1
EXHIBIT 3.2
B Y E - L A W S
of
BAMBURGH LIMITED
I HEREBY CERTIFY that the within-written
Bye-Laws are a true copy of the Bye-Laws of
BAMBURGH LIMITED
as subscribed by the subscribers to the
Memorandum of Association and approved at the
Statutory Meeting of the above Company on the
2nd day of February, 1996.
/s/
--------------------
Director
[SEAL]
Prepared by
Messrs. Appleby, Spurling & Kempe
Cedar House
41 Cedar Avenue
Hamilton, Bermuda
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I N D E X
Bye-Law Subject Page
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1 Interpretation 1-3
2 Registered Office 3
3,4 Share Rights 3,4
5,6 Modification of Rights 4,5
7-9 Shares 5
10-12 Certificates 6
13-15 Lien 7,8
16-21 Calls on Shares 8-10
22-28 Forfeiture of Shares 10-12
29 Register of Shareholders 12,13
30 Register of Directors and Officers 13
31-34 Transfer of Shares 13-15
35-38 Transmission of Shares 15-17
39-41 Increase of Capital 17
42,43 Alteration of Capital 17-19
44,45 Reduction of Capital 19
46 General Meetings and Written Resolutions 20,21
47,48 Notice of General Meetings 21-23
49-55 Proceedings at General Meetings 23-25
56-67 Voting 25-29
68-73 Proxies and Corporate Representatives 29-31
74-76 Appointment and Removal of Directors 32
77 Resignation and Disqualification of
Directors 33
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78-80 Alternate Directors 33-35
81 Directors' Fees and Additional
Remuneration and Expenses 35
82 Directors' Interests 36,37
83-87 Powers and Duties of the Board 38-40
88-90 Delegation of the Board's Powers 40,41
91-99 Proceedings of the Board 41-44
100 Officers 44,45
101 Minutes 45
102,103 Secretary 45,46
104 The Seal 46
105-111 Dividends and Other Payments 47-49
112 Reserves 50
113,114 Capitalization of Profits 50,51
115 Record Dates 52
116-118 Accounting Records 52,53
119 Audit 53
120-122 Service of Notices and Other Documents 53-55
123 Winding Up 55
124-126 Indemnity 55-57
127 Alteration of Bye-Laws 57
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BYE-LAWS
of
BAMBURGH LIMITED
INTERPRETATION
1. In these Bye-Laws unless the context otherwise requires --
"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 incorporated in Bermuda under the name of
BAMBURGH LIMITED
on the 2nd day of February, 1996;
"paid up" means paid up or credited as paid up;
"Register" means the Register of Shareholders of the Company;
"Registered Office" means the registered office for the time being of
the Company;
"Resolution" means a resolution of the Shareholders or, where required,
of a separate class or separate classes of Shareholders, adopted either in
general meeting or by
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written resolution, in accordance with the provisions of these Bye-Laws;
"Seal" means the common seal of the Company and includes any duplicate
thereof;
"Secretary" includes a temporary or assistant 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;
"these Bye-Laws" means these Bye-Laws in their present form or as from
time to time amended;
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
Companies Acts is present;
words importing only the singular number include the plural number and
vice versa;
words importing only the masculine gender include the feminine and
neuter genders respectively;
word importing persons include companies or associations or bodies of
persons, whether corporate or unincorporate;
reference to writing shall include typewriting, printing, lithography,
photography and other modes of representing or reproducing words in a legible
and nontransitory form;
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any words or expressions defined in the Companies Acts in force at the date when
these Bye-Laws or any part thereof are adopted shall bear the same meaning in
these Bye-Laws or such part (as the case may be).
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. 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.
4. Subject to the Companies Acts, any preference shares may, with the sanction
of a Resolution, 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;
and/or,
(c) if authorised by the memorandum/Incorporating Act of the Company,
that they are liable to be redeemed at the option of the holder.
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The terms and manner of redemption shall be provided for by way of
amendment of these Bye-Laws.
MODIFICATION OF RIGHTS
5. 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 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 seventy
five percent of the issued shares of that class or with the sanction of a
resolution passed at a separate general meeting of the holders of such shares
voting in person or by proxy. 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 two or more
persons holding or representing by proxy any of the shares of the relevant
class, 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 and that any holder of
shares of the relevant class present in person or by proxy may demand a poll;
provided, however, that if the Company or a class of Shareholders shall have
only one Shareholder present in person or by proxy, one Shareholder shall
constitute the necessary quorum.
6. The special rights conferred upon the holders of any shares or class of
shares shall not, unless otherwise
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expressly provided in the rights attaching to or the terms of issue of such
shares, be deemed to be altered by the creation or issued of further shares
ranking pari passu therewith.
SHARES
7. 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 amy determine.
8. The Board may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by law.
9. 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.
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CERTIFICATES
10. The preparation, issue and delivery of certificates shall be governed
by the Companies Acts. 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.
11. If a share certificate is defaced, lost or destroyed it may be replaced
without fee 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.
12. 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
----
13. 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.
14. 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
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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.
15. 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.
CALLS ON SHARES
---------------
16. 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
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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
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.
17. 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 authorizing the call was
passed.
18. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
19. If a sum called in respect of the shares 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.
20. 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
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of non-payment, all the relevant provisions of these Bye-Laws as to payment of
interest, forfeiture or otherwise shall apply as if such sum had become payable
by virtue of a call duly made and notified.
21. 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
22. 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.
23. 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
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.
24. If the requirements of any such notice as aforesaid are not complied with,
any share in respect of which such notice
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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.
25. 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.
26. 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.
27. 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
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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.
28. An affidavit in writing that the deponent is a Director 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
29. The Secretary shall establish and maintain the Register of Shareholders at
the Registered Office in the manner prescribed by the Companies Acts. Unless
the Board otherwise determines, the Register of Shareholders 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
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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 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 9.
REGISTER OF DIRECTORS AND OFFICERS
30. 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
31. 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.
32. 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
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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:
(a) 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,
(b) the instrument of transfer is in respect of only one class of
share,
(c) where applicable, the permission of the Bermuda Monetary Authority
with respect thereto has been obtained.
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 this
Bye-Law and Bye-Laws 31 and 33.
33. 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.
34. 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
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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
----------------------
35. 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 in Bermuda 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.
36. 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
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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 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.
37. 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 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
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himself or to transfer the share and if the notice is not complied with within
sixty 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.
38. 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-Laws
35, 36 and 37.
INCREASE OF CAPITAL
39. 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.
40. 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 Act) at a
discount to all the holders for the 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.
41. 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
42. The Company may from time to time by Resolution:--
(a) divide its shares into several classes and attach
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thereto respectively any preferential, deferred, qualified or
special rights, privileges or conditions;
(b) consolidate and divide all or any of its share capital into
shares of larger par value than its existing shares;
(c) 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;
(d) make provision for the issue and allotment of shares which do
not carry any voting rights;
(e) 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
(f) change the currency denomination of its share capital.
Where any difficulty arises in regard to any 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
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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
the shares be affected by any irregularity or invalidity in the proceedings
relating to the sale.
43. 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 any preference shares into redeemable preference shares.
REDUCTION OF CAPITAL
--------------------
44. 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 any capital
redemption reserve fund or any share premium or contributed surplus account in
any manner.
45. In relation to any such reduction, the Company may by Resolution 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.
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GENERAL MEETINGS AND WRITTEN RESOLUTIONS
----------------------------------------
46. (a) 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 may, whenever it 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.
(b) Except in the case of the removal of auditors and Directors,
anything which may be done by resolution of the Company in general
meeting or by resolution of a meeting of any class of the
Shareholders 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 Shareholders or their proxies, or in the case
of a Shareholder that is a corporation (whether or not a company
within the meaning of the Companies Acts) on behalf of such
Shareholder, being all of the Shareholders of the Company who at
the date of the resolution in writing would be entitled to attend a
meeting and vote on the resolution. Such resolution in writing may
be signed by, or in the case of a Shareholder that is a corporation
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(whether or not a company within the meaning of the Companies
Acts), on behalf of, all the Shareholders of the Company, or any
class thereof, in as many counterparts as may be necessary.
(c) For the purposes of this Bye-Law, the date of the resolution in
writing is the date when the resolution is signed by, or in the
case of a Shareholder that is a corporation (whether or not a
company within the meaning of the Companies Acts), on behalf of,
the last Shareholder to sign and any reference in any enactment to
the date of passing of a resolution is, in relation to a resolution
in writing made in accordance with this section, a reference to
such date.
(d) A resolution in writing made in accordance with this Bye-Law is as
valid as if it had been passed by the Company in general meeting
or, if applicable, by a meeting of the relevant class of
Shareholders of the Company, as the case may be. A resolution in
writing made in accordance with this section shall constitute
minutes for the purposes of the Companies Acts and these Bye-Laws.
NOTICE OF GENERAL MEETINGS
--------------------------
47. An Annual General Meeting shall be called by not less than five days
notice in writing and a Special General Meeting shall be called by not less
than five days notice
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in writing. 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, in the case of a Special General
Meeting, the general nature of the business to be considered. Notice of every
general meeting shall be given in any manner permitted by Bye-Laws 120 and 121
to all Shareholders other than such as, 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.
Notwithstanding that a meeting of the Company is called by shorter notice than
that specified in this Bye-Law, 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 Shareholders entitled to attend and vote thereat;
(b) in the case of any other meeting, by a majority in number of the
Shareholders 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.
48. 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
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instrument of proxy by, any person entitled to receive such notice shall not
invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
-------------------------------
49. 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
provided by these Bye-Laws, at least two Shareholders present in person or by
proxy and entitled to vote shall be a quorum for all purposes; provided,
however, that if the Company shall have only one Shareholder, one Shareholder
present in person or by proxy shall constitute the necessary quorum.
50. 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 and at such adjourned meeting two Shareholders present in person
or by proxy (whatever the number of shares held by them) shall be a quorum
provided that if the Company shall have only one Shareholder, one Shareholder
present in person or by proxy shall constitute the necessary quorum. The
Company shall
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give not less than five days notice of any meeting adjourned through want of a
quorum and such notice shall state that the sole Shareholder or, if more than
one, two Shareholders present in person or by proxy (whatever the number of
shares held by them) shall be a quorum.
51. 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.
52. Each Director shall be entitled to attend and speak at any general
meeting of the Company.
53. 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.
28
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54. 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. When a
meeting is adjourned for three months or more, notice of the adjourned meeting
shall be given as in the case of an original meeting.
55. 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.
VOTING
------
56. Save where a greater majority is required by the Companies Acts or
these Bye-Laws, any question proposed for consideration at any general meeting
shall be decided on by a simple majority of votes cast.
57. At any general meeting, a resolution put to the vote of the meeting
shall be decided on a show of hands unless (before or on the declaration of the
result of the show of hands or on the withdrawal of any other demand for a poll)
a poll is demanded by:-
(a) the chairman of the meeting; or
(b) at least three Shareholders present in person or represented by
proxy; or
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(c) any Shareholder or Shareholders present in person or represented
by proxy and holding between them not less than one tenth of the
total voting rights of all the Shareholders having the right to
vote at such meeting; or
(d) a Shareholder or Shareholders present in person or represented
by proxy holding shares conferring the right to vote at such
meeting, being shares on which an aggregate sum has been paid up
equal to not less than one tenth of the total sum paid up on all
such shares conferring such right.
Unless a poll is so demanded and the demand is not withdrawn, a declaration by
the chairman that a resolution has, on a show of hands, been carried or carried
unanimously or by a particular majority or not carried by a particular majority
or lost shall be final and conclusive, and an entry to that effect in the
minute book of the Company shall be conclusive evidence of the fact without
proof of the number of votes recorded for or against such resolution.
58. If a poll is duly demanded, the result of the poll shall be deemed to
be the resolution of the meeting at which the poll is demanded.
59. A poll demanded on the election of a chairman, or on question of
adjournment, shall be taken forthwith. A poll demanded on any other question
shall be taken in such manner and either forthwith or at such time (being not
later than
30
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three months after the date of the demand) and place as the chairman shall
direct. It shall not be necessary (unless the chairman otherwise directs) for
notice to be given of a poll.
60. The demand for a poll shall not prevent the continuance of a meeting
for the transaction of any business other than the question on which the poll
has been demanded and it may be withdrawn at any time before the close of the
meeting or the taking of the poll, whichever is the earlier.
61. On a poll, votes may be case either personally or by proxy.
62. A person entitled to more than one vote on a poll need not use all his
votes or cast all the votes he uses in the same way.
63. In the case of an equality of votes at a general meeting, whether on a
show of hands or on a poll, the chairman of such meeting shall not be entitled
to a second or casting vote.
64. In the case of joint holders of a share, 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 in respect of the joint holding.
65. A Shareholder who is a patient for any purpose of any statute or
applicable law relating to mental health or in
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respect of whom an order has been made by any Court having jurisdiction for the
protection or management of the affairs of persons incapable of managing their
own affairs may vote, whether on a show of hands or on a poll, by his receiver,
committee, curator bonis or other person in the nature of a receiver, committee
or curator bonis appointed by such Court and such receiver, committee, curator
bonis or other person may vote on a poll by proxy, and may otherwise act and be
treated as such Shareholder for the purpose of general meetings.
66. 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.
67. If (i) any objection shall be raised to the qualification of any voter
or (ii) any votes have been counted which ought not have been counted or which
might have been rejected or (iii) 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
32
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decides that the same may have affected the decision of the meeting. The
decision of the chairman on such matters shall be final and conclusive.
PROXIES AND CORPORATE REPRESENTATIVES
-------------------------------------
68. 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
appointor is a corporation, either under its seal or under the hand of an
officer, attorney or other person authorised to sign the same.
69. Any Shareholder may appoint a standing proxy or (if a corporation)
representative by depositing at the Registered Office a proxy or (if a
corporation) an authorisation and such proxy or authorisation shall be valid
for all general meetings and adjournments thereof or, resolutions in writing,
as the case may be, until notice of revocation is received at the Registered
Office. 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 representative. The Board may from time to time
require such evidence as it shall deem necessary as to the due execution and
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
33
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time as the Board determines that it has received the requested evidence or
other evidence satisfactory to it.
70. Subject to Bye-Law 69, the instrument appointing a proxy together with
such other evidence as to its due execution 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 or the case of a written resolution, in any
document sent therewith) prior to the holding of the relevant meeting or
adjourned meeting at which the person named in the instrument proposes to vote
or, in the case of a poll taken subsequently to the date of a meeting or
adjourned meeting, before the time appointed for the taking of the poll, or, in
the case of a written resolution, prior to the effective date of the written
resolution and in default the instrument of proxy shall not be treated as valid.
71. 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 or any written resolution forms of instruments of proxy
for use at that meeting or in connection with that written resolution. The
instrument of proxy shall be deemed to confer authority to demand or join in
demanding a poll and to vote on any amendment of a written resolution or
amendment of a resolution put to the meeting for which it is
34
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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.
72. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal,
or revocation of the instrument of proxy or of the authority under which it was
executed, provided that no intimation in writing of such death, insanity or
revocation shall have been received by the Company at the 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, or the
taking of the poll, or the day before the effective date of any written
resolution at which the instrument of proxy is used.
73. Subject to the Companies Acts, the Board may at its discretion waive
any of the provisions of these Bye-Laws related to proxies or authorizations
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 or to sign written resolutions.
35
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APPOINTMENT AND REMOVAL OF DIRECTORS
------------------------------------
74. The number of Directors shall be such number not less than two as the
Company by Resolution may from time to time determine and, subject to the
Companies Acts and these Bye-Laws, shall serve until re-elected or their
successors are appointed at the next Annual General Meeting.
75. The Company shall at the Annual General Meeting and may by Resolution
determine the minimum and the maximum number of Directors and may by Resolution
determine that one or more vacancies in the Board shall be deemed casual
vacancies for the purposes of these Bye-Laws. 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 a casual vacancy.
76. The Company may in a Special General Meeting called for that purpose
remove a Director provided notice of any such meeting shall be served upon the
Director concerned not less than 14 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 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.
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RESIGNATION AND DISQUALIFICATION OF DIRECTORS
---------------------------------------------
77. The office of a Director shall be vacated upon the happening of any of
the following events:
(a) if he resigns his office by notice in writing delivered to the
Registered Office or tendered at a meeting of the Board;
(b) 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;
(c) if he becomes bankrupt or compounds with his creditors;
(d) if he is prohibited by law from being a Director;
(e) if he ceases to be a Director by virtue of the Companies Acts or is
removed from office pursuant to these Bye-Laws.
ALTERNATE DIRECTORS
-------------------
78. The Company may by Resolution elect any person or persons to act as
Directors in the alternative to any of the Directors or may authorise the Board
to appoint such Alternate Directors and a Director may appoint and remove his
own Alternate Director. Any appointment or removal of an Alternate Director by
a Director shall be effected by depositing a notice of appointment or removal
with the Secretary at the Registered Office, signed by such Director, and such
appointment or removal shall become effective on
37
- 34 -
the date of receipt by the Secretary. Any Alternate Director may be removed by
Resolution of the Company and, if appointed by the Board, may be removed by the
Board. Subject as aforesaid, 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.
79. 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.
80. 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
38
- 35 -
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.
DIRECTORS' FEES AND ADDITIONAL REMUNERATION AND EXPENSES
--------------------------------------------------------
81. The amount, if any, of Directors' fees shall from time to time be
determined by the Company by Resolution and in the absence of a determination
to the contrary in general meeting, such fees shall be deemed to accrue from
day to day. Each Director may be paid his reasonable travelling, 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.
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-36-
DIRECTORS' INTERESTS
--------------------
82. (a) A Director may hold any other office or place of profit with the
Company (except that of auditor) in conjunction with his office of Director for
such period and 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.
(b) A Director 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.
(c) Subject to the provisions of the Companies Acts, a Director 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 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 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
40
-37-
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.
(d) 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 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.
(e) Subject to the Companies Acts and any further disclosure required
thereby, a general notice to the Directors by a Director or 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.
41
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POWERS AND DUTIES OF THE BOARD
------------------------------
83. Subject to the provisions of the Companies Acts and these Bye-Laws and
to any directions given by the Company by Resolution, 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 and no such direction shall invalidate any prior
act of the Board which would have been valid if that alteration had not been
made or that direction had not been given. 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.
84. 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.
85. 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
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- 39 -
otherwise executed, as the case may be, in such manner as the Board shall from
time to time by resolution determine.
86. 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.
87. The Board may from time to time appoint one or more of its body to be a
managing director, joint managing director or an assistant managing director or
to hold any other 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
43
- 40 -
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.
DELEGATION OF THE BOARD'S POWERS
--------------------------------
88. 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.
89. 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.
44
-41-
90. 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, conform
to any regulations which may be imposed upon it by the Board.
PROCEEDINGS OF THE BOARD
------------------------
91. 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 been lost. A Director may, and the Secretary on
the requisition of a Director shall, at any time summon a meeting of the Board.
92. 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 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
waive notice of any meeting either prospectively or retrospectively.
93. (a) 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
45
- 42 -
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.
(b) 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.
94. So long as a quorum of Directors remains in office, the continuing
Directors may act notwithstanding any vacancy in the Board but, if no such
quorum remains, the continuing Directors or a sole continuing Director may act
only for the purpose of calling a general meeting.
95. The Chairman (if any) of the Board or, in his absence, the President
shall preside as chairman at every meeting of the Board. If there is no such
Chairman or President, or if at any meeting the Chairman 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
46
- 43 -
present may choose one of their number to be chairman of the meeting.
96. 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.
97. 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.
98. 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.
99. All acts done by the Board or by any committee or by any person acting
as a Director or member of a committee or
47
-44-
any person duly authorized 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 authorized.
OFFICERS
--------
100. The officers of the Company shall include a President and a
Vice-President or a Chairman and a Deputy Chairman who shall be Directors and
shall be elected by the Board as soon as possible after the statutory meeting
and each Annual General Meeting. In addition, the Board may appoint any person
whether or not he is a Director to hold such office as the Board may from time
to time determine. 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
48
-45-
the officers of the Company shall be such (if any) as are determined from time
to time by the Board.
MINUTES
-------
101. 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).
SECRETARY
---------
102. The Secretary shall be appointed by the Board at such remuneration (if
any) and upon such terms as it may think fit and any Secretary so appointed may
be removed by the Board.
The duties of the Secretary shall be those prescribed by the Companies Acts
together with such other duties as shall from time to time be prescribed by the
Board.
103. 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
49
-46-
and as, or in the place of, the Secretary.
THE SEAL
--------
104. (a) The Seal shall consist of a circular metal device with the name of
the Company around the outer margin thereof and the country and year of
incorporation across the centre thereof. Should the Seal not have been received
at the Registered Office in such form at the date of adoption of this Bye-Law
then, pending such receipt, any document requiring to be sealed with the Seal
shall be sealed by affixing a red wafer seal to the document with the name of
the Company, and the country and year of incorporation type written across the
centre thereof.
(b) 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 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 authorised
either generally or specifically to attest to the use of a Seal; provided that
the Secretary or a Director 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.
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DIVIDENDS AND OTHER PAYMENTS
----------------------------
105. The Board may from time to time declare cash dividends or distributions
out of contributed surplus 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 Company. The Board may also pay any fixed
cash dividend which is payable on any shares of the Company half yearly or on
such other dates, whenever the position of the Company, in the opinion of the
Board, justifies such payment.
106. Except insofar as the rights attaching to, or the terms of issue of,
any share otherwise provide:-
(a) all dividends or distributions out of contributed surplus 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;
(b) dividends or distributions out of contributed surplus 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.
51
- 48 -
107. 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.
108. No dividend, distribution or other moneys payable by the Company on or
in respect of any share shall bear interest against the Company.
109. Any dividend, distribution, 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 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
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distributable in respect of the shares held by such joint holders.
110. Any dividend or distribution out of contributed surplus 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.
111. With the sanction of a Resolution the Board may direct payment or
satisfaction of any dividend or distribution out of contributed surplus wholly
or in part by the distribution of specific assets, and in particular of paid-up
shares or debentures of any other company, and 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.
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RESERVES
--------
112. The Board may, before recommending or declaring any dividend or
distribution out of contributed surplus, 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.
CAPITALIZATION OF PROFITS
-------------------------
113. The Company may, upon the recommendation of the Board, at any time and
from time to time pass a Resolution to the effect that it is desirable to
capitalize 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 to the
credit of any share premium account or any capital redemption reserve fund 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
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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, and the Board shall give effect to such
Resolution, provided that for the purpose of this Bye-Law, a share premium
account and a capital redemption reserve fund 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.
114. 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.
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RECORD DATES
------------
115. Notwithstanding any other provisions of these Bye-Laws, the Company may
by Resolution or 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 general meetings. Any 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
------------------
116. 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.
117. 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
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conferred by law or authorised by the Board or by Resolution.
118. 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
auditors' report, shall be sent to each person entitled thereto in accordance
with the requirements of the Companies Acts.
AUDIT
-----
119. Save and to the extent that an audit is waived in the manner permitted
by the Companies Acts, auditors shall be appointed and their 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.
SERVICE OF NOTICES AND OTHER DOCUMENTS
--------------------------------------
120. Any notice or other document (including a share certificate) may be
served on or delivered to any Shareholder by the Company either personally or
by sending it through the post (by airmail where applicable) in a prepaid
letter addressed to such Shareholder at his address as appearing in the
Register or by delivering it to or leaving it at such registered address. 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
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all the joint holders. Any notice or other document if 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.
121. Any notice of a general meeting of the Company shall be deemed to be
duly given to a Shareholder if it is sent to him by cable, telex, telecopier or
other mode of representing or reproducing words in a legible and non-transitory
form at his address as appearing in the Register 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.
122. 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
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notice or document on all persons interested (whether jointly with or as
claiming through or under him) in the share.
WINDING UP
----------
123. 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 (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
contributories 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
---------
124. Subject to the proviso below, every Director, officer of the Company
and member of a committee constituted under Bye-Law 90 shall be indemnified
out of the funds of the Company against all civil liabilities, loss, damage or
expense (including but not limited to liabilities under
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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 or committee member and the indemnity
contained in this Bye-Law 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 ALWAYS that the indemnity contained in this Bye-Law shall not extend
to any matter which would render it void pursuant to the Companies Acts.
125. Every Director, officer and member of a committee duly constituted
under Bye-Law 90 of the Company shall be indemnified out of the funds of the
Company against all 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 Companies Acts in which relief from
liability is granted to him by the court.
126. To the extent that any Director, officer or member of a committee duly
constituted under Bye-Law 90 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
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discharge.
ALTERATION OF BYE-LAWS
----------------------
127. These Bye-Laws may be amended from time to time in the manner provided
for in the Companies Acts.
61
B Y E - L A W S
OF
BAMBURGH LIMITED
We, being the subscribers to the Memorandum of Association of the above company
hereby subscribe to the above written Bye-Laws pursuant to section 13(4) of the
Companies Act 1981.
NAME SIGNATURE
- ---- ---------
Judith Collis /s/ JUDITH COLLIS
- ---------------------------- ----------------------------
Ruby L. Rawlins /s/ RUBY L. RAWLINS
- ---------------------------- ----------------------------
Marcia De Couto /s/ MARCIA DE COUTO
- ---------------------------- ----------------------------
Stacy L. Robinson /s/ STACY L. ROBINSON
- ---------------------------- ----------------------------
Dated this 2nd day of February, 1996