him in the conduct of the Company's business or in the discharge of his
duties as a Director. Any Director who, by request, goes or resides abroad
for any purposes 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 any remuneration provided for by
or pursuant to any other Bye-Law.
DIRECTORS' AND OFFICERS' INTERESTS
80. (1) A Director or other officer may hold any other office or place of
profit with the Company (except that of auditor) in conjunction with
his office for such period and upon such terms as the Board may
determine, and may be paid such extra remuneration therefor (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 any remuneration provided for by or pursuant to any other
Bye-Law.
(2) A Director or other officer may act by himself or his firm in a
professional capacity for the Company (otherwise than as auditor) and
he or his firm shall be entitled to remuneration for professional
services as if he were not a Director or other officer.
(3) Subject to the provisions of the Companies Acts, a Director or other
officer may notwithstanding his office be a party to, or otherwise
interested in, any transaction or arrangement with the Company or in
which the Company is otherwise interested; and may be a director or
other officer of, or employed by, or a party to any transaction or
arrangement with, or otherwise interested in, any body corporate
promoted by the Company or in which the Company is
23
interested. The Board may also cause the voting power conferred by the
shares in any other company held or owned by the Company to be
exercised in such manner in all respects as it thinks fit, including
the exercise thereof in favour of any resolution appointing the
Directors or any of them to be directors or officers of such other
company, or voting or providing for the payment of remuneration to the
directors or officers of such other company.
(4) So long as, where it is necessary, he declares the nature of his
interest at the first opportunity at a meeting of the Board or by
writing to the Directors as required by the Companies Acts, a Director
or other officer shall not by reason of his office be accountable to
the Company for any benefit which he derives from any office or
employment to which these Bye-Laws allow him to be appointed or from
any transaction or arrangement in which these Bye-Laws allow him to be
interested, and no such transaction or arrangement shall be liable to
be avoided on the ground of any interest or benefit.
(5) Subject to the Companies Acts and any further disclosure required
thereby, a general notice to the Directors by a Director or other
officer declaring that he is a director or officer or has an interest
in a person and is to be regarded as interested in any transaction or
arrangement made with that person, shall be a sufficient declaration
of interest in relation to any transaction or arrangement so made.
POWERS AND DUTIES OF THE BOARD
81. Subject to the provisions of the Companies Acts and these Bye-Laws, the
Board shall manage the business of the Company and may pay all expenses
incurred in promoting and incorporating the Company and may exercise all
the powers of the Company. No alteration of these Bye-Laws shall invalidate
any prior act of the Board which would have been valid if that alteration
had not been made. The powers given by this Bye-Law shall not be limited by
any special power given to the Board by these Bye-Laws and 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.
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82. The Board may exercise all the powers of the Company to 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 to issue
debentures and other securities, whether outright or as collateral security
for any debt, liability or obligation of the Company or of any other
persons.
83. All cheques, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or transferable or not, and all receipts
for money 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.
84. The Board on behalf of the Company may provide benefits, whether by the
payment of gratuities or pensions or otherwise, for any person including
any Director or former Director who has held any executive office or
employment with the Company or with any body corporate which is or has been
a subsidiary or affiliate of the Company or a predecessor in the business
of the Company or of any such subsidiary or affiliate, and to any member of
his family or any person who is or was dependent on him, and may contribute
to any fund and pay premiums for the purchase or provision of any such
gratuity, pension or other benefit, or for the insurance of any such
person.
85. The Board may from time to time appoint one or more of its body to hold any
employment or executive office with the Company for such period and upon
such terms as the Board may determine and may revoke or terminate any 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 for any
breach of any contract of service between him and the Company which may be
involved in such revocation or termination. Any person so appointed shall
receive such remuneration (if any) (whether by way of salary, commission,
participation in profits or otherwise) as the Board may determine, and
either in addition to or in lieu of his remuneration as a Director.
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DELEGATION OF THE BOARD'S POWERS
86. The Board may by power of attorney appoint 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 and of 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.
87. The Board may entrust to and confer upon any Director or officer any of the
powers exercisable by it upon such terms and conditions with such
restrictions as it thinks fit, and either collaterally with, or to the
exclusion of, its own powers, and may from time to time revoke or vary all
or any of such powers but no person dealing in good faith and without
notice of such revocation or variation shall be affected thereby.
88. The Board may delegate any of its powers, authorities and discretions to
committees, consisting of such person or persons (whether a member or
members of its body or not) as it thinks fit. Any committee so formed
shall, in the exercise of the powers, authorities and discretions so
delegated, and in conducting its proceedings, conform to any regulations
which may be imposed upon it by the Board. If no regulations are imposed by
the Board the proceedings of a committee with two or more members shall be,
as far as is practicable, governed by the Bye-Laws regulating the
proceedings of the Board.
PROCEEDINGS OF THE BOARD
89. The Board may meet for the despatch of business, adjourn and otherwise
regulate its meetings as it thinks fit. Questions arising at any meeting
shall be determined by a majority of votes. In the case of an equality of
votes the motion shall be deemed to have
26
been lost. A Director may, and the Secretary on the requisition of a
Director shall, at any time summon a meeting of the Board.
90. Notice of a meeting of the Board shall be deemed to be duly given to a
Director if it is given to him personally or by telephone or by word of
mouth or sent to him by post, cable, telex, telecopier or other mode of
representing or reproducing words in a legible and non-transitory form at
his last known address or any other address given by him to the Company for
this purpose. A Director may prospectively or retrospectively waive notice
of any meeting.
91. (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 individuals. Any Director who ceases to be a Director at
a meeting of the Board may continue to be present and to act as a
Director and be counted in the quorum until the termination of the
meeting if no other Director objects and if otherwise a quorum of
Directors would not be present.
(2) A Director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or proposed contract, transaction
or arrangement with the Company and has complied with the provisions
of the Companies Acts and these Bye-Laws with regard to disclosure of
his interest shall be entitled to vote in respect of any contract,
transaction or arrangement in which he is so interested and if he
shall do so his vote shall be counted, and he shall be taken into
account in ascertaining whether a quorum is present.
(3) The Resident Representative shall, upon delivering written notice of
an address for the purposes of receipt of notice, to the Registered
Office, be entitled to receive notice of, attend and be heard at, and
to receive minutes of all meetings of the Board.
92. So long as a quorum of Directors remains in office, the remaining Directors
may act notwithstanding any vacancy in the Board but, if no such quorum
remains, the remaining Directors or a sole remaining Director may act only
for the purpose of calling a general meeting.
27
93. The Board may elect a Chairman of the Board from amongst its members. If no
Chairman of the Board is elected or he is absent, the President shall be
chairman. If at any meeting the Chairman of the Board or the President is
not present within five minutes after the time appointed for holding the
meeting, or is not willing to act as chairman, the Directors present may
choose one of their number to be chairman of the meeting.
94. 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.
95. A resolution in writing signed by all the Directors for the time being
entitled to receive notice of a meeting of the Board or by all the members
of a committee for the time being shall be as valid and effectual as a
resolution passed at a meeting of the Board or, as the case may be, of such
committee duly called and constituted. Such resolution may be contained in
one document or in several documents in the like form each signed by one or
more of the Directors or members of the committee concerned.
96. A meeting of the Board or a committee appointed by the Board may be held by
means of such telephone, electronic or other communication facilities as
permit all persons participating in the meeting to communicate with each
other simultaneously and instantaneously, and participation in such a
meeting shall constitute presence in person at such meeting.
97. All acts done by the Board or by any committee or by any person acting as a
Director or member of a committee or any person duly authorised by the
Board or any committee, shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any member of
the Board or such committee or person acting as aforesaid or that they or
any of them were disqualified or had vacated their office, be as valid as
if every such person had been duly appointed and was qualified and had
continued to be a Director, member of such committee or person so
authorised.
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OFFICERS
98. The officers of the Company shall include a President and a Vice-President
and such other officers (including additional Vice Presidents) as the Board
may determine from time to time, or as may be provided elsewhere in these
Bye-Laws. No officer of the Company is required to be a Director. The
officers shall be elected by the Board as soon as possible after each
annual general meeting. Any person elected or appointed pursuant to this
Bye-Law shall hold office for such period and upon such terms as the Board
may determine and the Board may revoke or terminate any such election or
appointment. Any such revocation or termination shall be without prejudice
to any claim for damages that such officer may have against the Company or
the Company may have against such officer for any breach of any contract of
service between him and the Company which may be involved in such
revocation or termination. Save as provided in the Companies Acts or these
Bye-Laws, the powers and duties of the officers of the Company shall be
such (if any) as are determined from time to time by the Board.
MINUTES
99. The Board shall cause minutes to be made and books kept for the purpose of
recording:-
(1) all appointments of officers made by the Board;
(2) the names of the Directors and other persons (if any) present at each
meeting of the Board and of any committee;
(3) of all proceedings at meetings of the Company, of the holders of any
class of shares in the Company, of the Board and of committees
appointed by the Board;
(4) of all proceedings of its managers (if any).
Shareholders shall only be entitled to see the Register of Directors and
Officers, the Register, the financial information provided for in Bye-Law
116 and the minutes of meetings of the Shareholders of the Company.
SECRETARY AND RESIDENT REPRESENTATIVE
100. The Secretary and, if required, the Resident Representative shall be
appointed by the Board at such remuneration (if any) and upon such terms as
it may think fit and any
29
Secretary and Resident Representative so appointed may be removed by the
Board. The duties of the Secretary and the duties of the Resident
Representative shall be those prescribed by the Companies Acts together
with such other duties as shall from time to time be prescribed by the
Board.
101. A provision of the Companies Acts or 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 the place of, the Secretary.
THE SEAL
102. (1) The Board may authorise the production of a Seal of the Company for
use in Bermuda and one or more duplicate Seals of the Company for use
in any place outside Bermuda, which shall consist of a circular device
with the name of the Company around the outer margin thereof and the
country and year of registration in Bermuda across the centre thereof.
(2) Any document required to be under seal or executed as a deed on behalf
of the Company may be (i) executed under the Seal in accordance with
these Bye-Laws or (ii) signed or executed by any person authorized by
the Board for that purpose, without the use of the Seal.
(3) The Board shall provide for the custody of every Seal. A Seal shall
only be used by authority of the Board or of a committee constituted
by the Board. Subject to these Bye-Laws, any instrument to which a
Seal is affixed shall be attested by the signature of a Director, the
Secretary or any officer of the Company or by the signature of any
person authorized by the Board for that purpose.
DIVIDENDS AND OTHER PAYMENTS
103. The Board may from time to time declare dividends or distributions, in kind
or otherwise, out of profits or contributed surplus or any other reserve
distributable by the Company, to be paid to the Shareholders according to
their rights and interests including such interim dividends as appear to
the Board to be justified by the position of the
30
Company. The Board, in its discretion, may determine that any dividend
shall be paid in cash or shall be satisfied, subject to Bye-Law 111, in
paying up in full shares in the Company to be issued to the Shareholders
credited as fully paid or partly paid or partly in one way and partly the
other. The Board may also pay any fixed cash dividend which is payable on
any shares of the Company.
104. Except insofar as the rights attaching to, or the terms of issue of, any
share otherwise provide:-
(1) all dividends or distributions may be declared and paid according to
the amounts paid up on the shares in respect of which the dividend or
distribution is paid, and an amount paid up on a share in advance of
calls may be treated for the purpose of this Bye-Law as paid-up on the
share;
(2) dividends or distributions may 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 or
distribution is paid.
105. The Board may deduct from any dividend, distribution or other moneys
payable to a Shareholder 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 in respect of shares of the Company.
106. Except insofar as the rights attaching to, or the terms of issue of, any
share otherwise provide, no dividend, distribution or other moneys payable
by the Company on or in respect of any share shall bear interest against
the Company.
107. Any dividend, distribution or 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 address in the Register 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 registered address as appearing in
the Register or addressed to such person 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 in the
31
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. Any one of two or more joint
holders may give effectual receipts for any dividends, distributions or
other moneys payable or property distributable in respect of the shares
held by such joint holders.
108. Any dividend or distribution unclaimed for a period of six years from the
date of declaration of such dividend or distribution shall be forfeited and
shall revert to the Company and the payment by the Board of any unclaimed
dividend, distribution, interest or other sum payable on or in respect of
the share into a separate account shall not constitute the Company a
trustee in respect thereof.
109. The Board may also, in addition to its other powers, direct payment or
satisfaction of any dividend or distribution wholly or in part by the
distribution of specific assets, and in particular of paid-up shares or
debentures of any other company. Where any difficulty arises in regard to
such distribution or dividend the Board may settle it as it thinks
expedient, and in particular, may authorise any person to sell and transfer
any fractions or may ignore fractions altogether, and may fix the value for
distribution or dividend purposes of any such specific assets and may
determine that cash payments shall be made to any Shareholders upon the
footing of the values so fixed in order to secure equality of distribution
and may vest any such specific assets in trustees as may seem expedient to
the Board.
RESERVES
110. The Board may, before recommending or declaring any dividend or
distribution, set aside such sums as it thinks proper as reserves which
shall, at the discretion of the Board, be applicable for any purpose of the
Company 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. The Board may
also without placing the same to reserve carry forward any sums which it
may think it prudent not to distribute.
32
CAPITALIZATION OF PROFITS
111. The Board may from time to time resolve to capitalise all or any part of
any amount for the time being standing to the credit of any reserve or fund
which is available for distribution or any amount standing to the credit of
any share premium account and accordingly that such amount be set free for
distribution amongst the Shareholders or any class of Shareholders who
would be entitled thereto if distributed by way of dividend and in the same
proportions, on the footing that the same be not paid in cash but be
applied either in or towards paying up amounts for the time being unpaid on
any shares in the Company held by such Shareholders respectively or in
payment up in full of unissued shares, debentures or other obligations of
the Company, to be allotted and distributed credited as fully paid amongst
such Shareholders, or partly in one way and partly in the other, provided
that for the purpose of this Bye-Law, a share premium account may be
applied only in paying up of unissued shares to be issued to such
Shareholders credited as fully paid and provided further that any sum
standing to the credit of a share premium account may only be applied in
crediting as fully paid shares of the same class as that from which the
relevant share premium was derived.
112. Where any difficulty arises in regard to any distribution under the last
preceding Bye-Law, the Board may settle the same as it thinks expedient
and, in particular, may 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 should be made
to any Shareholders 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 Shareholders.
RECORD DATES
113. Notwithstanding any other provisions of these Bye-Laws, the Board may fix
any date as the record date for any dividend, distribution, allotment or
issue and for the purpose of identifying the persons entitled to receive
notices of or to vote at general meetings. Any
33
such record date may be on or at any time before or after any date on which
such dividend, distribution, allotment or issue is declared, paid or made
or such notice is despatched.
ACCOUNTING RECORDS
114. The Board shall cause to be kept accounting records sufficient to give a
true and fair view of the state of the Company's affairs and to show and
explain its transactions, in accordance with the Companies Acts.
115. The records of account shall be kept at the Registered Office or at such
other place or places as the Board thinks fit, and shall at all times be
open to inspection by the Directors; provided that if the records of
account are kept at some place outside Bermuda, there shall be kept at an
office of the Company in Bermuda such records as will enable the Directors
to ascertain with reasonable accuracy the financial position of the Company
at the end of each three month period. No Shareholder (other than an
officer of the Company) shall have any right to inspect any accounting
record or book or document of the Company except as conferred by law or
authorised by the Board.
116. A copy of every balance sheet and statement of income and expenditure,
including every document required by law to be annexed thereto, which is to
be laid before the Company in general meeting, together with a copy of the
auditor's report, shall be sent by any method permitted under Bye-Law 118
to each person entitled thereto in accordance with the requirements of the
Companies Acts.
AUDIT
117. Save and to the extent that an audit is waived in the manner permitted by
the Companies Acts, the auditor shall be appointed and his duties regulated
in accordance with the Companies Acts, any other applicable law and such
requirements not inconsistent with the Companies Acts as the Board may from
time to time determine. The remuneration of the auditor shall be fixed by
the Shareholders entitled to vote on the appointment of the auditor or by
the Directors if authorized to do so by such Shareholders.
34
SERVICE OF NOTICES AND OTHER DOCUMENTS
118. Any notice or other document (including a share certificate) may be served
on or delivered to any Shareholder by the Company either (i) personally or
(ii) by sending it through the post (by airmail where applicable) in a
pre-paid letter addressed to such Shareholder at his address as appearing
in the Register or (iii) by delivering it to or leaving it at such
registered address or (iv) by email transmitting such notice or other
document or by publishing such notice or other document on an internet
website. In the case of joint holders of a share, service or delivery of
any notice or other document on or to one of the joint holders shall for
all purposes be deemed as sufficient service on or delivery to all the
joint holders. Any notice or other document if sent by post shall be deemed
to have been served or delivered three days after it was put in the post,
and in proving such service or delivery, it shall be sufficient to prove
that the notice or document was properly addressed, stamped and put in the
post. Any notice or other document transmitted by email shall be deemed to
have been served or delivered twenty-four (24) hours after its dispatch. If
published on a website, any notice or other document shall be deemed to
have been served or delivered to the Shareholder upon the later of (i)
twenty-four (24) hours after the time of dispatch of an email notification
or (ii) three days after a written notice is put in the post, in either
case containing the following information: (a) the publication of the
notice or other document on the website, (b) the address of the website,
(c) the place on the website where the notice or other document may be
found, and (d) how the notice or other document may be accessed on the
website.
Each current and future Shareholder shall be deemed to have acknowledged
and agreed that any notice or other document may be served or delivered to
such Shareholder by the Company by way of publishing it on a website for
access by the Shareholder instead of being provided by other means.
119. Any notice of a general meeting of the Company shall be deemed to be duly
given to a Shareholder, or other person entitled to it, if it is sent to
him by cable, telex, telecopier or other mode of representing or
reproducing words in a legible form at his address as
35
appearing in the Register or any other address given by him to the Company
for this purpose, or by email transmitting such notice or by publishing
such notice on an internet website. Any such notice, other than delivery
through a website, shall be deemed to have been served or delivered to the
Shareholder twenty-four (24) hours after its dispatch. If published on a
website, any such notice shall be deemed to have been served or delivered
to the Shareholder upon the later of (i) twenty-four (24) hours after the
time of dispatch of an email notification or (ii) three days after a
written notice is put in the post, in either case containing the following
information: (a) the publication of the notice on the website, (b) the
address of the website, (c) the place on the website where the notice may
be found, and (d) how the notice may be accessed on the website.
Each current and future Shareholder shall be deemed to have acknowledged
and agreed that any notice of a general meeting of the Company may be
served or delivered to such Shareholder by the Company by way of publishing
it on a website for access by the Shareholder instead of being provided by
other means.
120. Any notice or other document delivered, sent or given to a Shareholder in
any manner permitted by these Bye-Laws shall, notwithstanding that such
Shareholder 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 Shareholder 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 as
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.
WINDING UP
121. If the Company shall be wound up, the liquidator may, with the sanction of
a Resolution of the Company and any other sanction required by the
Companies Acts, divide amongst the Shareholders in specie or kind the whole
or any part of the assets of the Company
36
(whether they shall consist of property of the same kind or not) and may
for such purposes set such values as he deems fair upon any property to be
divided as aforesaid and may determine how such division shall be carried
out as between the Shareholders or different classes of Shareholders. The
liquidator may, with the like sanction, vest the whole or any part of such
assets in trustees upon such trust for the benefit of the contributors as
the liquidator, with the like sanction, shall think fit, but so that no
Shareholder shall be compelled to accept any shares or other assets upon
which there is any liability.
INDEMNITY
122. Subject to the proviso below, every Director, officer of the Company and
member of a committee constituted under Bye-Law 88 and any Resident
Representative shall be indemnified out of the funds of the Company against
all liabilities, loss, damage or expense (including but not limited to
liabilities under contract, tort and statute or any applicable foreign law
or regulation and all reasonable legal and other costs and expenses
properly payable) incurred or suffered by him as such Director, officer,
committee member or Resident Representative and the indemnity contained in
this Bye-Law shall extend to any person acting as a Director, officer,
committee member or Resident Representative in the reasonable belief that
he has been so appointed or elected notwithstanding any defect in such
appointment or election; provided the indemnity contained in this Bye-Law
shall not extend to any matter which would render it void pursuant to the
Companies Acts. Nothing in this Bye-law or Bye-Laws 123, 124 and 125 below
shall operate in favour of any person acting in the capacity of auditor to
the Company.
123. Every Director, officer, member of a committee duly constituted under
Bye-Law 88 or Resident Representative of the Company shall be indemnified
out of the funds of the Company against all liabilities incurred by him as
such Director, officer, committee member or Resident Representative in
defending any proceedings, whether civil or criminal, in which judgement is
given in his favour, or in which he is acquitted, or in connection with any
application under the Companies Acts in which relief from liability is
granted to him by the court.
37
124. To the extent that any Director, officer, member of a committee duly
constituted under Bye-Law 88 or Resident Representative is entitled to
claim an indemnity pursuant to these Bye-Laws in respect of amounts paid or
discharged by him, the relative indemnity shall take effect as an
obligation of the Company to reimburse the person making such payment or
effecting such discharge.
125. Expenses incurred in defending any civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final disposition
of such action, suit or proceeding as authorised by the Directors in the
specific case upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined
that the indemnified party is not entitled to be indemnified pursuant to
Bye-Laws 122 and 123 or otherwise
EMPLOYEE SHARES
126. The Company may give financial assistance to bona fide employees of the
Company or its subsidiaries in order that they may purchase or subscribe
for fully paid up shares in the Company to be held by such employees by way
of beneficial ownership, and may require or allow the sale of such shares
to the Company when an employee ceases to be employed by the Company or any
of its subsidiaries.
ALTERATION OF BYE-LAWS
127. The Directors may from time to time revoke, alter, amend or add to these
Bye-Laws; provided that no such revocation, alteration, amendment or
addition shall be operative unless and until it is confirmed at a
subsequent general meeting of the Company except that Bye-Laws 71 and 74
and this Bye-Law 127 shall not be revoked, altered or amended and no new
Bye-Law shall become operative which alters the effect of any of them until
the same has been approved by Shareholders holding not less than ninety
percent (90%) of the shares of the Company at the time issued and
outstanding and entitled to vote generally, and Bye-Laws 128 and 129 shall
not be revoked, altered or
38
amended and no new Bye-Laws shall become operative which alters the effect
of either of them except as provided in such Bye-Laws.
TRANSACTIONS INVOLVING CERTAIN INTERESTED PERSONS
128. (A) Except as provided in paragraph (B) of this Bye-Law 128, the
favourable vote, at a general meeting of the Company, of the holders
of not less than ninety percent (90%) of the shares carrying voting
rights in the Company shall be required prior to and as a condition to
the consummation of any Business Combination (as hereinafter defined)
involving an interested person (as hereinafter defined). Such ninety
percent (90%) favourable vote shall be in addition to any vote of the
Shareholders which would be required without reference to this Bye-Law
128 and shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or
the Memorandum of Association of the Company, by any other provision
of these Bye-Laws or otherwise.
(B) The provisions of paragraph (A) of this Bye-Law 128 shall not apply to
a particular Business Combination, and such Business Combinations
shall require only such vote or approval (if any) of the Shareholders
as would be required without reference to this Bye-Law 128, if all of
the following conditions are satisfied:
(1) the ratio of (i) the aggregate amount of the cash and the fair
market value of other consideration to be received per A Share or
B Share in such Business Combination by holders of A Shares or B
Shares other than the interested person involved in such Business
Combination, to (ii) the market price per A Share or B Share,
respectively, immediately prior to the announcement of the
proposed Business Combination, is at least as great as the ratio
of (iii) the highest per A Share or B Share price (including
brokerage commissions, transfer taxes and soliciting dealers'
fees) which such interested person has theretofore paid in
acquiring any A Shares or B Shares prior to such Business
39
Combination, to (iv) the market price per A Share or B Share,
respectively, immediately prior to the initial acquisition by
such interested person of any A Shares or B Shares;
(2) The aggregate amount of the cash and the fair market value of
other consideration to be received per A Share or B Share in such
Business Combination by holders of A Shares or B Shares other
than the interested person involved in such Business Combination
(i) is not less than the highest per A Share or B Share price
(including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by such interested person in acquiring any A
Shares or B Shares, and (ii) is not less than the consolidated
earnings per A Share or B Share of the Company for its four full
consecutive fiscal quarters immediately preceding the record date
for solicitation of votes on such Business Combination multiplied
by the then price/earnings multiple (if any) of such interested
person as customarily computed and reported in the financial
community;
(3) The consideration (if any) to be received in such Business
Combination by holders of A Shares or B Shares other than the
interested person involved shall, except to the extent that a
Shareholder agrees otherwise as to all or part of the A Shares or
B Shares which such Shareholder owns, be in the same form and of
the same kind as the consideration paid by the interested person
in acquiring A Shares or B Shares already owned by it;
(4) After such interested person became an interested person and
prior to the consummation of such Business Combination: (i) such
interested person shall have taken steps to ensure that the Board
includes at all times representation by Continuing Directors (as
hereinafter defined) proportionate to the ratio that the number
of shares carrying voting rights in the Company from time to time
owned by Shareholders who are not interested persons bears to all
shares carrying voting rights in
40
the Company outstanding at the time in question (with a
Continuing Director to occupy any resulting fractional position
among the Directors); (ii) such interested person shall not have
acquired from the Company or any subsidiary of the Company,
directly or indirectly, any A Shares or B Shares (except (x) upon
conversion of convertible securities acquired by it prior to
becoming an interested person, or (y) as a result of a pro rata
share dividend, stock split or division or subdivision of shares,
or (z) in a transaction consummated on or after July 15, 2000 and
which satisfied all applicable requirements of this Bye-Law 128);
(iii) such interested person shall not have acquired any
additional shares, or rights over shares, carrying voting rights
or securities convertible into or exchangeable for shares, or
rights over shares, carrying voting rights except as a part of
the transaction which resulted in such interested person becoming
an interested person; and (iv) such interested person shall not
have (x) received the benefit, directly or indirectly (except
proportionately as a Shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the Company or any subsidiary of the Company, or (y)
made any major change in the Company's business or equity capital
structure or entered into any contract, arrangement or
understanding with the Company except any such change, contract,
arrangement or understanding as may have been approved by the
favourable vote of not less than a majority of the Continuing
Directors; and
(5) A proxy statement complying with the requirements of the United
States Securities Exchange Act of 1934, as amended, shall have
been mailed to all holders of shares carrying voting rights for
the purpose of soliciting approval by the Shareholders of such
Business Combination. Such proxy statement shall contain at the
front thereof, in a prominent place, any recommendations as to
the advisability (or inadvisability) of the Business Combination
which the Continuing Directors, or any of them, may have
furnished in writing and, if deemed advisable by a majority of
the Continuing Directors, an opinion of a reputable
41
investment banking firm as to the adequacy (or inadequacy) of the
terms of such Business Combination from the point of view of the
holders of shares carrying voting rights other than any
interested person (such investment banking firm to be selected by
a majority of the Continuing Directors, to be furnished with all
information it reasonably requests, and to be paid a reasonable
fee for its services upon receipt by the Company of such
opinion).
(C) For purposes of this Bye-Law 128 and Bye-Law 129:
(1) The term "Business Combination" means (i) any scheme of
arrangement, reconstruction, amalgamation or similar business
combination involving the Company or any of its subsidiaries and
an interested person or any other company or corporation, if the
arrangement, reconstruction, amalgamation or similar business
combination is initiated, proposed or caused by the interested
person or if such other company or corporation is, or after such
transaction would be, an affiliate of such interested person;
(ii) any transaction or series of transactions involving the
sale, purchase, lease, exchange, mortgage, pledge, transfer or
other disposition, acquisition or encumbrance of assets between
the Company or any of its subsidiaries and any interested person
having a aggregate market value in excess of five percent (5%) of
the consolidated book value of the Company and its subsidiaries
prior to the relevant transaction or series of transactions;
(iii) the issue or transfer to an interested person of any
securities of the Company or any of its subsidiaries other than
an issue or distribution to all Shareholders of the Company
entitled to participate therein (such entitlement not being
dependent upon or affected by any scheme or proposal initiated or
proposed by an interested person) pro rata to their respective
entitlements; (iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Company or any of its
subsidiaries unless such plan or proposal is initiated, proposed
or adopted independently of, and not by agreement or arrangement
with, any
42
interested person; (v) the reclassification of any securities or
other restructuring of the capital of the Company or any of its
subsidiaries, in such a way as to confer a benefit on an
interested person which is not conferred on the Shareholders
generally or any other transaction which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series, or securities
convertible into the shares of any class or series, of the
Company or any subsidiary of the Company beneficially owned by
the interested person except as a result of immaterial changes
due to fractional share adjustments; or (vi) any transaction
involving the receipt by the interested person of the benefit,
directly or indirectly (except proportionately as a Shareholder
of the Company), of any loans, advances, guarantees, pledges, or
other financial benefits provided by or through the Company or
any of its subsidiaries.
(2) The term "person" includes: (i) any person acting in concert (as
hereinafter defined) with him or any nominee for him or person
acting on his behalf; (ii) any company in which such person holds
or beneficially owns ten percent (10%) or more of the shares, or
rights over shares, carrying voting rights in such company; and
(iii) any person or entity over which the person acquiring the
shares, or rights over shares, carrying voting rights has,
directly or indirectly, the power to direct or cause the
direction of management or policies of such other person.
(3) The term "beneficial owner" when used with respect to any share
means a person:
(i) that individually or with or through any affiliate
beneficially owns such share, directly or indirectly; or
(ii) that individually or with or through any affiliate has:
43
(a) the right to acquire such share (whether such right is
exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or
understanding (whether or not in writing), or upon the
exercise of conversion rights, exchange rights,
warrants or options or otherwise; provided, however,
that a person shall not be deemed the beneficial owner
of any share tendered pursuant to a tender or exchange
offer until such offer is accepted; or
(b) the right to vote such share pursuant to any agreement,
arrangement or understanding (whether or not in
writing); provided, however, that a person shall not be
deemed the beneficial owner of any share under this
subparagraph (b) if the right to vote such share
arises:
(x) solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to
Shareholders or any class of Shareholders
generally; or
(y) solely under a nominee or trustee agreement where
the nominee or trustee has no economic interest in
the share (other than the right to be paid normal
nominee or trustee fees or remuneration); or
(iii) that has any agreement, arrangement or understanding
(whether or not in writing) for the purpose of
acquiring, holding, voting (except where the right to
vote is within the exclusion of clause (x) or (y) of
subparagraph (3)(ii)(b) above) or disposing of such
share with any other person that beneficially owns, or
whose affiliates
44
directly or indirectly beneficially own, such share or
any interest therein; but does not, for so long as
such shares are held for purposes of an underwriting,
include an underwriter, acting in the ordinary course
of his business as an underwriter, who acquires shares
pursuant to any issue or offer of shares underwritten
by him.
(4) A person shall be deemed not to acquire or hold any share if he
acquires or holds such share solely as nominee or bare trustee
thereof and has no beneficial or economic interest therein other
than the right to be paid normal nominee or trustee fees or
remuneration.
(5) The "market price" per share of a class on any date shall be
deemed to be the average of the daily closing prices of shares of
that class for ten consecutive trading days commencing no more
than 15 trading days before such date. The closing price for each
day shall be the last reported sales price regular way on the New
York Stock Exchange, or, if not reported on such Exchange, on the
Composite Tape or, in case no such reported sales take place on
such day, the average of the reported closing bid and asked
quotations on the New York Stock Exchange, or, if such shares are
not listed on such Exchange or no such quotations are available,
the last sales price in the over-the-counter market reported by
the National Association of Securities Dealers Automated
Quotations System, or if not reported by such System, the average
of the high bid and low asked quotations in the over-the-counter
market as reported by National Quotation Bureau, Incorporated, or
any similar organization, or if no such quotations are available,
the fair market price as determined by a majority of the
Continuing Directors (whose determination shall be conclusive).
(6) For purposes of subparagraphs (1) and (2) of paragraph (B) of
this Bye-Law 128, in the event of a Business Combination upon
consummation
45
of which the Company would be the surviving corporation or
company or would continue to exist (unless it is provided,
contemplated or intended that as part of such Business
Combination or within one year after consummation thereof a plan
of liquidation or dissolution of the Company will be adopted or
effected), the term "other consideration to be received" shall
include (without limitation) A Shares or B Shares retained by
Shareholders of the Company other than the interested persons who
are parties to such Business Combination.
(7) "Continuing Director" means a Director of the Company who either
(i) was first elected as a Director prior to July 15, 2000 or
(ii) was designated (before his or her initial election as a
Director) as a Continuing Director by a majority of the then
Continuing Directors.
(8) The term "affiliate" means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with another person. A person who is
the beneficial owner of ten percent (10%) or more of a company's
outstanding voting shares shall be deemed to control such
company.
(9) A company shall be deemed to be a "subsidiary" of another if: (i)
the other is a shareholder of it, either directly or indirectly
through one or more other subsidiaries, and controls the
composition of its board of directors; or (ii) the other
beneficially owns, either directly or indirectly through one or
more other subsidiaries, more than half in nominal value of its
issued share capital; or (iii) it is a subsidiary of any company
which is in turn, either directly or indirectly through one or
more other subsidiaries, a subsidiary of the other company. For
the purpose of this definition "company" includes any body
corporate, wherever incorporated.
(10) The term "interested person" means a person to whom paragraph (1)
of Bye-Law 129 applies but excludes the Company and each of its
46
subsidiaries. No shares, or rights over shares, carrying voting
rights in the Company held or beneficially owned by the Company
or any of its subsidiaries shall be aggregated with such shares
or rights over shares held or beneficially owned by any other
person in determining whether such person is an interested
person.
(11) An interested person shall be deemed to have acquired a share of
the Company at the time when such interested person became the
beneficial owner thereof. With respect to shares owned by
affiliates or other persons whose ownership is attributed to an
interested person under the foregoing definitions, if the price
paid by such interested person for such shares is not
determinable, the price so paid shall be deemed to be the higher
of (a) the price paid upon acquisition thereof by the affiliate
or other person or (b) the market price of the shares in question
at the time when the interested person became the beneficial
owner thereof.
(12) The term "person acting in concert" includes: (i) persons who,
pursuant to an agreement, arrangement or understanding (whether
formal or informal), actively cooperate either in the acquisition
or holding by any of them of shares or the beneficial ownership
of shares, or rights over shares, carrying voting rights in the
Company, or in the exercise of voting rights with respect to
shares in the Company; (ii) a company with any of its directors
(or their spouses, minor children, nominees, related trusts or
companies in which any director holds or beneficially owns ten
percent (10%) or more of the shares, or rights over shares,
carrying voting rights); (iii) a company with the trustees or
managers of any of its pension, provident or employee benefit
funds or any of its employee stock option schemes; (iv) a person
who is a fund manager with any investment company, unit trust or
other person whose investments such person manages on a
discretionary basis, in respect of the relevant investment
accounts; (v) a company with its parent company or any of its
subsidiaries; and (vi) a company, in which ten
47
percent (10%) or more of the shares, or rights over shares,
carrying voting rights are held or beneficially owned by a
person, with any other company in which ten percent (10%) or more
of the shares, or rights over shares, carrying voting rights are
held or beneficially owned by the same person.
(13) The term "rights over shares" includes any rights acquired by a
person by virtue of an agreement to acquire shares or an option
to acquire shares or an irrevocable commitment to accept an offer
to acquire shares and includes warrants or options to subscribe
for shares in the Company if immediately exercisable, as if such
warrants or options had at the relevant time been exercised.
(14) The term "securities" includes shares, debentures, and options or
warrants to subscribe for or purchase any shares or debentures,
and any rights in respect thereof or any other right which if
exercised would enable a person, not otherwise able so to do, to
exercise voting rights.
(15) The term "voting rights" means the voting rights attributable to
the share capital of the Company which are then currently
exercisable or, in the case of options and warrants to subscribe
for shares, would be exercisable if those options and warrants
were themselves exercised, at a general meeting of the Company.
48
(D) A majority of the Continuing Directors shall have the power to
determine for the purposes of this Bye-Law 128 and Bye-Law 129, on the
basis of information known to them, (i) the number of shares, or
rights over shares, carrying voting rights of which any person is the
beneficial owner, (ii) whether a person is an affiliate of another or
acting in concert with another, (iii) whether a person has an
agreement, arrangement or understanding with another as to the matters
referred to in subparagraph (3) of paragraph (C), and (iv) any matters
referred to in subparagraph (11) of paragraph (C). Any such
determination by the Continuing Directors shall be final and binding
on all persons.
(E) The Company, whether acting through the Directors or by its
Shareholders generally, shall have no power to propose or enter into
any compromise or arrangement pursuant to the Companies Acts (i) in
connection with any Business Combination or (ii) providing for any
revocation, alteration or amendment of this Bye-Law 128 or any other
amendment of its Memorandum of Association or these Bye-Laws which
could have the effect of modifying or circumventing this Bye-Law 128.
If the Directors shall submit an amalgamation agreement for approval
to any meeting of the holders of shares of the Company or to the
holders of shares of any class of the Company pursuant to the
Companies Acts in connection with any Business Combination, then the
requisite quorum for such meeting shall be ninety percent (90%) of all
shares of the Company and/or of the class in question at the time in
issue and entitled to vote and, for the purpose of such submission and
approval, the A Shares and the B Shares shall be deemed to be of the
same class but in any event shall carry their respective voting
rights.
(F) Any revocation, alteration or amendment of this Bye-Law 128, or any
other revocation, alteration or amendment of the Company's Memorandum
of Association or these Bye-Laws which would have the effect of
modifying or permitting circumvention of this Bye-Law 128, shall
require the favourable vote, at a general meeting of the Company, of
the holders of at least ninety percent (90%) of the then outstanding
shares carrying voting rights at a general meeting of the Company;
provided, however, that this paragraph (F) shall not apply to, and
such ninety percent (90%) vote shall not be required for, any such
49
revocation, alteration or amendment recommended to Shareholders by the
favourable vote of not less than a majority of the Continuing
Directors.
(G) Nothing contained in this Bye-Law 128 shall be construed to relieve
any interested person from any fiduciary obligation imposed by law.
129. (1) Except as permitted by paragraph (2) of this Bye-Law 129, if at any
time a person acquires or becomes the beneficial owner of any shares,
or rights over shares, carrying voting rights in the Company which,
alone or when aggregated with any shares or rights over shares which
such person then already holds or of which such person is then already
the beneficial owner, would carry fifteen percent (15%) or more of the
total voting rights which may be cast at any general meeting of the
Company (such fifteen percent (15%) of the total voting rights which
may be cast at any general meeting being herein referred to as the
"threshold"), then such person shall not be entitled, in respect of
that portion of any shares, or rights over shares, carrying voting
rights in the Company held or beneficially owned by him in excess of
the threshold, (i) to vote such shares at any general meeting of the
Company either personally or by proxy or by his attorney or, if a
company or a corporation, by its duly authorised representative or to
exercise any other right conferred by shareholding in the Company in
relation to general meetings of the Company as to which the record
date or scheduled meeting date falls within a period of five (5) years
from the date such person first acquired or became the beneficial
owner of shares, or rights over shares, carrying voting rights in
excess of the threshold, or (ii) to give any written consent with
respect thereto for a period of five (5) years from the date such
person first acquired or became the beneficial owner of shares, or
rights over shares, carrying voting rights in excess of the threshold.
For purposes of the foregoing sentence, no shares, or rights over
shares, carrying voting rights in the Company held or beneficially
owned by the Company or any of its subsidiaries shall be aggregated
with such shares or rights over shares held or beneficially owned by
any other person.
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(2) The restrictions contained in paragraph (1) of this Bye-Law 129 shall
not apply to the Company or any of its subsidiaries or:
(a) any person who, on July 15, 2000, holds or is the beneficial
owner of shares, or rights over shares, carrying voting rights in
excess of the threshold and continues at all times thereafter to
hold or be the beneficial owner of shares, or rights over shares,
carrying voting rights in excess of the threshold; or
(b) to any person who holds or is the beneficial owner of shares, or
rights over shares, carrying voting rights in the Company if the
acquisition by such person of such shares or rights over shares
in excess of the threshold is approved prior to the threshold
being exceeded (i) by Resolution adopted in general meeting by at
least ninety percent (90%) of the shares carrying voting rights
in the Company not held or beneficially owned by any person
holding shares or rights over shares with respect to which such
vote is being taken, or (ii) by resolution adopted by a majority
of the Continuing Directors followed by a Resolution adopted by
in excess of fifty percent (50%) of the shares carrying voting
rights in the Company not held or beneficially owned by any
person holding shares or rights over shares with respect to which
such vote is being taken.
(3) The Company, whether acting through the Directors or by its
Shareholders generally, shall have no power to propose or enter into
any compromise or arrangement pursuant to the Companies Acts providing
for any revocation, alteration or amendment of this Bye-Law 129 or any
other amendment of its Memorandum of Association or these Bye-Laws
which could have the effect of modifying or circumventing this Bye-Law
129.
(4) Any revocation, alteration or amendment of this Bye-Law 129, or any
other revocation, alteration or amendment of the Company's Memorandum
of Association or these Bye-Laws which would have the effect of
modifying or
51
permitting circumvention of this Bye-Law 129, shall require the
favourable vote of the holders of at least ninety percent (90%) of the
then outstanding shares carrying voting rights, at a general meeting
of the Company; provided, however, that this paragraph (4) shall not
apply to, and such ninety percent (90%) vote shall not be required
for, any such revocation, alteration or amendment recommended to
Shareholders by the favourable vote of not less than a majority of the
Continuing Directors.
(5) Nothing contained in this Bye-Law 129 shall be construed to relieve
any interested person from any fiduciary obligation imposed by law.
* * * * *
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Schedule 1 to the Bye-Laws
The rights and restrictions attaching to the A Shares are as follows:
1. Designation.
The designation of the A Shares shall be "Class A Common Shares". All A
Shares shall rank pari passu in all respects.
2. Dividend Rights.
The A Shares and the B Shares shall rank pari passu with respect to the
rights to receive dividends and other distributions payable in cash or in kind
when, as and if declared by the Board, provided however that, in relation to a
distribution of A Shares or B Shares or rights, options or warrants to subscribe
for A Shares or B Shares:
(a) A Shares, and rights, options and warrants to subscribe for A Shares,
shall be distributed only to the holders of A Shares;
(b) B Shares, and rights, options and warrants to subscribe for B Shares,
shall be distributed only to the holders of B Shares; and
(c) the ratio of the number of A Shares outstanding to the number of B
Shares outstanding, each on a fully diluted basis, shall be the same
immediately after such distribution as immediately prior thereto except as
may be provided under any shareholder rights plan adopted under Bye-Law 5.
3. Voting Rights.
Subject to the provisions of the Bye-Laws of the Company, at any general
meeting of the Company each holder of A Shares shall be entitled to one-tenth of
one vote for each A Share held by him. Holders of A Shares shall vote together
as a class with holders of B Shares.
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4. Rights Agreement.
The A Shares and the B Shares collectively shall be deemed "Voting Shares"
of the Company for the purposes of any shareholder rights plan adopted under
Bye-Law 5 of the Company.
5. Other Rights.
Except as otherwise provided herein or in the Companies Acts or the
Bye-Laws of the Company, the A Shares and the B Shares shall rank pari passu and
be treated equally in all respects.
6. Conversion into A Shares.
No holder of shares in the Company shall be entitled to convert such shares
or any of them into A Shares except pursuant to rights attached thereto
expressly conferring such entitlement.
7. Consolidation and Sub-division.
No Resolution shall be proposed at any general meeting of the Company for
the consolidation or sub-division of any shares of the Company which
contemplates that the ratio of the number of A Shares outstanding to the number
of B Shares outstanding shall change as a consequence of the passing of the
Resolution.
8. Amalgamation Agreement.
In any case where the Board shall be required to submit an amalgamation
agreement for approval to a general meeting of the Company, the A Shares and the
B Shares shall be deemed to be of the same class but in any event shall carry
their respective voting rights.
* * * * *
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Schedule 2 to the Bye-Laws
The rights and restrictions attaching to the B Shares are as follows:
1. Designation.
The designation of the B Shares shall be "Class B Common Shares". Each
certificate representing, immediately prior to their classification as B Shares,
common shares of the Company shall be deemed to represent a like number of B
Shares. All B Shares shall rank pari passu in all respects.
2. Dividend Rights.
The A Shares and the B Shares shall rank pari passu with respect to the
rights to receive dividends and other distributions payable in cash or in kind
when, as and if declared by the Board, provided however that, in relation to a
distribution of A Shares or B Shares or rights, options or warrants to subscribe
for A Shares or B Shares:
(a) A Shares, and rights, options and warrants to subscribe for A Shares,
shall be distributed only to the holders of A Shares;
(b) B Shares, and rights, options and warrants to subscribe for B Shares,
shall be distributed only to the holders of B Shares; and
(c) The ratio of the number of B Shares outstanding to the number of A
Shares outstanding, each on a fully diluted basis, shall be the same
immediately after such distribution as immediately prior thereto except as
may be provided under any shareholder rights plan adopted under Bye-Law 5.
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3. Voting Rights.
Subject to the provisions of the Bye-Laws of the Company, at any general
meeting of the Company each holder of B Shares shall be entitled to one vote for
each B Share held by him. Holders of B Shares shall vote together as a class
with holders of A Shares.
4. Conversion.
(a) Each holder of B Shares shall be entitled at any time and from time to
time by notice in writing delivered to the Company (a "Conversion Notice") to
convert such number of B Shares held by him as may be specified in the
Conversion Notice into the like number of A Shares. The Conversion Notice shall
be in such form as the Board may from time to time prescribe and shall be
delivered to the Company at the specified office (the "Conversion Office") of
such agent as the Company may from time to time designate for the purpose (the
"Conversion Agent") during the usual business hours of the Conversion Agent.
(b) A Conversion Notice to be effective must be accompanied by delivery up
of the certificate or certificates comprising the B Shares to be converted and
by such other evidence (if any) as the Company or the Conversion Agent may
require to prove the title of the person exercising the right to convert.
(c) A Conversion Notice shall not be withdrawn without the written consent
of the Company or the Conversion Agent and shall take effect immediately prior
to the close of business on the date of delivery of the Conversion Notice as
aforesaid, together with the required certificates in proper order for
conversion and any amount payable pursuant to the provisions of the sentence
next following (the "Conversion Date"). If the Conversion Notice shall specify
that any certificate for A Shares to be delivered pursuant thereto shall be
issued in a name other than that of the holder of record of the B Shares to be
converted, the person or persons requesting the issuance thereof shall pay to
the Company the amount of any tax which may be payable in respect of any
transfer necessary for such issuance or shall establish to the satisfaction of
the Company that such tax has been paid or is not payable.
56
(d) On the Conversion Date, the B Shares comprised in the Conversion Notice
shall automatically be converted into A Shares unless, pursuant to paragraph (g)
hereof, conversion shall be effected on the Conversion Date by means of the
purchase of B Shares and the issue to the holder of a like number of A Shares.
In any case, the A Shares arising from such conversion shall thereupon rank pari
passu in all respects with all other A Shares for the time being in the capital
of the Company, with the right to participate in full in all dividends declared
on the A Shares payable to holders of record of A Shares on or after the
Conversion Date whether or not such dividends are declared wholly or in part in
respect of a period prior to the Conversion Date.
(e) As soon as practicable after the Conversion Date, the Company shall
deliver or cause to be delivered at the Conversion Office to or upon the written
order of the holder a certificate or certificates representing the number of A
Shares to which he was entitled upon conversion of the B Shares held by him.
Except as otherwise provided in paragraph (c) hereof, the issuance of such
certificate or certificates shall be made without charge for any stamp or other
similar tax in respect of such issuance.
(f) Upon conversion by a holder of only part of the B Shares held by him,
the Company shall at its own expense deliver or cause to be delivered to him at
the Conversion Office a new certificate or certificates representing the number
of B Shares remaining unconverted by him.
(g) Conversion of the B Shares may be effected in such manner as the Board
may, subject to the provisions of the Companies Acts and the Bye-Laws of the
Company, from time to time determine and, without prejudice to the generality of
the foregoing, the Board is hereby authorized pursuant to Section 42A of the
Companies Acts to effect such conversion by means of the purchase of B Shares in
such manner and at such price as it may determine. In the case of a conversion
by such means:
(i) the Board may effect the purchase of the relative B Shares out of
the amount paid up on such B Shares, out of amounts which would
otherwise be available for dividend, out of the proceeds of a fresh
issue of shares, or in any other manner for the time being permitted
by law; and
57
(ii) the A Shares to be issued upon such conversion shall be issued,
credited as fully paid-up and non-assessable.
(h) On or promptly after the conversion of B Shares into A Shares, the
Company shall list the A Shares so arising upon each national securities
exchange upon which the outstanding A Shares are listed at the time of such
conversion, or if the outstanding A Shares are not then listed upon a national
securities exchange but are included in the National Association of Securities
Dealers Automated Quotations System will cause such shares to be so included.
5. Rights Agreement.
The A Shares and the B Shares collectively shall be deemed "Voting Shares"
of the Company for the purposes of any shareholder rights plan adopted under
Bye-Law 5 of the Company.
6. Other Rights.
Except as otherwise provided herein or in the Companies Acts or the
Bye-Laws of the Company, the A Shares and the B Shares shall rank pari passu and
be treated equally in all respects.
7. Consolidation and Sub-division.
No Resolution shall be proposed at any general meeting of the Company for
the consolidation or sub-division of any shares of the Company which
contemplates that the ratio of the number of A Shares outstanding to the number
of B Shares outstanding shall change as a consequence of the passing of the
Resolution.
8. Amalgamation Agreement.
In any case where the Board shall be required to submit an amalgamation
agreement for approval to a general meeting of the Company, the A Shares and the
B Shares shall be deemed to be of the same class but shall in any event carry
their respective voting rights.
58