Bye-Laws
of
UPROAR LTD.
(formerly E-Pub (Holdings) Limited)
I HEREBY CERTIFY that the following is a true copy of the Bye-Laws of Uproar
Ltd. (the "Company") as adopted by the Shareholders of the Company dated 19th
March, 1999, in substitution for the Bye-laws of the Company adopted at the
Statutory Meeting of the Company held on 21st July, 1997.
/s/ [illegible]
---------------
Director
M.L.H. Quin & Co.
Barristers & Attorneys
Bermuda Commercial Bank Building [SEAL]
44 Church Street
Hamilton, Bermuda HM12
Telephone: (441) 292 7070
Facsimile: (441) 292 8899
email: info@mlhq.bm
INDEX
BYE-LAW PAGE
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INTERPRETATION 1
1. Definitions and Interpretation
SHARE CAPITAL AND SHARE RIGHTS
2. Rights of Shares 2
3. Modification of Share Rights 3
4. Increase, reduction or alteration of Capital 3
5. Power to Issue Shares 3
6. Registered Holder of Shares 3
7. Register of Members 3
8. Share Certificates 4
9. Lien on Shares 4
10. Call on Shares 4
11. Forfeiture of Shares 5
TRANSFER OF SHARES
12. Transfer of Shares 5
13. Instrument of Transfer 5
14. Restrictions on Transfer 5
IS. Transfers by Joint Holders 5
TRANSMISSION OF SHARES
16. Representative of Deceased Member 6
17. Registration on Death or Bankruptcy 6
GENERAL MEETINGS
18. Annual General Meetings 6
19. Special General Meetings/Requisition of Members 7
20. Short Notice 7
21. Accidental Omission of Notice of General Meeting 8
22. Quorum for General Meetings 8
23. Adjournment of Meetings 8
24. Telephone etc. Meetings 8
25. Attendance of Directors 8
26. Chairman of Meetings 8
27. Voting at Meetings 9
28. Equality of Votes 9
29. Seniority of Joint Holders Voting 9
30. Objections at Meetings 9
31. Proxies and Corporate Representatives 9
32. Written Resolutions 10
BOARD OF DIRECTORS
33. Appointment of Directors 10
34. Retirement and Removal of Directors 11
35. Resignation and Disqualification of Directors 11
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BYE-LAW PAGE
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36. Register of Directors and Officers 11
37. Directors' Fees and Additional Remuneration and Expenses 12
38. Directors' Interests 12
POWERS AND DUTIES OF THE BOARD
39. Management of the Company 12
40. Power to Borrow and Charge Property 12
41. Power to Provide Benefits 12
42. Power to Appoint Managing Director or Chief Executive Officer 13
43. Power to Appoint Manager and to Appoint and Dismiss Employees 13
44. Power to Authorise Specific Actions and Appoint Attorney 13
45. Power to Delegate 13
46. Exercise of Power to Purchase Shares of, or discontinue, the Company 13
47. Meetings of the Board 14
48. Notice of Meetings of the Board 14
49. Quorum for Board Meetings 14
5O. Chairman of Meetings 14
51. Committees of Directors 14
52. Written Resolutions 15
53. Acts Valid notwithstanding Defect in Appointment 15
OFFICERS OF THE COMPANY
54. Officer of the Company 15
55. Appointment of Officers 15
56. Remuneration and Duties of Officers 16
57. Minutes 16
THE SEAL
58. The Seal 16
59. Manner in which Seal is to be affixed 16
DIVIDENDS AND OTHER DISTRIBUTIONS
60. Declaration of Dividends by the Board 16
61. Other Distributions 16
62. Reserve Fund 17
63. Deduction of Amounts due to the Company 17
64. Record Dates 17
CAPITALISATION OF PROFITS
65. Issue of Bonus Shares 17
ACCOUNTS AND FINANCIAL STATEMENTS
66. Records of Account 17
67. Financial Year End 17
68. Financial Statements 18
AUDIT
69. Auditors 18
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BYE-LAW PAGE
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NOTICES
70. Notices to Members 18
71. Notice of General Meetings 18
WINDING UP
72. Winding-up/Distribution by Liquidator 18
INDEMNITY
73. Indemnification of Directors and Officer 18
ALTERATION OF BYE-LAWS
74. Alteration of Bye-laws 19
iii
AMENDED AND RESTATED
BYE-LAWS
of
UPROAR LTD.
INTERPRETATION
1. Definitions and interpretation
1.1 In these Bye-Laws:
"Act means the Companies Act 1981;
"Bermuda" means the Islands of Bermuda;
"Board" means the Board of Directors of the Company appointed or elected
pursuant to these Bye-laws and acting by resolution in accordance with the
Act and these Bye-laws or the Directors present at a meeting of Directors
at which there is a quorum;
"Company" means E-Pub (Holdings) Limited;
"Director" means a director of the Company appointed in accordance with
these Bye-laws;
"Member" means a member of the Company holding one or more shares and,
when two or more persons are registered as joint holders of shares, means
the person whose name stands first in the Register of Members as one of
such joint holders or all of such persons as the context requires.
"Officer" means any person appointed by the Board to hold an office in the
Company;
"Register of Directors and Officers" means the register of directors and
officers of the Company maintained by the Company in Bermuda;
"Register of Members" means the register of members of the Company
maintained by the Company in Bermuda;
"Registered Office" means the registered office of the Company which shall
be at such place in Bermuda as the Directors shall from time to time
appoint;
"Resident Representative" means any person appointed to act as resident
representative and includes any deputy or assistant resident
representative;
"Resolution" means a resolution of the Members, or where required, of a
separate class or separate classes of Members, adopted either in general
meeting or by written resolution, in accordance with these Bye-Laws;
"Seal" means the Common Seal of the Company and includes any duplicate
thereof;
"Secretary" means (subject to the provisions of the Act) the person for
the time being appointed to perform the duties of the Secretary of the
Company and includes an Assistant, Acting or Deputy Secretary;
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"Special Resolution" means a resolution of the Members or where required,
of a separate class or separate classes of Member, either adopted in
general meeting by Members representing not less than 50% of the issued
shares carrying the right to vote at such meetings or adopted by written
resolution in accordance with Bye-law #32.
1.2 In these Bye-laws, unless inconsistent with the context or the contrary
intention appears a reference to:
(a) "paid up" means paid up or credited as paid up;
"may" shall be construed as permissive;
"shall" shall be construed as imperative; and
a "share" means a share in the capital of the Company.
(b) any meeting (whether of the Directors, a committee appointed by the
Board, the Members or any class of the Members) includes any
adjournment of that meeting;
(c) the singular includes the plural and vice versa;
(d) the masculine includes the feminine and neuter respectively;
(e) persons include companies, associations or bodies of persons, whether
corporate or not;
(f) writing includes typewriting, printing, lithography, photography and
other modes of representing or reproducing words in a legible and
non-transitory form;
(g) a bye-law is a reference to a Bye-law of these Bye-laws; and
(h) a statute or law in a reference to a Bermuda statute or law and a
provision of any statute or law is a reference to that provision as
amended or re-enacted.
1.3 Unless otherwise provided in these Bye-laws, any terms defined in the Act
in force at the date when these Bye-Laws or any part hereof are adopted
and used in these Bye-Laws shall bear the same meaning in these Bye-Laws
or such part (as the case may be).
1.4 For the purposes of these Bye-laws a corporation shall be deemed to be
present in person if its representative duly authorised pursuant to the
Act is present.
1.5 The index to and the headings in these Bye-laws are for convenience only
and are to be ignored in construing these Bye-laws.
SHARE CAPITAL AND SHARE RIGHTS
2. Rights of shares
Subject to any special rights conferred on the holders of any share or
class of shares, any share in the Company may be issued with or have
attached thereto such preferred, deferred, qualified or other special
rights or such restrictions, whether in regard to dividend, voting, return
of capital or otherwise, as the Company may by Resolution determine or, if
there has not been any such determination or so far as the same shall not
make specific provision, as the Board may determine.
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3. Modification of share rights
3.1 Subject to the Act, all or any of the rights for the time being attached
to any class of shares for the time being issued may from time to time
(whether or not the Company is being wound up) be altered or abrogated
with the consent in writing of the holders of not less than 50% of the
issued shares of that class or with the sanction of a Resolution of the
holders of such shares voting in person or by proxy at a separate general
meeting of the holders of the shares of that class in accordance with
Section 47(7) of the Act.
3.2 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 or issue of such shares, be deemed to be altered
by the creation or issue of further shares ranking pari passu therewith.
4. Increase, reduction or alteration of Capital
4.1 The Company may from time to time by Special Resolution change the
currency of denomination of, increase, alter or reduce its share capital
in accordance with Sections 45 and 46 of the Act.
4.2 Where any fraction of a share or other difficulty arises an any
alteration, the Board may settle the same as it thinks fit including,
without limitation to the generality of the foregoing, the issue to
Members of fractions of shares and/or arranging for the sale and transfer
of fractions of shares of Members.
5. Power to Issue shares
5.1 Subject to the Act, any preference shares may be issued or converted into
shares that at a determinable date or at the option of the Company, are
liable to be redeemed on such terms and in such manner as the Company
before the issue or conversion may by Resolution determine.
5.2 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 otherwise dispose of them to such persons, at such
times and for such consideration and upon such terms and conditions as the
Board may determine.
5.3 The Board may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by law.
6. Registered holder of shares
6.1 The Company may treat the registered holder of any share as the absolute
owner thereof and shall not be bound to recognise (even when having notice
thereof) any equitable or other claim to, or interest in, any share on the
part of any other person.
6.2 Any dividend, interest or other monies payable in cash in respect of
shares may be paid by cheque or draft sent through the post directed to
the Member at that Member's address in the Register of Members or, in the
case of joint holders, to such address of the holder first named in the
Register of Members, or to such person and to such address as the holder
or joint holders may in writing direct. If two or more persons are
registered as joint holders of any shares any one of such holders can give
an effective receipt for any dividend paid in respect of those shares.
7. Register of Members
The Secretary shall establish and maintain the Register of Members at the
Registered Office in the manner prescribed by the Act. Unless the Board
otherwise determines, the Register of Members shall be open to inspection
in the manner prescribed by the Act between 10.00 a.m. and 12.00 noon
3
on every working day. Unless the Board so determines, no Member or
intending Member shall be entitled to have entered in the Register of
Members any indication of any trust or any equitable, contingent, future
or partial interest in any 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 6.1.
8. Share certificates
8.1 The preparation, issue and delivery of certificates shall be governed by
the Act. In the case of a share held jointly by several persons, delivery
of a certificate to one or several joint holders shall be sufficient
delivery to all.
8.2 The Company shall not be obliged to complete or deliver share certificate
unless specifically called upon to do so by the person to whom such shares
have been allotted or transferred.
8.3 If a share certificate shall be proved to the satisfaction of the Board to
have been defaced, lost, worn out or destroyed the Board may cause a new
certificate to be issued and request an indemnity for the lost certificate
if it sees fit.
9. Lien on shares
9.1 The Company shall have a first lien on every share (not being a fully paid
share for all moneys called or payable in respect of such share, and the
Company shall also have a first lien on every share (other than a fully
paid share) registered in the name of a Member, whether singly or jointly,
for all the debts and liabilities, whether actual or contingent or owed
singly or jointly with any other person, of that Member to the Company.
The Company's lien on a share shall extend to all dividends payable
thereon. The Board may at any time waive any lien that has arisen or
declare any share to be wholly or in part exempt from the provisions of
this Bye-law.
9.2 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 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.
9.3 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 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 shall his title to the share be
affected by any irregularity or invalidity in the proceedings relating to
the sale.
10. Call on shares
10.1 The Board may from time to time make calls upon a Member in respect of any
moneys unpaid on the shares allotted to or held by that Member and if a
call is not paid on or before the day appointed for payment, the Member
may at the discretion of the Board be liable to pay to the Company
interest on the unpaid amount of any such call at such rate as the Board
may determine, from the date on which that call was payable to the actual
date of payment. The joint holders of a share shall be jointly and
severally liable to pay all calls in respect thereof. A call may be
revoked or postponed as the Board may determine.
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10.2 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.
11. Forfeiture of shares
11.1 If a Member fails to pay any call on the day appointed for payment
thereof, the Board may at any time thereafter during such time as any part
of the call remains unpaid serve a notice on him requiring payment of so
much of the call as is unpaid, together with any interest which may have
accrued.
11.2 The notice shall name a further day (not being less than 14 days from the
date of the notice) on or before which, and the place where, the payment
is to be made and shall state that, if the payment is not paid on or
before the day and at the place appointed, the shares in respect of which
such call is payable will be liable to be forfeited. The Board may accept
the surrender of any share liable to be forfeited and, in such case,
references in these Bye-Laws to forfeiture shall include surrender.
11.3 If the requirements of any such notice are not complied with, any such
share may at any time thereafter before payment of such call and interest
due in respect thereof be forfeited by a resolution of the Board to that
effect whereupon such share shall become the property of the Company and
may be disposed of as the Board shall determine. Any forfeiture shall
include all dividends declared in respect of the forfeited shares and not
actually paid before the forfeiture.
11.4 A Member whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares but shall, notwithstanding the forfeiture,
remain liable to pay to the Company all calls owing on such shares at the
time of forfeiture and all interest due thereon and the Company may
enforce payment without being obliged to make any allowance for the value
of the shares forfeited.
TRANSFER OF SHARES
12. Transfer of shares
Subject to the Act and to any applicable restrictions in these Bye-Laws,
any Member 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.
13. Instrument of transfer
The instrument of transfer of a share shall be signed by or on behalf of
the transferor alone except where the shares the subject of the instrument
of transfer have not been fully paid up in which case the instrument of
transfer shall be signed by the transferor and 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 of Members in respect
thereof. All Instruments of transfer when registered may be retained by
the Company.
14. Restrictions on transfer
The Board may, in its absolute discretion and without assigning any reason
therefor refuse to register the transfer of a share which has not been
fully paid up.
15. Transfers by joint holders
The joint holders of any share may transfer that share to one or more of
those joint holders, and the surviving holder or holders of any share
previously held by them jointly with a deceased Member may transfer any
such share to the executors or administrators of that deceased Member.
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TRANSMISSION OF SHARES
16. Representative of deceased Member
In the case of the death of a Member, the survivor or survivors where the
deceased Member was a joint holder, and the legal personal representatives
of the deceased Member, where he was sole holder, shall be the only
persons recognised by the Company as having any title to his shares.
Nothing contained in these Bye-laws shall release the estate of a deceased
holder (whether sole or joint) from any liability in respect of any share
held by him solely or jointly with other persons. Subject to Section 52 of
the Act, for the purpose of this Bye-Law, legal personal representative
means the executor or administrator of a deceased Member or such other
person as the Board may in its absolute discretion determine to be the
person properly authorized to deal with the shares of a deceased Member.
17. Registration on death or bankruptcy
17.1 Any person becoming entitled to a share on the death or bankruptcy of a
Member may be registered as a Member on such evidence as the Board may
deem sufficient or may elect to have some person nominated by him
registered as the transferee thereof. If the person so entitled elects to
be registered himself, he shall deliver to the Company a notice in writing
to that effect signed by him. If he elects to have his nominee registered,
he shall execute in favour of his nominee an instrument of transfer of
such share. On presentation of the notice or instrument of transfer (as
the case may be) to the Board together with such evidence as the Board may
require to prove the title of the person so entitled, the person so
entitled or the transferee (as the case may be) shall be registered as a
Member but the Board shall, in either case, have the same right to decline
or suspend registration as it would have had in the case of a transfer of
the share by that Member before his death or bankruptcy (as the case may
be).
17.2 Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under
Bye-Law 17.1.
GENERAL MEETINGS
18. Annual general meetings
18.1 An annual general meeting of the Company shall be held in each calendar
year in accordance with the requirements of the Act at such time and place
as the Board shall appoint. Notice in writing shall be given to each
Member entitled to receive notice thereof not fewer than 21 nor more than
60 days (excluding the day on which it is served or deemed to be served
and the day for which it is given) specifying the place, date and time of
the meeting, that the election of Directors will take place at the meeting
and, as far as practicable, the general nature of the business to be
considered.
18.2 Nominations of persons for election to the Board and the proposal of
business to be considered by the Members may be made at an annual general
meeting (a) pursuant to the Company's notice of meeting, by or at the
direction of the Board of Directors in accordance with these Bye-laws or
(b) by any Member of the Company who was a Member of record at the time of
giving of notice provided for in this Bye-law 18, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in
this Bye-law 18.
18.3 For nominations or other business to be properly brought before an annual
general meeting by a Member pursuant to clause (b) of Bye-law 18.2, the
Member must have given timely notice thereof in writing to the Secretary
and such other business must otherwise be a proper matter for Member
action. To be timely a Member's notice shall be delivered to the Secretary
at the principal executive offices of the Company not later than the close
of business on the one hundred and twentieth (120th) day nor earlier than
the close of business on the one hundred and fiftieth (150th) day prior to
the first
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anniversary of the date of the notice delivered to Members in connection
with the preceding year's annual general meeting; provided, however, that
if either (i) the date of the annual general meeting is more than thirty
(30) days before or more than sixty (60) days after such an anniversary
date or (ii) if no notice was delivered to Members in connection with the
preceding year's annual general meeting, notice by the Member to be timely
must be so delivered not earlier than the close of business on the
ninetieth (90th) day prior to such annual general meeting or the close of
business on the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made by the Company.
Such Member's notice shall set forth (a) as to each person whom the Member
proposes to nominate for election or reelection as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended of the U.S.A. (the "Exchange Act")
(including such person's written consent to being named in the notice as a
nominee and to serving as a director if elected); (b) as to any other
business that the Member proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material
interest in such business of such Member and the beneficial owner, if any,
on whose behalf the proposal is made; and (c) as to the Member giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such Member, as they appear
on the Company's books, and of such beneficial owner and (ii) the class
and number of shares that are owned beneficially and held of record by
such Member and such beneficial owner.
18.4 Notwithstanding anything in the second sentence of Bye-law 18.3 to the
contrary, in the event that the number of directors to be elected to the
Board of the Company is increased and there is no public announcement by
the Company naming all of the nominees for director or specifying the size
of the increased Board at least seventy (70) days prior to the first
anniversary of the preceding year's annual general meeting (or, it the
annual general meeting is held more than thirty (30) days before or sixty
(60) days after such anniversary date, at least seventy (70) days prior to
such annual general meeting), a Member notice required by this Bye-law 18
shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive office of the Company not later than
the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Company.
19. Special general meetings/requisition of Members
19.1 General meetings other than annual general meetings, which shall be
special general meetings, may be convened by the President and shall be
convened by the president or secretary at the request in writing of two
thirds of the Board.
19.2 The Board shall, on the requisition of Members holding at the date of
deposit of the requisition not less than one-tenth of such of the paid-up
share capital of the Company as at the date of deposit carries the right
to attend and vote at general meetings of the Company, forthwith proceed
to convene a special general meeting of the Company and Section 74 of the
Act shall apply.
19.3 A special general meeting shall be convened by the Board on not fewer than
21 days' and not more than 60 days' notice, (excluding the day on which it
is served or deemed to be served and the day for which it is given) in
writing to each Member entitled to receive notice thereof specifying the
place, date and time of the meeting and the general nature of the business
to be considered at the meeting.
20. Short notice
Notwithstanding that a meeting of the Company is called by shorter notice
than that specified in Bye-laws 18 or 19, it shall be deemed to have been
duly called if it is so agreed:
(a) in the case of a meeting called as an annual general meeting, by all
the Members entitled to attend and vote at the meeting;
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(b) in the case of any other meeting, by a majority in number of the
Members having the right to attend and vote at the meeting, being a
majority together holding not less than 95 percent in nominal value
of the shares giving that right.
21. Accidental omission of notice of general meeting
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.
22. Quorum for general meetings
No business shall be transacted at any general meeting unless a quorum in
present. Save as otherwise provided by these Bye-Laws, at least two
Members representing not less than 50% of the issued shares carrying the
right to vote in the Company, present in person or by proxy shall be a
quorum for all purposes, provided that if the Company shall have only one
Member, one Member present in person or by proxy shall constitute the
necessary quorum. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting shall stand adjourned to the
same day one week later, at the same time and place or to such other day,
time and place as the Secretary may determine.
23. Adjournment of meetings
The chairman of a general meeting may, with the consent of the Members at
any general meeting at which a quorum is present (and shall if so
directed), adjourn the meeting. Unless the meeting is adjourned to a
specific date and time, fresh notice of the date, time and place for the
resumption of the adjourned meeting shall be given to each Member entitled
to attend and vote at general meetings in accordance with these Bye-laws.
24. Telephone etc. meetings
Members may participate in any general meeting only by attendance in
person or attendance in person of their duly appointed proxy. Attendance
by telephone, electronic or other communication facilities shall not
constitute presence in person at such meeting.
25. Attendance of Directors
The Directors shall upon written request deposited at the Registered
Office be entitled to receive notice of, attend and speak at, general
meetings of the Company.
26. Chairman of meetings
The Chairman or President of the Company shall preside as chairman at
every general meeting. If at any meeting neither the Chairman nor the
President is present within twenty minutes after the time appointed for
holding the meeting, 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 no Director
is willing to act as chairman, the persons present and entitled to vote
shall elect one of their number to be chairman. The appointment of a
chairman to preside at any general meeting, in the absence of the Chairman
or President, may be made immediately if the Chairman and President have
indicated, in writing, to the Secretary that they shall not attend such
meeting.
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27. Voting at meetings
When a quorum is present at any meeting, the vote of the holders of a
majority of the shares having voting power present in person or
represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
Act of these By-laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
28. Equality of votes
In the case of an equality of votes, the chairman of the meeting shall not
have a second or casting vote and the proposed resolution shall fail.
29. Seniority of joint holders voting
In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders, and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
30. Objections at meetings
If at a general meeting;
(a) any objection is raised to the qualification of any voter, or
(b) any votes are counted which should not have been counted or which may
have been rejected; or
(c) any votes are not counted which should have been counted,
the objection or error shall not vitiate the decision of the meeting on
any resolution unless the objection or error is raised or pointed out at
the meeting at which the vote 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.
31. Proxies and corporate representatives
31.1 The instrument appointing a proxy shall be in writing under the hand of
the appointor or of his attorney authorised by him in writing or, if the
appointer is a company, either under its seal or under the hand of an
officer, attorney or other persons authorised to sign the same.
31.2 A Member may designate a person who is not a Member of the Company as his
proxy to represent such Member and vote on his behalf at any General
Meeting of the Company or any Meeting of the holders of any class of
shares. A proxyholder shall only vote in accordance with the direction
made in the instrument of proxy duly executed by Members granting such
proxy and in the absence of such direction the proxyholder shall be bound
to vote the proxy in favour of the proposals recommended by the Board of
the Company.
31.3 The instrument appointing a proxy together with such other evidence as in
its discretion, 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 adjournment or, in
either case, in any document sent therewith) at anytime prior to the
holding of the meeting or adjourned meeting at which the persons named in
the instrument proposes to vote.
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31.4 Instruments of proxy shall be in any common form or in such other form 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.
31.5 Subject to the Act, the Board may at its discretion waive any of the
provisions of these Bye-laws relating 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 Member at
general meetings or to sign written resolutions.
32. Written Resolutions
32.1 Subject to Bye-law 32.5, anything which may be done by Resolution of the
Company in general meeting or by Resolution of a meeting of any class of
the Members of the Company may, without a meeting and without any previous
notice being required, be done by Resolution in writing, signed by all of
the Members or their proxies, or in the case of a Member that is a
corporation (whether or not a company within the meaning of the Act) on
behalf of such Member, being all of the Members of the Company who at the
date of the Resolution in writing would be entitled to attend a meeting
and vote on the Resolution.
32.2 A written Resolution may be signed by, or in the case of a Member that is
a corporation (whether or not a company within the meaning of the Act), on
its behalf, all the Members of the Company, or any class thereof, in as
many counterparts as may be necessary.
32.3 For the purposes of this Bye-law 32, the date of a written resolution is
the date when the resolution is signed by, or in the case of a Member that
is a corporation (whether or not a company within the meaning of the Act),
on its behalf, the last Member to sign and any reference in any Bye-law to
the date of passing of a Resolution is, in relation to a Resolution in
writing made in accordance with this Bye-law, a reference to such date.
32.4 A Resolution in writing made in accordance with this Bye-Law 32 is as
valid as if it has been passed by the Company in general meeting or, if
applicable, by a meeting of the relevant class of Members, of the Company,
as the case may be, and shall constitute minutes for the purposes of the
Act and these Bye-Laws.
32.5 This Bye-law 32 shall not apply to:
(a) a Resolution passed pursuant to Section 89(5) of the Act or
(b) a Resolution passed for the purpose of removing a Director before the
expiration of his term of office under these Bye-laws.
BOARD OF DIRECTORS
33. Appointment of Directors
33.1 The number of Directors which shall constitute the whole Board of
Directors of the Company shall be determined by the Members in general
meeting but shall not be less than two.
33.2 Without prejudice to the power of the Company by Resolution to appoint any
person to be a Director in accordance with these Bye-laws, the Board, by a
resolution passed by a majority of not less than 66.67% of the members of
the Board in office, 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 a casual vacancy.
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34. Retirement and Removal of Directors
34.1 At each annual general meeting one-third of the Directors or, if their
number is not three or a multiple of three, the number nearest to but not
exceeding one-third, shall retire from office. If there are fewer than
three directors who are subject to retirement by rotation, one shall
retire from office.
Subject to the Act and the Bye-laws, the Directors to retire by rotation
at an annual general meeting include, so far as necessary to obtain the
number required, first, a director who wishes to retire and not offer
himself for reappointment and, second, those directors who have been
longest in office since their last appointment or reappointment. As
between two or more who have been in office an equal length of time, the
director to retire shall, in default of agreement between them, be
determined by lot.
The directors to retire on each occasion (both as to number and identity)
shall be determined on the basis of the composition of the board at the
start of business on the date of the notice convening the annual general
meeting, disregarding a change in the number of identity of the directors
after that time, but before the close of the meeting.
A director who retires at an annual general meeting (whether by rotation
or otherwise) may, if willing to act, be reappointed. If he is not
reappointed or deemed reappointed, he may retain office until the meeting
appoints someone in his place or, if it does not do so, until the end of
the meeting.
At an annual general meeting at which a director retires by rotation the
Company may fill the vacancy and, if it does not do so, the retiring
director is, if willing, deemed reappointed unless it is expressly
resolved not to fill the vacancy or a resolution for the reappointment of
the director is put to the meeting and lost.
34.2 The Company may in general meeting remove a Director for cause provided
notice of any such meeting shall be served upon the Director concerned not
less than 21 days' before the meeting and he shall be entitled to be heard
at that meeting. Any vacancy created by the removal of a Director at a
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.
35. Resignation and Disqualification of Directors
The office of a Director shall be vacated if the Director:
(a) resigns by notice in writing to the Company;
(b) is or becomes of unsound mind or dies;
(c) is or becomes bankrupt or makes any arrangement or composition with
his creditors;
(d) is prohibited by law from being a Director;
(e) ceases to be a Director by virtue of the Act or is removed from
office pursuant to these Bye-Laws.
36. Register of Directors and Officers
The Secretary shall establish and maintain a Register of Directors and
Officers as required by the Act. The Register of Directors and Officers
shall be open to inspection in the manner prescribed by the Act between
10:00 a.m. and 12:00 noon on every working day.
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37. Directors' fees and additional remuneration and expenses
The remuneration (if any) of the Directors shall be determined from time
to time by the Company by Resolution and shall be deemed to accrue from
day to day. A Director may also be paid all travel, hotel and incidental
expenses properly incurred in attending and returning from meetings of the
Board, committees appointed by the Board, general meetings of the Company,
or in connection with the business of the Company or his duties as a
Director generally.
38. Directors' Interests
38.1 A Director, or a Director's firm, partner or any company with whom a
Director is associated, may act in a professional capacity for the Company
and that Director or that Director's firm, partner or such company shall
be entitled to remuneration for professional services as if such Director
were not a Director, provided that nothing in this Bye-law shall authorise
a Director or a Director's firm, partner or company to act as Auditor of
the Company.
38.2 A Director who is directly or indirectly interested in a contract or
proposed contract or arrangement with the Company shall declare 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 Act
38.3 Following a declaration being made pursuant to Bye-law 38.2 and unless
disqualified by the chairman of the relevant Board meeting, a Director may
vote in respect of any contract or proposed contract or arrangement in
which such Director is interested and may be counted in the quorum at such
meeting.
POWERS AND DUTIES OF THE BOARD
39. Management of the Company
39.1 In managing the business of the Company, the Board may exercise all such
powers of the Company as are not by statute or by these Bye-laws required
to be exercised by the Company in general meeting subject to the Act,
these Bye-Laws and to any directions given by the Company by Resolution.
39.2 No direction or alteration of these Bye-Laws made by the Company in
general meeting shall invalidate any prior act of the Board which would
have been valid if that direction or 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.
39.3 The Board may procure that the Company pays all expenses incurred in
promoting and incorporating the Company.
40. Power to borrow and charge property
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.
41. Power to provide benefits
The Board on behalf of the Company may provide benefits for any person
including any Director or former Director who has held any executive
office or employment with the Company or with any body
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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 benefit, or for the insurance of any such person.
42. Power to appoint managing director or chief executive officer
The Board may from time to time appoint one or more of the Directors to be
managing director or chief executive officer of the Company who shall,
subject to control of the Board, supervise and administer all of the
general business and affairs of the Company. The terms of any such
appointment as to period and remuneration (if any) shall be determined by
the Board.
43. Power to appoint manager and to appoint and dismiss employees
43.1 The Board may appoint a person to act as manager of the Company's day to
day business and may entrust and confer upon such manager such powers and
duties as it deems appropriate for the transaction or conduct of such
business.
43.2 The Board may appoint, suspend or remove any employee of the Company and
may fix his remuneration and determine his duties.
44. Power to authorise specific actions and appoint attorney
44.1 The Board may from time to time and at any time authorise any person to
act on behalf of the Company for any specific purpose and in connection
therewith to execute any agreement, document or instrument on behalf of
the Company.
44.2 The Board may from time to time and at any time 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 an attorney
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.
45. Power to delegate
45.1 The Board may entrust and confer on any Director or officer any of the
powers exercisable by it on such terms and conditions and 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.
45.2 The Board may delegate any of its powers to a committee appointed by the
Board which may consist partly or entirely of non-Directors and every such
committee shall conform to such directions as the Board may impose on it.
46. Exercise of power to purchase shares of, or discontinue, the Company
The Board may exercise all the powers of the Company to:
(a) purchase all or any of its own shares in accordance with Section 42A
of the Act; and
(b) continue the Company in a named country or jurisdiction outside
Bermuda in accordance with Section 132G of the Act.
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47. Meetings of the Board
47.1 The Board may hold meetings, both regular and special, for the despatch of
business, adjourn and otherwise regulate its meetings as it thinks fit.
47.2 Regular meetings of the Board may be held without notice at such time and
at such place as shall from time to time be determined by the Board. The
President or any two Directors may, and the Secretary, on the requisition
of the President or any two Directors, shall, at any time summon a special
board meeting on not less than two days' notice.
47.3 Questions arising at any Board meeting shall be determined by a majority of
votes and, in the event of an equality of votes, the resolution shall fail.
47.4 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.
48. Notice of meetings of the Board
48.1 Prior written notice of meetings of the Board specifying the date, time and
place of the meeting and a brief description of the business to be
conducted at the meeting shall be given to each Director.
48.2 Notice of a Board meeting shall be deemed to be duly given to a Director if
it is given to him personally or sent to him by post, facsimile, e-mail 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.
48.3 A Director may waive notice of any meeting either prospectively or
retrospectively.
49. Quorum for Board meetings
The quorum necessary for the transaction of the business of the Board shall
be a majority of the members of the Board of Directors in office (but in no
case less than two Directors). 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 Act 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.
50. Chairman of meetings
The Chairman (if any) of the Board or, in his absence, the Vice-Chairman
shall preside as chairman at every meeting of the Board. If there is no
such Chairman or Vice-Chairman, or if at any meeting the Chairman or the
Vice-Chairman 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.
51. Committees of Directors
51.1 The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more
of the directors of the Company. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee.
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51.2 In the absence of disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of
any such absent or disqualified member.
51.3 Any such committee, to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Company, and may
authorize the seal of the Company to be affixed to all papers which may
require it; but no such committee shall have the power or authority in
reference to adopting an agreement of merger or consolidation, recommending
to the Members the sale, lease or exchange of all or substantially all of
the Company's property and assets, recommending to the Members a
dissolution of the Company, a revocation of a dissolution or amending the
Bye-laws or Memorandum of Association of the Company; and, unless the
resolution or the Memorandum of Association expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of shares. Such committee or committees shall have
such name or names as may be determined from time to time by resolution
adopted by the Board.
51.4 The meetings and proceedings of any committee appointed by the Board shall
be governed by the provisions in these Bye-Laws for regulating the meetings
and proceedings of the Board so far as the same are applicable and are not
superceded by any regulations imposed by the Board. Each committee shall
keep regular minutes of its meetings and report the same to the Board when
required.
52. Written resolutions
A resolution in writing signed by all the Directors or by all the members
of a committee which may be in counterparts shall be as valid as if it had
been passed at a duly called and constituted meeting of the Board or
committee, as the case may be, such resolution to be effective on the date
on which the last Director signs the resolution.
53. Acts valid notwithstanding defect in appointment
All acts done by the Board, any committee, any person acting as a Director
or member of a committee or any person duly authorised by the Board or any
committee, shall, nothwithstanding 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.
OFFICERS OF THE COMPANY
54. Officers of the Company
The officers of the Company shall include a President and a Vice-President
or a Chairman and a Deputy Chairman (who shall be Directors), a Secretary
and such additional Officers (including, without limitation, assistant or
deputy secretaries) as the Board may from time to time determine all of
whom shall be deemed to be Officers for the purposes of these Bye-laws.
55. Appointment of Officers
The President and Vice-President or Chairman and Deputy Chairman shall be
elected by the Board as soon as possible after the statutory meeting and
each annual general meeting. Any person elected or appointed pursuant
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to this Bye-Law shall hold office until the close of the next annual
general Meeting or for such other period and upon such terms as the Board
may determine and the Board may revoke or terminate any such election or
appointment.
56. Remuneration and duties of Officers
Save as provided in the Act or these Bye-Laws, the powers, duties and
remuneration of the Officers of the Company shall be such (if any) as are
determined from time to time by the Board. A provision of the Act 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.
57. Minutes
The Directors shall cause minutes to be made and books kept for the purpose
of recording:
(a) all appointments of Officers made by the Directors;
(b) the names of the Directors and other persons (if any) present at each
meeting of Directors and of any committee;
(c) of all proceedings at meetings of the Company, of the holders of any
class of shares in the Company, and of committees;
(d) of all proceedings of managers (if any).
THE SEAL
58. The Seal
The Seal shall be in such form as the Board may from time to time
determine. The Board may adopt one or more duplicate seals for use outside
Bermuda.
59. Manner in which seal is to be affixed
A Seal shall only be used by authority of the Board or of a committee
constituted of the Board. Subject to these Bye-Laws, any Instrument to
which a Seal is affixed shall be signed by two Directors or the Secretary
and one Director, or by any two persons whether or not Directors or the
Secretary who have been authorized either generally or specifically to
attest to the use of the Seal provided that any Officer, Director or
Resident Representative may affix a Seal attested with his signature only
to authenticate copies of these Bye-Laws, the minutes of any meeting or any
other documents requiring authentication.
DIVIDENDS AND OTHER DISTRIBUTIONS
60. Declaration of dividends by the Board
The Board may, subject to these Bye-laws and in accordance with Section 54
of the Act, declare a dividend to be paid to Members, in proportion to the
number of shares held by them, and such dividend may be paid in cash or
wholly or partly in specie in which case the Board may fix the value for
distribution in specie of any assets.
61. Other distributions
The Board may declare and make such other distributions (in cash or in
specie) to the Members as may be lawfully made out of the assets of the
Company.
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62. Reserve fund
The Board may from time to time before declaring a dividend set aside, out
of the surplus or profits of the Company, such sum as it thinks proper as a
reserve fund to be used to meet contingencies or for equalising dividends
or for any other special purpose.
63. Deduction of amounts due to the Company
The Board may deduct from any dividend, distribution or other moneys
payable to a Member by the Company on or in respect of any shares all sums
of money (if any) presently payable by him to the Company on account of
calls on or in respect of shares of the Company or otherwise in respect of
monies owed by him to the Company.
64. Record dates
Notwithstanding any other provisions of these Bye-Laws, the Company may by
Resolution or the Board may fix, in advance, any date as the record date
for to payment of any dividend or distribution or the making of any
allotment or issue of shares or rights or entities to exercise any rights
in respect of any charge, conversion or exchange of shares and for the
purpose of identifying the persons entitled to receive notices of general
meetings or to express consent to corporate in writing without a meeting or
for the purpose of any other lawful action. Any such record date shall not
be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any action. A determination of the Members of
record entitled to notice of or to vote at a general meeting shall apply to
any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjournment meeting.
CAPITALISATION OF PROFITS
65. Issue of bonus shares
65.1 The Board may resolve to capitalise all or any amount for the time being
standing to the credit of any of the Company's share premium or other
reserve accounts or to the credit of the profit and loss account or
otherwise available for distribution by applying such sum in paying up
unissued shares to be allotted as fully paid bonus shares pro rata to the
Mernbers.
65.2 The Company may capitalise any sum standing to the credit of a reserve
accounts or otherwise available for distribution by applying such sum in
paying up in full partly paid shares of those Members who would have been
entitled to such sums if they were distributed by way of dividend or
distribution.
ACCOUNTS AND FINANCIAL STATEMENTS
66. Records of account
The Board shall cause to be kept proper accounting records in accordance
with the requirements of the Act. The records of account shall be kept at
the Registered Office or, subject to Section 83(2) of the Act, at such
other place as the Board thinks fit and shall at all times be open to
inspection by the Directors during normal business hours.
67. Financial year end
The financial year end of the Company may be determined by resolution of
the Board and failing such resolution shall be 31st December in each year.
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68. Financial statements
Subject to any rights to waive laying of accounts pursuant to Section 88 of
the Act, financial statements made out in accordance with the provisions as
required by the Act shall be laid before the Members in general meeting.
AUDIT
69. Auditors
Subject to any rights to waive an audit pursuant to Section 88 of the Act,
auditors shall be appointed by the Members or the Directors in accordance
with Section 89 of the Act and their duties shall be regulated in
accordance with the Act, any other applicable law and such requirements not
inconsistent with the Act as the Board may from time to time determine.
NOTICES
70. Notices to Members
A notice or other document (including a share certificate) may be served on
or delivered to a Member either personally or by post to that Member at his
address appearing in the Register of Members or to such other address given
for the purpose. Notice or documents to be given or delivered to joint
holders of a share shall be deemed to be properly given to all joint
holders by delivery on or to one of the joint holders. Any notice or other
document sent by post shall be deemed to have been served or delivered
seven 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.
71. Notice of general meetings
A notice of a general meeting shall be deemed to be duly given to a Member
if it is sent to him by telex, facsimile, e mail or other mode of
representing or reproducing words in a legible and non-transitory form to
his address appearing in the Register of Members or any other address given
by him to the Company for this purpose. Any such notice shall be deemed to
have been served twenty-four hours after its despatch.
WINDING UP
72. Winding-up/distribution by liquidator
If the Company is wound up, the liquidator may, with the sanction of a
Resolution of the Members and any other sanction required by the Act,
divide amongst the Members in specie or kind the whole or any part of the
assets of the Company (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 Members or different classes
of Members. 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
contributories as the liquidator, with the like sanction, shall think fit,
but so that no Member shall be compelled to accept any shares or other
assets upon which there is any liability.
INDEMNITY
73. Indemnification of Directors and Officers
Subject to the proviso below, every Director, Officer and member of a
committee appointed by the Board shall be indemnified out of the funds of
the Company against all:
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(a) civil 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 as a Director, Officer or
committee member; and
(b) liabilities incurred by him as such Director, officer or committee
member in defending any proceedings, whether civil or criminal, in which
judgment is given in his favour, or in which he is acquitted, or in
connection with any application under the Act in which relief from
liability is granted to him by the court,
and this indemnity shall extend to any person acting as a Director, Officer
or committee member in the reasonable belief that he has been so appointed
or elected notwithstanding any defect in such appointment or election
provided that this indemnity shall not extend to any matter which would
render it void pursuant to the Act. Any indemnity pursuant to these Bye-Laws
in respect of amounts paid or discharged by the person claiming the
indemnity shall take effect as an obligation of the Company to reimburse the
person making such payment or effecting such discharge.
ALTERATION OF BYE-LAWS
74. Alteration of Bye-laws
These Bye-Laws may be amended from time to time by a resolution
or vote of not less than 66.67 of issued shares entitled to vote in such
matter cast at a general meeting (provided that notice of such repeal,
alteration, amendment or revision is included in the notice of such meeting)
or by a written resolution of the Members in accordance with Bye-law 32 and
otherwise in the manner provided for the Act.
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