Exhibit 4.2
AMENDED AND RESTATED
BYE-LAWS
OF
NABORS INDUSTRIES LTD.
(the "Company")
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INTERPRETATION
1. (1) In these Bye-laws, unless the context otherwise requires:
"APPLICABLE LAW" means all applicable laws, regulations or rules
of any statutory or non-statutory body, whether foreign or domestic,
governing the Company, the securities of the Company or the issue
of, or the trading therein, including the Companies Acts;
"BERMUDA" means the Islands of Bermuda;
"BOARD" means the board of directors of the Company;
"BYE-LAWS" means these Bye-laws in their present form or as from
time to time amended;
"CLEAR DAYS" means, in relation to the period of a notice, that
period excluding the day on which the notice is given or served, or
deemed to be given or served, and the day for which it is given or
on which it is to take effect;
"COMPANIES ACTS" means every Bermuda statute, regulation and order
from time to time in force concerning companies insofar as the same
apply to the Company;
"COMPANY" means Nabors Industries Ltd., an exempted company
incorporated in Bermuda with registration number 31431;
"DIRECTOR" means a director for the time being of the Company;
"OFFICER" means a Director, Secretary, or other officer of the
Company appointed pursuant to these Bye-laws, but does not include
any person holding the office of auditor in relation to the Company;
"PAID UP" means paid up or credited as paid up;
"PERSON ENTITLED BY TRANSMISSION" means a person whose entitlement
to a Share in consequence of the death or bankruptcy of a
Shareholder or of any other event giving rise to its transmission by
operation of law has been noted in the Register pursuant to
Bye-law 68.1;
"REGISTER" means the register of Shareholders of the Company and
includes any branch register;
"REGISTERED OFFICE" means the registered office for the time being
of the Company;
"RESIDENT REPRESENTATIVE" means the person or, if permitted by the
Companies Acts, the company appointed to perform the duties of
resident representative of the Company as set out in the Companies
Acts (and includes any assistant or deputy resident representative
appointed by the Board);
"RESOLUTION" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of Shareholders,
adopted in general meeting or passed in accordance with the
provisions of these Bye-laws;
"SEAL" means the common seal of the Company and includes any
duplicate seal;
"SECRETARY" means the Secretary of the Company or, if there are
joint Secretaries, any of the joint Secretaries and includes a
deputy or assistant Secretary and any person appointed by the Board
to perform any of the duties of the Secretary;
"SHAREHOLDER" means a holder of a Share (of any class);
"SHARE" means any share in the capital of the Company;
"SUBSIDIARY" and "HOLDING COMPANY" have the same meanings as in
section 86 of the Companies Act 1981, except that references in that
section to a company shall include any body corporate or other legal
entity, whether incorporated or established in Bermuda or elsewhere;
and
"US DOLLARS" or "US$" means United States dollars.
2. For the purposes of these Bye-laws, unless the context otherwise requires:
(1) a company shall be deemed to be present in person at a meeting if
its representative, duly authorised pursuant to these Bye-laws, is
present;
(2) words importing only the singular number include the plural number
and vice versa;
(3) words importing only one gender include the other gender;
(4) references to a company include any body corporate or other legal
entity, whether incorporated or established in Bermuda or elsewhere;
(5) references to a person include any company, partnership or other
body of persons, whether corporate or not, any trust and any
government, governmental body or agency or public authority, whether
of Bermuda or elsewhere;
(6) references to writing include typewriting, printing, lithography,
photography, electronic mail and other modes of representing or
reproducing words in a legible and non-transitory form;
(7) references to anything being done by electronic means includes its
being done by means of any electronic or other communications
equipment or facilities and references to any communication being
delivered or received, or being delivered or received at a
particular place, include the transmission of an electronic or
similar communication, to a recipient identified in such manner or
by such means, as the Board may from time to time approve or
prescribe, either generally or for a particular purpose;
(8) references to a signature or to anything being signed or executed
include such forms of electronic signature or other means of
verifying the authenticity of an electronic or similar communication
as the Board may from time to time approve or prescribe, either
generally or for a particular purpose;
(9) references to a dividend include a distribution paid in respect of
Shares to Shareholders out of contributed surplus or any other
distributable reserve;
(10) any words or expressions defined in the Companies Acts, if not
otherwise defined in or given a particular meaning by these
Bye-laws, have the same meaning in these Bye-laws, except that the
definition of "attorney" shall not apply;
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(11) (a) powers of delegation shall not be restrictively construed but
the widest interpretation shall be given thereto; (b) the word
"Board" in the context of the exercise of any power contained in
these Bye-laws includes any committee consisting of one or more
Directors and any local or divisional Board, manager or agent of the
Company to which or, as the case may be, to whom the power in
question has been delegated; (c) no power of delegation shall be
limited by the existence or, except where expressly provided by the
terms of delegation, the exercise of any other power of delegation;
and (d) except where expressly provided by the terms of delegation,
the delegation of a power shall not exclude the concurrent exercise
of that power by any other body or person who is for the time being
authorised to exercise it under these Bye-laws or under another
delegation of the powers;
(12) references to any statute or statutory provision (whether of Bermuda
or elsewhere) includes a reference to any modification or
re-enactment of it for the time being in force and to every rule,
regulation or order made under it (or under any such modification or
re-enactment) and for the time being in force and any reference to
any rule, regulation or order made under any such statute or
statutory provision includes a reference to any modification or
replacement of such rule, regulation or order for the time being in
force;
(13) references to Shares with the general right to vote at general
meetings of the Company are to those Shares (of any class or series)
with the right to vote, other than Shares which entitle the holders
to vote only in limited circumstances or upon the occurrence of a
specified event or condition (whether or not those circumstances
have arisen or that event or condition has occurred); and
(14) reference to "days" in these Bye-laws when in relation to notice or
limitation periods, deemed delivery, adjournments or Record Dates
shall mean "Clear Days".
REGISTERED OFFICE
3. The Registered Office. The Registered Office of the Company shall be at
such place within Bermuda as the Board may from time to time determine,
but as at the date of adoption of these Bye-laws and until a change is
effected, such Registered Office shall be at Cedar House, 41 Cedar Avenue,
Hamilton, Bermuda HM 12. The Company may establish such other principal
places of business as the Board may determine from time to time.
SHARE CAPITAL, SHARE RIGHTS
4. Authorised Share Capital. Subject to any special rights conferred on the
holders of any Share or class of Shares, any in the Company may be issued
with or have attached thereto such , deferred, qualified or other special
rights or such , whether in regard to dividend, voting, return of capital
or , as the Shareholders may by Resolution determine or, if there not
been any such determination or so far as the same shall not make
provision, as the Board may determine. As at the date of adoption these
Bye-laws, the authorised share capital of the Company is $425,000 divided
into 400,000,000 Common Shares par value US$0.001 per (the "Common
Shares") and 25,000,000 Preferred Shares par value $0.001 per Share (the
"Preferred Shares").
4.1 Subject to these Bye-laws, holders of the Common Shares shall:
(a) be entitled to one vote for each Common Share held by such holder on
the relevant record date on all matters submitted to a vote of the
Shareholders;
(b) be entitled to such dividends and other distributions in cash,
Shares or property of the Company out of assets or funds of the
Company legally available therefor, as the Board may from time to
time declare; and
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(c) generally be entitled to enjoy all of the rights attaching to Shares
under the Companies Acts.
4.2 For the purposes of these Bye-laws, the rights attaching to any of the
Common Shares shall be deemed not to be altered by the allotment or issue
by the Company of other Shares ranking in priority for payment of
dividends or with respect to capital, or which confer on the holders
voting rights more favourable than those conferred on the Common Shares,
and shall not otherwise be deemed to be altered by the creation or issue
of further Shares ranking pari passu with such Shares, or by the purchase
or redemption by the Company of any of its own Shares.
4.3 The Board is hereby expressly authorised to provide for the issuance of
all or any of the Preferred Shares in one or more classes or series, and
to fix, for each such class or series, the number of Shares which shall
constitute such class or series, full, limited or no voting power,
designations, preferences, special rights, qualifications, limitations and
restrictions thereof, as shall be stated and expressed in the resolution
or resolutions adopted by the Board (a copy of which shall be attached as
an appendix to, but shall not form a part of, these Bye-laws) providing
for the issuance of such class or series, including, without limitation,
the authority to provide that any such class or series may be: (a) subject
to redemption at the option of the Company or the holders, or both, at
such time or times and at such price or prices; (b) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on
such conditions, and at such times, and payable in preference to, or in
such relation to, the dividends payable on any other class or classes or
any other series; (c) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Company; or (d) convertible
into, or exchangeable for, any other class or classes of Shares, or of any
other series of the same or any other class or classes of Shares, of the
Company at such price or prices or at such rates of exchange and with such
adjustments; all as may be stated in such resolution or resolutions.
MODIFICATION OF RIGHTS
5. Share Rights May Be Altered. Subject to the Companies Acts, all or any of
the special rights for the time being to any class of Shares issued may,
unless otherwise expressly in the rights attaching to or by the terms of
issue of the Shares that class, from time to time (whether or not the
Company is being wound up) be altered or abrogated by a Resolution passed
at a separate meeting of the holders of Shares of that class, voting in
person or by proxy and representing at least a majority of the issued
Shares of that class entitled to vote. To any such separate general
meeting, all the provisions of these Bye-laws as to general meetings of
the Company shall apply, except that every holder of Shares of the
relevant class shall be entitled on a poll to one vote for every such
Share held by such holder and any holder of Shares of the relevant class
present in person or by proxy may demand a poll.
5.1 For the purposes of this Bye-law, unless otherwise expressly provided by
the rights attached to any class of Shares, the rights attaching to any
class of Shares shall be deemed not to be altered by the allotment or
issue by the Company of other Shares ranking in priority of payment of
dividends or with respect to capital, or which confer on the holders
voting rights more favourable than those conferred on such class, and
shall not otherwise be deemed to be altered by the creation or issue of
further Shares ranking pari passu with such class, or by the purchase or
redemption by the Company of any of its own Shares.
SHARES
6. Shares at the Disposal of the Board. Subject to the other provisions of
these Bye-laws, the unissued Shares of the Company (whether forming part
of the original Share capital or any increased capital) shall be at the
disposal of the Board, which may offer, allot, grant options, warrants or
other rights over or otherwise deal with or dispose of them to such
persons, at such times and for such consideration and generally on such
terms and conditions as the Board may
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from time to time determine. Shares may be issued in fractional
denominations and in such event the Company shall deal with such fractions
to the same extent as its whole Shares, so that a Share in a fractional
denomination shall have, in proportion to the fraction of a whole Share
that it represents, all the rights of a whole Share, including (but
without limiting the generality of the foregoing) the right to vote, to
receive dividends and distributions and to participate in a winding up.
7. Board May Pay Commissions. The Board may, in connection with the issue of
any Shares, exercise all powers of paying commissions and brokerages
conferred or permitted by Applicable Law.
8. Board May Repurchase Shares. Subject to the Companies Acts, the Company
may purchase its own Shares and the Board may (without the sanction of a
Resolution) authorise any exercise of the Company's power to purchase its
own Shares, whether in the market, by tender or by private agreement, at
such prices (whether at par or above or below par) and otherwise on such
terms and conditions as the Board may from time to time determine. The
whole or any part of the amount payable on any such purchase may be paid
or satisfied otherwise than in cash, to the extent permitted by the
Companies Acts.
INCREASE OF CAPITAL
9. Shareholder Approval to Increase of Capital. The Shareholders may from
time to time increase the Company's capital by such sum to be divided into
Shares of such par value as the Shareholders by Resolution shall
prescribe.
10. No Pre-emptive Rights. No holder of Shares of any class or other
securities of the Company shall as such holder have any pre-emptive right
to purchase Shares of any class or other securities of the Company or
Shares or other securities convertible into or exchangeable for or
carrying rights or options to purchase Shares of any class of the Company,
whether such Shares or other securities are now or hereafter authorised,
which at any time may be proposed to be issued by the Company or subjected
to rights or options to purchase granted by the Company.
11. Shares Subject to Bye-laws. All existing Shares and any new Shares shall
be subject to all the provisions of these Bye-laws.
ALTERATION OF CAPITAL
12. Shareholder Approval to Alteration of Capital. The Shareholders may
(subject to Bye-law 12.1) from time to time by Resolution:
(1) divide the Company's Shares into several classes and attach to them
respectively any preferential, deferred, qualified or special
rights, privileges or conditions;
(2) consolidate and divide all or any of the Company's share capital
into Shares of larger par value than any of its existing Shares;
(3) sub-divide the Company's Shares or any of them into Shares of
smaller par value than is fixed by its memorandum, provided,
however, that in the sub-division the proportion between the amount
paid and the amount, if any, unpaid on each reduced Share shall be
the same as it was in the case of the Share from which the reduced
Share is derived;
(4) make provision for the issue and allotment of Shares which do not
carry any voting rights;
(5) cancel Shares which, at the date of the passing of the relevant
Resolution, have not been taken or agreed to be taken by any person,
and diminish the amount of the Company's authorised share capital by
the amount of the Shares so cancelled; and
(6) change the currency denomination of the Company's share capital.
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12.1 Where any disagreement arises in regard to any division, consolidation or
sub-division under this Bye-law 12, the Board may settle the same as it
thinks expedient and, in particular, may arrange for the sale of the
Shares representing fractions, and the distribution of the net proceeds of
sale in due proportion among the Shareholders who would have been entitled
to the fractions, except that any proceeds in respect of any holding which
are less than a sum fixed by the Board may be retained for the benefit of
the Company. For the purpose of any such sale, the Board may authorise
some person to transfer the Shares representing fractions to the
purchaser, who shall not be bound to see to the application of the
purchase money, nor shall such purchaser's title to the Shares be affected
by any irregularity or invalidity in the proceedings relating to the sale.
13. Conversion of Preferred Shares. Subject to the Companies Acts and to any
confirmation or consent required by Applicable Law or these Bye-laws, the
Shareholders may from time to time by Resolution convert any Preferred
Shares in the Company (unless otherwise expressly provided by the rights
attaching to or by the terms of issue of the Preferred Shares in question)
into redeemable Preferred Shares.
REDUCTION OF CAPITAL
14. Shareholder Approval to Reduction of Capital. Subject to the Companies
Acts and to any confirmation or consent required by Applicable Law or
these Bye-laws, the Shareholders may from time to time by Resolution
authorise the reduction in any manner of the Company's issued share
capital (but not to a sum less than the minimum share capital prescribed
by its memorandum) or any share premium account.
14.1 In relation to any such reduction, the Shareholders may by Resolution
determine the terms upon which the 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.
MEETINGS OF SHAREHOLDERS
15. Annual General Meeting. The Annual General Meeting of Shareholders shall
be held in each calendar year on such date and at such time as shall be
designated from time to time by the Board and stated in the notice of the
meeting, at which meeting the Shareholders shall elect directors, appoint
auditors and transact such other business as may properly be brought
before the meeting. All other general meetings of the Shareholders called
pursuant to the requirements of the Companies Act or these Bye-laws shall
be referred to as Special General Meetings.
16. Special General Meetings. Special General Meetings of the Shareholders,
may be called at any time for any purpose or purposes by the Board or as
otherwise provided for by Applicable Law, and shall be held at such place,
and at such hour as may be designated by the Board in the notice of the
meeting; provided, however, that the time so fixed shall permit the giving
of notice as provided in Bye-law 17, unless such notice is waived as
provided by Applicable Law or by these Bye-laws. Special General Meetings
shall also be called and held in such cases and in such manner as may be
specifically required by the Companies Acts.
17. Notice of Meetings. Written notice of each meeting of the Shareholders,
which shall state the place, date and hour of the meeting and, in the case
of a Special General Meeting or where otherwise required by Applicable
Law, the purpose or purposes for which it is called, shall be given,
unless a different period is required by Applicable Law, not less than ten
(10) nor more than sixty (60) days before the date of such meeting, by or
at the direction of the person calling the meeting, to each Shareholder
entitled to vote at such meeting by mail or by e-mail or any other
electronic means at the Shareholder's address as it appears on the
Register of Shareholders or at any other address given in writing by such
Shareholder to the Company for such purpose. Notice of each Annual or
Special General Meeting shall also be given in the same manner as
described above to any Director or Resident Representative of the Company
who has delivered a written
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notice to the Company's registered office requiring that such notice be
sent to such person. Any notice given in the manner set forth in this
Bye-law 17 shall be deemed duly given and shall be deemed to have been
served five days after dispatch if sent by post or twenty-four (24) hours
after its dispatch by any other means. Except as otherwise provided by
these Bye-laws and the Companies Acts, no business other than that stated
in the notice shall be transacted at any meeting without the unanimous
consent of all the Shareholders entitled to vote thereat. When a meeting
is adjourned to another time or place, notice need not be given if the
time and place thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than thirty (30) days
after the date of the original meeting, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Shareholder of record entitled to vote at
the 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.
18. Nature of Business at Meetings of Shareholders. Subject to the terms of
these Bye-laws and the Companies Acts, no business may be transacted at an
Annual General Meeting of the Shareholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board (or any duly authorised
committee thereof), (b) otherwise properly brought before the Annual
General Meeting by or at the direction of the Board (or any duly
authorised committee thereof) or (c) otherwise properly brought before the
Annual General Meeting by any Shareholder of the Company (i) who is a
Shareholder of record on the date of the giving of the notice provided for
in this Bye-law 18 and on the record date for the determination of
Shareholders entitled to vote at such Annual General Meeting and (ii) who
complies with the notice procedures set forth in this Bye-law 18. 18.1 In
addition to any other applicable requirements, for business to be properly
brought before an Annual General Meeting by a Shareholder, such
Shareholder must have given timely notice thereof in proper written form
to the Secretary of the Company as provided below.
18.2 With regard to an Annual General Meeting, to be timely, a Shareholder's
notice to the Secretary must be delivered to or mailed and received at the
Registered Office and the principal executive offices of the Company as
set forth in the Company's filings with the Securities and Exchange
Commission not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding Annual General
Meeting of Shareholders; provided, however, that in the event that the
Annual General Meeting is called for a date that is not within thirty (30)
days before or after such anniversary date, notice by the Shareholder in
order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of
the date of the Annual General Meeting was mailed or such public
disclosure of the date of the Annual General Meeting was made, whichever
first occurs.
18.3 To be in proper written form, a Shareholder's notice to the Secretary must
set forth as to each matter such Shareholder proposes to bring before the
Annual General Meeting (i) a brief description of the business desired to
be brought before the Annual General Meeting and the reasons for
conducting such business at the Annual General Meeting, (ii) the name and
record address of such Shareholder, (iii) the class or series and number
of Shares of the Company which are owned beneficially or of record by such
Shareholder, (iv) a description of all arrangements or understandings
between such Shareholder and any other person or persons (including their
names) in connection with the proposal of such business by such
Shareholder and any material interest of such Shareholder in such business
and (v) a representation that such Shareholder intends to appear in person
or by proxy at the Annual General Meeting to bring such business before
the meeting.
18.4 No business shall be conducted at the Annual General Meeting of
Shareholders except business brought before the Annual General Meeting in
accordance with the procedures set forth in this Bye-law; provided,
however, that, once business has been properly brought before the Annual
General Meeting in accordance with such procedures, nothing in this
Bye-law shall be deemed to
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preclude discussion by any Shareholder of any such business. If the
Chairman of an Annual General Meeting determines that business was not
properly brought before the Annual General Meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
19. Quorum. Except as otherwise required by Applicable Law, or these Bye-laws,
at all meetings of the Shareholders, the holders of a majority of the
Shares issued and outstanding and entitled to vote shall be present in
person or represented by proxy in order to constitute a quorum for the
transaction of any business. The Chairman or a majority vote of the Board
or the affirmative vote of the holders of a majority of the Shares present
in person or represented by proxy at the meeting and entitled to vote
thereat, whether or not a quorum shall be present, may adjourn the meeting
from time to time, to a specified date or place. At any such adjourned
meeting at which a quorum may be present, the Company may transact any
business which might have been transacted at the original meeting.
19.1 As to any matter with respect to which a separate class vote is required
by the terms of the Companies Acts, the holders of a majority of the
Shares of such class which are then outstanding and entitled to vote shall
be present in person or represented by proxy in order to constitute a
quorum for the purpose of any separate vote required by such class.
19.2 The absence from any meeting of the number of Shares required by
Applicable Law or these Bye-laws for action upon one matter shall not
prevent action at such meeting upon any other matter or matters which may
properly come before the meeting, if the number of Shares required in
respect of such other matters shall be present.
20. Organization. At each meeting of the Shareholders, the Chairman of the
Board or, in his absence or inability to act, the most
senior present Vice Chairman or, in the absence or inability to act of any
Vice Chairman, the President or, in his absence or inability to act, a
Vice President or, in his absence or inability to act, any person as may
be designated by the Board or, in the absence of such designation, a
chairman to be chosen at the meeting by the majority of those Shareholders
present in person or represented by proxy shall act as chairman of the
meeting. The Secretary or, in his absence or inability to act, an
Assistant Secretary, or in his absence or inability to act, any person as
may be designated from time to time by the Board shall act as secretary of
each meeting of Shareholders and keep the minutes thereof; if no such
person is present or has been chosen, the holders of record of a majority
of Shares present in person or represented by proxy and entitled to vote
at the meeting shall choose any person present to act as secretary of the
meeting.
21. Order of Business. The order of business at all meetings of the
Shareholders shall be as determined by the chairman of the meeting.
22. Voting and Required Vote. At each meeting of Shareholders, each
Shareholder shall be entitled to one vote for each Share held by such
Shareholder except as otherwise provided for by the rights attaching to
such Share or these Bye-laws. Except as may otherwise be provided for in
these Bye-laws, and subject to Applicable Law, at each meeting of
Shareholders if there shall be a quorum, the affirmative vote of the
holders of a majority of Shares present in person or represented by proxy
and entitled to vote thereat, shall decide all matters brought before such
meeting.
23. Proxies. Each Shareholder entitled to vote at any meeting of Shareholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy.
Any such proxy shall be delivered to the secretary of such meeting at or
prior to the time designated in the order of business for so delivering
such proxies. Each such proxy shall be in writing in any common form or in
such other form as the Board may approve and, executed by the Shareholder
or his duly authorized attorney-in-fact, but no such proxy shall be voted
after three years from its date unless such proxy provides for a longer
period. A duly
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executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in
law to support an irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is an interest
in the Share itself or an interest in the Company generally.
23.1 The appointment of a proxy in relation to a particular meeting shall,
unless the contrary is stated, be valid for any adjournment of the meeting
and the appointment of a proxy in relation to a particular meeting or
adjourned meeting shall unless the contrary is stated, be valid for any
poll demanded at the meeting or adjourned meeting.
23.2 Subject to the Companies Act, the Board may also at its discretion waive
any of the provisions of these Bye-laws relating to the execution and
deposit of an instrument or other form of communication appointing or
evidencing the appointment of a proxy or any ancillary matter (including,
without limitation, any requirement for the production or delivery of any
instrument or other communication to any particular place or by any
particular time or in any particular way) and, in any case in which it
considers it appropriate, may accept such instrument or other form of
communication evidencing the appointment of a proxy or 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 any general meeting.
24. List of Shareholders. A complete list of the Shareholders entitled to vote
at any meeting, arranged in alphabetical order, with the address of each,
and the number of Shares held by each, shall be prepared, or shall be
caused to be prepared, by the Secretary and shall be open to examination
of any Shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city in which the meeting is to
be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the place of the meeting during
the whole time thereof, and may be inspected by any Shareholder who is
present. The Share ledger shall be the only evidence as to the
Shareholders entitled to examine the Share ledger, the list required by
these Bye-laws or the books of the Company, or to vote in person or by
proxy at any meeting of the Shareholders.
25. Voting by Fiduciaries, Pledgors and Joint Owners. Persons holding Shares
in a fiduciary capacity shall be entitled to vote the Shares so held.
Persons whose Shares are pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books of the Company he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee, or
his proxy, may represent such Shares and vote thereon.
25.1 If Shares or other securities having voting power stand of record in the
names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants-in-common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same Shares, unless the Secretary is given written notice
to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds all;
and
(c) if more than one votes, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the Shares, or a beneficiary,
if any, may apply to such court as may have jurisdiction to appoint
an additional person to act with the persons so voting the Shares,
which shall then be voted as determined by a majority of such
persons and the person appointed by the Court. If the
9
instrument so filed shows that any such tenancy is held in unequal
interest, a majority or even-split for the purpose of this paragraph
shall be a majority or even-split in interest.
26. Consent of Shareholders in Lieu of Meeting. Except in the case of the
removal of auditors and Directors, anything which may be done by
Resolution in general meeting 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 in as many counterparts as may be
necessary.
ELECTION OF DIRECTORS
27. Nomination of Directors. Only persons who are nominated in accordance with
the following procedures shall be eligible for election as directors of
the Company. Nominations of persons for election to the Board may be made
at any Annual General Meeting of Shareholders, or at any Special General
Meeting of Shareholders called for the purpose of electing directors, (a)
by or at the direction of the Board (or any duly authorized committee
thereof), (b) by any Shareholders of the Company pursuant to the valid
exercise of the power granted under the Companies Act, or (c) by any
Shareholder of the Company (i) who is a Shareholder of record on the date
of the giving of the notice provided for in this Bye-law 27 and on the
record date for the determination of Shareholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Bye-law 27.
27.1 In addition to any other applicable requirements, for a nomination to be
made by a Shareholder, such Shareholder must have given timely notice
thereof in proper written form to the Secretary of the Company. To be
timely, a Shareholder's notice to the Secretary must be delivered to or
mailed and received at the Registered Office and the principal executive
offices of the Company as set forth in the Company's filings with the
Securities and Exchange Commission (a) in the case of an Annual General
Meeting, not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding Annual General
Meeting; provided, however, that in the event that the Annual General
Meeting is called for a date that is not within thirty (30) days before or
after such anniversary date, notice by the Shareholder in order to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
Annual General Meeting was mailed or such public disclosure of the date of
the Annual General Meeting was made, whichever first occurs; and (b) in
the case of a Special General Meeting called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the Special General
Meeting was mailed or public disclosure of the date of the Special General
Meeting was made, whichever first occurs.
27.2 To be in proper written form, a Shareholder's notice to the Secretary must
set forth (a) as to each person whom the Shareholder proposes to nominate
for election as a Director (i) the name, age, business address and
residential address of the person, (ii) the principal occupation or
employment of the person, (iii) the class or series and number of Shares
which are owned beneficially or of record by the person, and (iv) any
other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the Shareholder giving the notice (i) the name
and record address of such Shareholder, (ii) the class or series and
number of Shares which are owned beneficially or of record by such
Shareholder, (iii) a description of all arrangements or understandings
between such Shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to
be made by such shareholder, (iv) a representation that
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such shareholder intends to appear in person or by proxy at the meeting to
nominate the persons named, in its notice, and (v) any other information
relating to such shareholder that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a Director if elected.
27.3 No person shall be eligible for election as a Director of the Company
unless nominated in accordance with the procedures set forth in this
Bye-law 27. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
BOARD OF DIRECTORS
28. General Powers. The business and affairs of the Company shall be managed
by or under the direction of a Board, which may exercise all such
authority and powers of the Company and do all such lawful acts and things
as are not by Applicable Law, or by these Bye-laws, directed or required
to be exercised or done by the Shareholders or such other persons as
provided therein.
29. Number, Election and Term of Directors. The Board shall consist of not
less than five (5) and not more than eighteen (18) Directors. Directors
shall be elected or appointed at the Annual General Meeting or at any
Special General Meeting called for that purpose by a plurality of votes of
the Shareholders, except that any vacancies which result from the death,
resignation, retirement, disqualification or removal of a Director may be
filled by a majority of the Board then in office provided that any
Director elected to fill such a vacancy shall be subject to the same term
of office as the director being replaced. Any general meeting may
authorise the Board to fill any vacancy left unfilled at a general
meeting. The number of Directors to be elected at any time within the
minimum and maximum limitations specified herein shall be determined from
time to time by the Board pursuant to a resolution adopted by the vote of
a majority of the Board then in office provided always that there are at
least two Directors to manage the affairs of the Company and provide a
quorum for a meeting of the Board. Subject to the quorum requirements set
forth in Bye-law 36, during the existence of a vacancy on the Board the
remaining Directors shall have full power to act. No Director may appoint
any other person as an alternate director to replace himself or herself.
29.1 The Board shall be divided as equally as may be practical into three
classes. Each Director of the first class shall (unless his or her office
is vacated in accordance with these Bye-laws) serve initially until the
conclusion of the Annual General Meeting of the Shareholders held in the
calendar year 2002, and subsequently shall (unless his or her office is
vacated in accordance with these Bye-laws) serve for three-year terms,
each concluding at the third Annual General Meeting after such class of
Directors was last appointed or reappointed. Each Director of the second
class shall (unless his or her office is vacated in accordance with these
Bye-laws) serve initially until the conclusion of the annual general
meeting of the Shareholders held in the calendar year 2003, and
subsequently shall (unless his or her office is vacated in accordance with
these Bye-laws) serve for three-year terms, each concluding at the third
Annual General Meeting after such class of Directors was last appointed or
reappointed. Each Director of the third class shall (unless his or her
office is vacated in accordance with these Bye-laws) serve initially until
the conclusion of the Annual General Meeting of the Shareholders held in
the calendar year 2004, and subsequently shall (unless his or her office
is vacated in accordance with these Bye-laws) serve for three-year terms,
each concluding at the third annual general meeting after such class of
Directors together was last appointed or reappointed. At each annual
election thereafter, the successors of the Directors of the class whose
term expires in that year shall be elected to hold office for a term of
three years, so that the term of office of one class of Directors shall
expire each year. All Directors upon election
11
or appointment (but not on reappointment) must provide written acceptance
of their appointment, in such form as the Board may think fit, by notice
in writing to the Registered Office within thirty (30) days of their
appointment.
29.2 If the number of Directors is changed, any increase in directorships or
decrease in directorships shall be apportioned among the classes so as to
make all classes as nearly equal in number as practical. In case of any
increase in the number of Directors within the minimum and maximum
limitations specified in this Bye-law, additional Directors may be
appointed by the Board to fill such vacancy. Any such Director so
appointed shall hold office for a term that shall coincide with the
remaining term of that class to which he is elected and until his or her
successor shall have been elected and qualified. No decrease in the number
of Directors shall shorten the term of any incumbent Director.
29.3 The Shareholders may remove a Director prior to the expiration of his
term, only for cause, at a Special General Meeting called for that purpose
by the affirmative vote of a majority of the outstanding Shares entitled
to vote at such meeting, provided notice of any such meeting shall be
served upon the Director concerned not less than fourteen (14) days before
the meeting and he or she shall be entitled to be heard at that meeting.
Any vacancy created by the removal of a Director may be filled by the
affirmative vote of a majority of the outstanding shares entitled to vote
at the same meeting by the election of another Director in his or her
place or, in the absence of any such election, by the Board.
30. Resignations. In addition to those circumstances in which a Director may
be removed from office pursuant to these Bye-laws, the office of a
Director shall be vacated:
(1) if the Director resigns from office, on the date on which notice of
his or her resignation is delivered to the Registered Office or
tendered at a meeting of the Board or on such later date as may be
specified in such notice; or
(2) if the Director dies, becomes physically incapable of discharging
his duty to the Company in accordance with Applicable Laws or
becomes of unsound mind or a patient for any purpose of any statute
or applicable law relating to mental health, on the date of death or
the date on which the Board resolves that his or her office is
vacated; or
(3) on his or her becoming bankrupt; or
(4) on his or her being prohibited by Applicable Law from being a
Director; or
(5) on his or her ceasing to be a Director by virtue of any provision of
the Companies Acts.
31. Annual Board Meetings. The annual meeting of the Board for the purpose of
organizing the Board, appointing officers and members of committees and
transacting other business, shall be held immediately following the Annual
General Meeting of the Shareholders at the same place where such meeting
of Shareholders shall be held or at such place and time as may be
determined by the Board provided, however, that the time so fixed shall
permit the giving of notice as provided in these Bye-laws.
32. Regular Board Meetings. Additional regular meetings of the Board may be
held at such time and place as shall from time to time be determined by
the Board,provided, however, that the time so fixed shall permit the
giving of notice as provided in these Bye-laws.
33. Special Board Meetings. Special meetings of the Board may be called at any
time by the Chairman of the Board, the Vice Chairman, the President or any
Vice President or by two or more Directors and shall be held at such time
and place as may be fixed by the person or persons calling the meeting;
provided, however, that the time so fixed shall permit the giving of
notice as provided in these Bye-laws.
34. Notice of Board Meetings. Notice of a meeting of the Board shall be deemed
to be duly given to a Director if it is given to the Director personally
or by word of mouth or sent to the Director by
12
post, facsimile or other electronic means at his or her last known address
or any other address given by him or her to the Company for this purpose.
A Director may retrospectively waive the requirement for notice of any
meeting by consenting in writing to the business conducted at the meeting.
35. Organization of Board Meetings. The Chairman of the Board shall preside
over all meetings of the Board at which he is present. In his absence or
inability to act, the most senior Vice Chairman present at the meeting
shall preside. In the absence or inability to act of the Chairman or any
Vice Chairmen, the Board shall select a chairman of the meeting from among
the Directors present. The Secretary or, in his absence or inability to
act, an Assistant Secretary, or in his absence or inability to act,
another Director selected by the Board shall act as secretary of the
meeting and keep the minutes thereof.
36. Quorum and Voting at Board Meetings. At all meetings of the Board the
presence in person of the greater of two Directors, and one-third of the
total number of Directors constituting the entire Board then in office,
shall be necessary and sufficient to constitute a quorum for the
transaction of any business by the Board at such meeting, except as
otherwise provided by these Bye-laws or Applicable Law. At any meeting of
the Board, no action shall be taken (except adjournment, in the manner
provided below) until after a quorum has been established.
36.1 Except as otherwise provided by Applicable Law or these Bye-laws, the act
of a majority of Directors who are present at a meeting at which a quorum
previously has been established (or at any adjournment of such meeting,
provided that a quorum shall have previously been established at such
adjourned meeting) shall be the act of the Board, regardless of whether or
not a quorum is present at the time such action is taken. In determining
the number of directors who are present at the time any such action is
taken, any Director who is in attendance at such meeting but who, for just
cause, is disqualified to vote on such matter, shall not be considered as
being present at the time of such action for the purpose of establishing
the number of votes required to take action on any matter submitted to the
Board, but shall be considered as being present for purposes of
determining the existence of a quorum.
36.2 In the event a quorum cannot be established at the beginning of a meeting,
a majority of the Directors present at the meeting, or the Secretary of
the Company, if there be no Director present, may adjourn the meeting from
time to time until a quorum be present. Only such notice of such
adjournment need be given as the Board may from time to time prescribe.
37. Regulations of the Board. The Board may adopt such rules and regulations
for the conduct of its meetings and or the management of the business and
affairs of the Company as it may deem proper and not inconsistent with
Applicable Law and these Bye-laws.
38. Written Consent in Lieu of Board Meetings. A resolution in writing signed
or approved by all the Directors shall be as valid and effectual as a
resolution passed at a meeting of the Board duly called and constituted.
Such a resolution may be contained in one document or in several documents
in like form, each signed or approved by one or more of the Directors and
shall take effect as of the time of the last signature is affixed.
39. Telephonic Participation in Board Meetings. Any and all members of the
Board may participate in a meeting of the Board by means of a conference
telephone, satellite, video-conference or similar communications equipment
by means of which all persons participating in such meeting shall hear
each other; participation in a meeting pursuant to this Bye-law 39 shall
constitute presence in person at such meeting.
40. Compensation of Directors. Directors shall be entitled to such
compensation for their services as Directors and to such reimbursement for
any reasonable expense incurred in attending meetings of the Board as may
from time to time be fixed by the Board. The compensation may be on such
13
basis as is determined by the Board. Any Director may waive compensation
for any meeting. Any Director receiving compensation under these
provisions shall not be barred from serving the Company in any other
capacity and receiving compensation and reimbursement for reasonable
expenses for such other services.
41. Delegation of Board Powers. The Board may by power of attorney or
otherwise appoint any person, whether nominated directly or indirectly by
the Board, to be the attorney or agent of the Company and may delegate to
such person any of the Board's powers, authorities and discretions (with
power to sub-delegate) for such period and subject to such conditions as
it may think fit. The Board may revoke or vary any such appointment or
delegation, but no person dealing in good faith and without notice of such
revocation or variation shall be affected by any such revocation or
variation. Any such power of attorney or other documentation may contain
such provisions for the protection and convenience of persons dealing with
any such attorney or agent as the Board may think fit.
41.1 The Board may entrust to and confer upon any Officer any of its powers,
authorities and discretions (with power to sub-delegate) on 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
by any revocation or variation.
41.2 The Board may delegate any of its powers, authorities and discretions
(with power to sub-delegate) to any committee of the Board, consisting of
such number of Directors as it thinks fit. The Board may make any such
delegation on 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 such delegation, but no
person dealing in good faith and without notice of such revocation or
variation shall be affected by any revocation or variation. Any committee
so formed shall, in the exercise of the powers, authorities and
discretions so delegated, conform to any regulations that may be imposed
on it by the Board. The power to delegate to a committee extends to all
the powers, authorities and discretions of the Board generally and shall
not be limited by the fact that certain provisions of these Bye-laws
expressly refer to a committee or to the particular powers, authorities or
discretions of the Board or a Board committee.
COMMITTEES
42. Executive Committee. The Board may appoint an Executive Committee
consisting of one or more Directors, one of whom shall be designated as
Chairman of the Executive Committee. Each member of the Executive
Committee shall continue as a member thereof until the expiration of his
term as a Director or his earlier resignation or removal as a member of
the Executive Committee or as a Director or until his death.
43. Powers of the Executive Committee. The Executive Committee 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 shall
not have power or authority in reference to the following matters: (i)
approving or adopting, or recommending to the Shareholders, any action or
matter expressly required by Applicable Law to be submitted to
Shareholders for approval or (ii) adopting, amending or repealing any
Bye-law of the Company.
44. Procedures and Meetings of the Executive Committee. The Executive
Committee shall fix its own rules of procedure and shall meet at such
times and at such place or places as may be provided by such rules or as
the members of the Executive Committee shall fix. The Executive Committee
shall keep minutes of its meetings, which it shall deliver to the Board
from time to time. The Chairman of the Executive Committee or, in his
absence, a member of the Executive Committee chosen by a majority of the
members present shall preside at meetings of the Executive Committee, and
the Secretary, or in his absence, an Assistant Secretary, or in his
absence another member of
14
the Executive Committee chosen by the Executive Committee, shall act as
secretary of the Executive Committee.
45. Quorum and Voting of the Executive Committee. A majority of the Executive
Committee shall constitute a quorum for the transaction of business, and
the affirmative vote of a majority of the members present at any meeting
at which there is a quorum shall be required for any action of the
Executive Committee; provided, however, that when an Executive Committee
of one member is authorized under the provisions of these Bye-laws, that
one member shall constitute a quorum.
46. Other Committees. The Board may appoint such other committee or committees
as it shall deem advisable and with such rights, powers, and authority as
it shall prescribe. Each such committee shall consist of one or more
Directors. Unless otherwise provided by the Board or these Bye-laws, a
majority of the members of each such other committee shall constitute a
quorum, and the acts of a majority of the members present at a meeting at
which a quorum is present shall be the act of such committee.
47. Vacancies; Committee Changes. In the absence or disqualification of a
member of any committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
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.
47.1 The Board shall have the power at any time to fill vacancies in, to change
the membership of, and to discharge, any committee or any member of any
committee.
48. Compensation of Committee Members. Members of any committee shall be
entitled to such compensation for their services as members of the
committee and to such reimbursement for any reasonable expenses incurred
in attending committee meetings as may from time to time be fixed by the
Board. Any committee member may waive compensation for any meeting. Any
committee member receiving compensation under these provisions shall not
be barred from serving the Company in any other capacity and from
receiving compensation and reimbursement of reasonable expenses for such
other services.
49. Telephonic Participation in Committee Meetings. Any and all members of any
committee designated by the Board may participate in a meeting of such
committee by means of conference telephone, satellite, video-conference or
similar communications equipment by means of which all persons
participating in such meeting can hear each other, and participation in
such a meeting pursuant to this Bye-law shall constitute presence in
person at such meeting.
50. Written Consent in Lieu of Committee Meetings. A resolution in writing
signed or approved by all the members of any committee of the Board shall
be as valid and effectual as a resolution passed at a meeting of the
committee duly called and constituted. Such a resolution may be contained
in one document or in several documents in like form, each signed or
approved by one or more of the committee members and shall take effect as
of the time of the last signature is affixed.
NOTICES
51. Waiver of Notices. Whenever any notice is required to be given by
Applicable Law or these Bye-laws, a written waiver thereof; signed by the
person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to such notice. Neither
the business to be transacted at, nor the purpose of any general meeting
of Shareholders, any meeting of other securityholders, the Board, or any
committee of the Board need be specified in any written waiver of notice
unless so required by Applicable Law or these Bye-laws.
52. Attendance at Meetings. Attendance of a person at any meeting, whether of
Shareholders or other securityholders (in person or by proxy), or the
Board or any committee of the Board, shall
15
constitute a waiver of notice of such meeting, except when such person
attends such meeting for the express purpose of objecting, and objects, at
the beginning of the meeting, to the transaction of any business on the
ground that the meeting is not legally called or convened.
OFFICERS
53. Number and Qualifications of Officers. The officers of the Company shall
include the Chairman, one or more Deputy Chairmen, and a Secretary and may
include a President, one or more Vice Presidents, a Treasurer and such
other officers as may be elected or appointed in accordance with the
provisions of these Bye-laws. As and when elected or appointed the
officers shall have such power and perform such duties as set out in these
Bye-laws. Any number of offices, except the offices of President and
Secretary, may be held by the same person.
54. Selection, Term of Office and Qualification of Officers. The officers
shall be elected from time to time by the Board at its first regular
meeting after each Annual General Meeting of Shareholders. Each officer
shall hold his office until his successor is elected and qualified or
until he shall resign in the manner provided in these Bye-laws, or until
he shall have been removed in the manner provided in these Bye-law, or
until his death. Other officers, including without limitation one or more
Assistant Treasurers and one or more Assistant Secretaries shall be chosen
in such manner, hold office for such period, have such authority, perform
such duties and be subject to removal as may be prescribed by the Board.
55. Resignations of Officers. Any officer may resign at any time upon written
notice to the Board, the President or the Secretary. Any such resignation
shall take effect at the time specified therein or, if the time when it
shall become effective shall not be specified therein, immediately upon
its receipt thereof by the Board or any such officer.
56. Removal of Officers. Any officer may be removed at any time, either with
or without cause, by the Board; and any officer not elected by the Board
may be removed in such manner as may be determined by the Board. Removal
from office however, shall not prejudice the contractual rights, if any,
of the person removed except as provided in such contract or such rights
as otherwise may be afforded by Applicable Law.
57. Vacancies in any Office. Any vacancy occurring in any office of the
Company which is required by these Bye-laws to be elected by the Board,
whether by death, resignation, removal or otherwise, shall be filled for
the unexpired portion of the term by the Board. A vacancy in any other
office shall be filled in such manner as may be determined by the Board.
58. Chairman. The Chairman, subject to the direction of the Board, shall have
general charge of the business, affairs and property of the Company and
general supervision over its other officers and agents and shall see that
all orders and resolutions of the Board are carried into effect and,
subject to appointment by the Board, may also hold such other office
including Chief Executive Officer of the Company.
59. Deputy Chairman. The Deputy Chairman or, in the event there be more than
one, the Deputy Chairmen in the order designated, or in the absence of any
designation, in the order of their seniority, shall have such powers and
perform such duties as may from time to time be assigned to him by the
Board and shall report to the Chairman, subject to the control of the
Board.
60. The President. The President, subject to the control of the Chairman and
the Board, shall have general and active management of the business of the
Company and the general and active supervision and direction over the
business operations and affairs of the Company and over its several
officers, agents and employees and, subject to the appointment by the
Board, may also hold such other office including Chief Operating Officer
of the Company. He shall, unless also a Director, be an ex officio member
of all committees of the Board. In general, he shall have such
16
other powers and shall perform such other duties as usually pertain to the
office of President or as from time to time may be assigned to him by the
Board or these Bye-laws.
61. Vice Presidents. The Vice President or, in the event there be more than
one, the Vice Presidents in the order designated, or in the absence of any
designation, in the order of their seniority, shall have such powers and
perform such duties as from time to time may be assigned to him by the
Board.
62. The Treasurer and Assistant Treasurers.
The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds
and securities of the Company;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Company;
(c) cause all moneys and other valuables to be deposited to the credit
of the Company in such depositories as may be designated by the
Board;
(d) receive, and give receipts for moneys due and payable to the Company
from any source whatsoever;
(e) disburse the funds of the Company and supervise the investment of
its funds as ordered or authorized by the Board, taking proper
vouchers therefor;
(f) render to the President and the Board at the regular meetings of the
Board, or whenever they may request it, an account of all his
transactions as Treasurer and of the financial condition of the
Company; and
(g) in general, have all the powers and perform all the duties incident
to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Board or the President.
The Assistant Treasurer or Assistant Treasurers, if any, shall in the
absence or disability of the Treasurer or at his request, perform his
duties and exercise his powers and authority as may be assigned to him by
the Board or the President.
63. The Secretary and Assistant Secretaries.
The Secretary shall:
(a) attend all meetings of the Board, any committee of the Board,
Shareholders and other securityholders and record all votes and the
proceedings of such meetings in minute books to be kept by him for
that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these Bye-laws and as required by Applicable Law;
(c) be custodian of the records and the seal of the Company and affix
and attest the seal to all Share certificates of the Company (unless
the seal of the Company on such certificates shall be a facsimile,
as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Company under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by Applicable Law to be kept and
filed are properly kept and filed; and
17
(e) in general, have all the powers and perform all the duties incident
to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board or the President.
The Assistant Secretary or Assistant Secretaries, if any, shall, in the
absence or disability of the Secretary or at his request, perform his
duties and exercise his powers and authority as may be assigned to him by
the Board or the President.
64. Compensation of Officers. The compensation of all officers of the Company
shall be fixed from time to time by the Board; no officer of the Company
shall be prevented from receiving compensation because he is also a
Director of the Company.
SHARE CERTIFICATES, TRANSFERS AND TRANSMISSIONS
65. Share Certificates. Certificates for Shares of the Company shall be in
such form, not inconsistent with these Bye-laws, as shall be approved by
the Board and shall be signed by or in the name of the Company by the
Chairman or by the President or a Vice President, and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary,
provided that the signatures of any such officers thereon may be
facsimiles. The seal of the Company shall be impressed, by original or by
facsimile, printed or engraved, on all such certificates. A certificate
may also be signed by the transfer agent and a registrar as the Board may
determine, and in such case the signature of the transfer agent or the
registrar may also be facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may nevertheless be issued by the Company with the same effect as if he
were such officer, transfer agent or registrar at the date of issue.
Notwithstanding the foregoing, at the discretion of the Board or the
Secretary, the Company may issue Shares in uncertificated form upon the
initial issuance of such Shares or thereafter upon surrender of any
certificates representing such Shares.
66. The Share Register. The Register shall be kept in the manner prescribed by
the Companies Acts at the Registered Office or at such other place in
Bermuda as may be authorised by the Board from time to time. The Company
may also keep one or more branch registers at such place or places outside
Bermuda to the extent and in the manner permitted by the Companies Acts,
and the Board may make such regulations as it thinks fit regarding the
keeping of any branch register and may revoke or vary any such
regulations. The Board may authorise any Share on the Register to be
included in a branch register or any Share registered on a branch register
to be registered on another branch register, provided that at all times
the Register is maintained in accordance with the Companies Acts.
67. Registration of Transfers. Registration of transfer of certificates
representing Shares shall be effected only on the books of the Company
only upon authorization by the registered holder thereof, or by his
attorney authorized by power of attorney duly executed and filed with the
Secretary or with a designated transfer agent or transfer clerk, and upon
surrender to the Company or any transfer agent of the Company of the
certificate or certificates being transferred, which certificate shall be
properly endorsed or accompanied by a duly executed share transfer in the
usual common form or in any other form that the Board may from time to
time approve, proof of all necessary government and regulatory approvals
governing the transfer of the Shares and the payment of all taxes thereon.
Whenever a certificate is endorsed by or accompanied by a share transfer
form executed by someone other than the person or persons named in the
certificate, evidence of authority to transfer shall also be submitted
with the certificate. Whenever any transfers of Shares shall be made for
collateral security and not absolutely, and both the transferor and
transferee request the Company to do so, such fact shall be stated in the
entry of the transfer.
68. Transmission of Shares. In the case of the death of a Shareholder, the
survivor or survivors, or the estate representative, as appropriate, shall
be the only person or persons recognised by the
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Company as having any title to Shares held by such holder. Nothing in
these Bye-laws shall release the estate of a deceased holder from any
liability in respect of any Share held by such holder either solely or
jointly with other persons. In this Bye-law, estate representative means
the person to whom probate or letters of administration or confirmation as
executor has or have been granted under the laws applicable to the estate
of the deceased Shareholder or, failing 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.
68.1. In the case of a person becoming entitled to a Share in consequence of the
death of a Shareholder or otherwise by operation of Applicable Law, the
Board may require the production to the Company of such evidence of such
person's entitlement as is prescribed by the Companies Acts or, to the
extent that no such evidence is prescribed, as may from time to time be
required by the Board. Upon production of such evidence the name and
address of the person so entitled shall be noted in the Register.
68.2. Subject to these Bye-laws, any Person Entitled by Transmission to a Share
shall be entitled to receive (and may give a discharge for) any dividends
or other moneys payable in respect of the Share, to attend and vote in
respect of the Share at general meetings of the Company and of the
relevant class of Shareholders and generally to exercise in respect of the
Share all of the rights or privileges of a Shareholder as if such person
were registered as the holder of the Share.
68.3. Any Person Entitled by Transmission to a Share may elect either to be
registered as the holder of the Share or to have a nominee registered as
the transferee. Any such person electing to be registered shall deliver or
send to the Company a signed written notice stating that such person so
elects. Any such person electing to have a nominee registered shall
signify that election by signing an instrument of transfer in favour of
such nominee. All the provisions of these Bye-laws relating to the right
to transfer and the registration of transfer of Shares shall apply to any
such notice or instrument of transfer 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.
68.4. The Board may at any time give notice requiring a Person Entitled by
Transmission to a Share to elect either to be registered or to transfer
the Share, and if the person does not comply with the notice within sixty
(60) days the Board may withhold payment of all dividends and other moneys
payable in respect of the Share until the person complies with the notice.
68.5. Subject to any directions of the Board from time to time in force, the
Secretary may exercise all powers and discretions of the Board under this
Bye-law 68.
69. Determination of Shareholders. Except as otherwise provided by Applicable
Law, the Company shall be entitled to recognize the exclusive right of a
person in whose name any Share or Shares stand on the register of
Shareholders as the owner of such Share or Shares for all purposes,
including, without limitation, the rights to receive dividends or other
distributions, and to vote as such owner, the Company may hold any such
Shareholder of record liable for calls and assessments and the Company
shall not be bound to recognize any trust or any equitable, contingent, or
legal claim to or interest in any such Share or Shares on the part of any
other person whether or not it shall have express or other notice thereof.
70. Regulations, Governing Issuance and Transfer of Shares. The Board shall
have the power and authority to make all such rules and regulations, not
inconsistent with these Bye-laws, as it may deem expedient concerning the
issue, transfer and registration of Shares. It may appoint, or authorize
any officer or officers to appoint, one or more transfer agents or one or
more transfer clerks and one or more registrars and may require all Share
certificates to bear the signature or signatures of any of them.
71. Fixing Record Date. In order that the Company may determine the
Shareholders of record entitled to notice of, or to vote at, any meeting
of Shareholders or any adjournment thereof, or entitled to
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express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of Share or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which
shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other
action. Except as otherwise provided by Applicable Law, or these Bye-laws
or by resolution of the Board:
(1) The record date for determining Shareholders entitled to notice of
or to vote at a meeting of Shareholders shall be at the close of
business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held;
(2) The record date for determining Shareholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which
the first written consent is expressed; and
(3) The record date for determining Shareholders for any other purpose
shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
71.1 A determination of Shareholders of record entitled to notice of or to vote
at a meeting of Shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
72. Lost, Stolen or Destroyed Share Certificates. The holder of any
certificates representing Shares shall immediately notify the Company of
any loss, theft, destruction or mutilation of such certificate, and the
Board may authorize the issuance of a new certificate in lieu thereof upon
satisfactory proof of such loss, theft or destruction upon the giving of
an open penalty bond with surety satisfactory to the Treasurer and the
Company's counsel, to protect the Company or any person injured on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of a new certificate from any liability or expense which it or
they may incur by reason of the original certificates remaining
outstanding and upon payment of the Company's reasonable costs incident
thereto.
DIVIDENDS
73. Dividends and Reserves. Subject to the Companies Act and the rights
attaching to a particular class or series of Shares, the Board may, out of
funds available therefor, declare dividends upon Shares to be paid to the
Shareholders, according to their respective rights and interests as and
when they deem expedient, and may fix the time for payment of such
dividends. The Company may deduct from any dividend, distribution or other
monies payable to a Shareholder by the Company on or in respect of any
Shares all sums of money (if any) presently payable by the Shareholder to
the Company on account of calls or otherwise in respect of Shares. No
dividend, distribution or other monies payable by the Company on or in
respect of any Share shall bear interest against the Company.
WINDING UP
74. Winding-Up. If the Company is wound up, the liquidator may, with the
sanction of a Resolution and any other sanction required by the Companies
Acts:
(1) divide among the Shareholders in cash or in kind the whole or any
part of the assets of the Company (whether they consist of property
of the same kind or not) and for such purposes set such value as the
liquidator deems fair on any property to be so divided, and
determine how such division shall be carried out as between the
Shareholders or different
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classes of Shareholders, provided that in all events, amounts will
be distributed pursuant to the rights attached to those Shares then
outstanding; and
(2) vest the whole or any part of such assets in trustees upon such
trusts for the benefit of the contributories as the liquidator, with
the like sanction, thinks fit, but so that no Shareholder shall be
compelled to accept any Shares or other assets upon which there is
any liability.
EXEMPTION AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
75. Exemption and Indemnification of Officers. Subject always to these
Bye-laws, no Officer shall be liable for the acts, receipts, neglects or
defaults of any other Officer nor shall any Officer be liable in respect
of any negligence, default or breach of duty on his or her own part in
relation to the Company or any Subsidiary, or for any loss, misfortune or
damage which may happen, in or arising out of the actual or purported
execution or discharge of his or her duties or the exercise or purported
exercise of his or her powers or otherwise in relation to or in connection
with his or her duties, powers or office.
75.1. Subject always to these Bye-laws, every Officer shall be indemnified and
held harmless out of the funds of the Company against all liabilities,
losses, damages or expenses (including but not limited to liabilities
under contract, tort and statute or any applicable foreign law or
regulation and all legal and other costs and expenses properly payable)
incurred or suffered by the Officer arising out of the actual or purported
execution or discharge of the Officer's duties (including. without
limitation, in respect of his or her service at the request of the Company
as a director, officer, partner, trustee, employee, agent or similar
functionary of another person) or the exercise or purported exercise of
the Officer's powers or otherwise, in relation to or in connection with
the Officer's duties, powers or office (including but not limited to
liabilities attaching to the Officer and losses arising by virtue of any
rule of law in respect of any negligence, default, breach of duty or
breach of trust of which such Officer may be guilty in relation to the
Company or any Subsidiary of the Company).
75.2. Every Officer shall be indemnified out of the funds of the Company against
all liabilities arising out of the actual or purported execution or
discharge of the Officer's duties or the exercise or purported exercise of
the Officer's powers or otherwise, in relation to or in connection with
the Officer's duties, powers or office, incurred by such Officer in
defending any proceedings, whether civil or criminal, in which judgement
is given in the Officer's favour, or in which the Officer is acquitted, or
in connection with any application under the Companies Acts in which
relief from liability is granted to the Officer by the court.
75.3. In this Bye-law 75 (i) the term "Officer" includes, in addition to the
persons specified in the definition of that term in Bye-law 1, the
Resident Representative, a member of a committee constituted under these
Bye-laws, any person acting as an Officer or committee member in the
reasonable belief that the Officer has been so appointed or elected,
notwithstanding any defect in such appointment or election, and any person
who formerly was an Officer or acted in any of the other capacities
described in this clause (i) and (ii) where the context so admits,
references to an Officer include the estate and personal representatives
of a deceased Officer or any such other person.
75.4. The provisions for exemption from liability and indemnity contained in
this Bye-law shall have effect to the fullest extent permitted by
Applicable Law, but shall not extend to any matter which would render any
of them void pursuant to the Companies Acts.
75.5. To the extent that any person is entitled to claim an indemnity pursuant
to these Bye-laws in respect of an amount paid or discharged by him, the
relevant indemnity shall take effect as an obligation of the Company to
reimburse the person making such payment (including advance payments of
fees or other costs) or effecting such discharge.
75.6. The rights to indemnification and reimbursement of expenses provided by
these Bye-laws shall not be deemed to be exclusive of, and are in addition
to, any other rights to which a person may be
21
entitled. Any repeal or amendment of this Bye-law 75 shall be prospective
only and shall not limit the rights of any Officer or the obligation of
the Company with respect to any claim arising prior to any such repeal or
amendment.
75.7. In so far as it is permissible under Applicable Law, each Shareholder and
the Company agree to waive any claim or right of action the Shareholder or
it may at any time have, whether individually or by or in the right of the
Company, against any Officer on account of any action taken by such
Officer or the failure of such Officer to take any action in the
performance of his duties with or for the Company, provided however, that
such waiver shall not apply to any claims or rights of action arising out
of the fraud or dishonesty of such Officer or to recover any gain,
personal profit or advantage to which such Officer is not legally
entitled.
75.8. Subject to the Companies Acts, expenses incurred in defending any civil or
criminal action or proceeding for which indemnification is required
pursuant to this Bye-law 75 shall be paid by the Company in advance of the
final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the indemnified party to repay such amount
if it shall ultimately be determined that the indemnified party is not
entitled to be indemnified pursuant to this Bye-law 75.
75.9 Each Shareholder of the Company, by virtue of its acquisition and
continued holding of a Share, shall be deemed to have acknowledged and
agreed that the advances of funds may be made by the Company as aforesaid,
and when made by the Company under this Bye-law 75 are made to meet
expenditures incurred for the purpose of enabling such Officer to properly
perform his or her duties as an Officer.
ACCOUNTING RECORDS
76. Accounting Records. The Board shall cause accounting records of the
Company to be kept in accordance with the requirements of the Companies
Acts.
76.1. The records of account shall be kept at the Registered Office or at such
other place or places as the Board thinks fit. 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 are required by the Companies
Acts to be so kept. The records of account shall at all times be open to
inspection by the Directors and, to the extent prescribed by the Companies
Acts, by the Resident Representative. No Shareholder (other than a
Director) shall have any right to inspect any accounting record or book or
document of the Company except as conferred by Applicable Law or
authorised by the Board or by Resolution.
76.2. The Board shall arrange for the financial statements of the Company to be
prepared and audited in respect of each year or other period from time to
time fixed by the Board and shall arrange for those financial statements
to be made available to Shareholders and laid before the Shareholders in
general meeting in accordance with the requirements of the Companies Acts.
AUDITORS
77. Auditors. Auditors shall be appointed and their duties regulated in
accordance with the Companies Acts, Applicable Law and such requirements
not inconsistent with the Companies Acts and Applicable Law as the Board
may from time to time determine.
GENERAL PROVISIONS
78. Execution of Contracts, Papers and Documents. Except as otherwise required
by Applicable Law or these Bye-laws, any contract or other instrument may
be executed and delivered in the name and on behalf of the Company by such
officers or employees of the Company, or such other person as the Board
may from time to time determine, or in the absence of such determination,
by the Chairman or the President. Such authority may be general or
confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these Bye-laws,
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no officer or agent or employee shall have any power or authority to bind
the Company by any contract or engagement or to pledge its credit or to
incur a pecuniary liability for any purpose.
79. Voting Shares in Other Companies. The Company may vote any and all shares
and other securities having voting rights which may at any time and from
time to time be held by it in any other company or companies and such vote
may be cast either in person or by proxy by such officer of the Company as
the Board may appoint or, in the absence of such appointment, by the
Chairman or President.
80. Cheques, Drafts, etc. All cheques, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Company, and all
notes or other evidences of indebtedness of the Company, shall be signed
in the name and on behalf of the Company by such persons and in such
manner as shall from time to time be authorized by the Board.
81. Corporate Seal. The Seal shall consist of a circular metal device with the
name of the Company around its outer margin and the country and the year
of incorporation across its centre. The Company may also have for use in
any territory outside Bermuda one or more additional Seals, each of which
shall be a duplicate of the Seal.
81.1 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 of the Board. Subject
to the Companies Acts, and except as otherwise provided in these Bye-laws,
any instrument to which a Seal is affixed shall be signed by an Officer or
by any person who has been authorised by the Board either generally or
specifically to attest to the use of a Seal.
82. Fiscal Year. The fiscal year of the Company shall be a period of twelve
(12) calendar months beginning January 1 and ending on the following
December 31 in the same year.
TRANSACTIONS WITH DIRECTORS AND OFFICERS
83. Affiliated Transactions. A Director may hold any other office or place of
profit with the Company (except that of auditor) in addition to his or her
office of Director for such period and upon such terms as the Board may
determine, and may be paid such extra remuneration for so doing (whether
by way of salary, commission, participation in profits or otherwise) as
the Board may determine, in addition to any remuneration or other amounts
payable to a Director pursuant to any other Bye-law.
83.1 A Director may act in a professional capacity for the Company (otherwise
than as auditor) and the Director shall be entitled to remuneration for
professional services as if he or she were not a Director.
83.2 Subject to the Companies Acts, a Director, (i) may be a party to, or
otherwise interested in, any transaction or arrangement with the Company
or in which the Company is otherwise interested, and (ii) may be a
director or other officer of, or employed by, or a party to any
transaction or arrangement with, or otherwise interested in, any company
or other person promoted by the Company or in which the Company is
interested. A Director who in any way, whether directly or indirectly, to
his or her knowledge has a material interest in a contract with the
Company or any of its subsidiaries shall declare the nature of the
Director's interest at the first opportunity at a meeting of the Board at
which the question of entering into the contract is first taken into
consideration, if the Director knows this interest then exists, or in any
other case at the first meeting of the Board after learning that he or she
is or has become so interested.
83.3 Subject to the Companies Acts and any further disclosure required thereby,
a general notice to the Directors by a Director or other Officer declaring
that he or she is a director or officer of any company, or has a material
interest in, any company or person and is to be regarded as interested in
any transaction or arrangement made with that company or person, shall be
a sufficient declaration of interest in relation to any transaction or
arrangement so made.
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83.4 So long as, where it is necessary, a Director declares the nature of his
or her interest in accordance with this Bye-law, a Director shall not by
reason of his or her office be accountable to the Company for any benefit
the Director derives from any office or employment to which these Bye-laws
allow him or her to be appointed or from any transaction or arrangement in
which these Bye-laws allow the Director to be interested, and no such
transaction or arrangement shall be avoided on the ground of any such
interest or benefit.
84. Determining Quorum in the Event of Common or Interested Director. Upon
declaring their interest, common or interested Directors may be counted in
determining the presence of a quorum and, subject to these Bye-laws, may
vote at a meeting of the Board or of a committee thereof which considered
or authorized the contract or transaction.
CONTINUATION
85. Continuance. Subject to the Companies Acts, approval of the Board and a
Resolution passed by a majority of the issued Shares entitled to vote may
approve the discontinuation of the Company in Bermuda and the continuation
of the Company in a jurisdiction outside Bermuda.
AMALGAMATION
86. Amalgamation. Any resolution proposed for consideration at any general
meeting to approve the amalgamation of the Company with any other company,
wherever incorporated, shall require the approval of the majority provided
for in Bye-law 22 at such meeting and the quorum for such meeting shall be
that required in Bye-law 19 and a poll may be demanded in respect of such
resolution in accordance with the provisions of the Companies Act.
SALE, LEASE OR EXCHANGE OF ASSETS
(1)87. Sale, Lease or Exchange of Assets. The Board of Directors is hereby
expressly authorized to sell, lease or exchange all or substantially
all of the Company's property and assets, including the Company's
goodwill and its corporate franchises, upon such terms and conditions
and for such consideration, which may consist in whole or in part of
money or other property, including shares of stock in, and/or other
securities of, any other corporation or corporations, as the Board of
Directors deems expedient and for the best interests of the Company,
subject to the authorization by a resolution adopted by the
affirmative vote of the holders of record of a majority of the
outstanding shares of capital stock of the Company entitled to vote on
the relevant record date with respect thereto. Notwithstanding
authorization or consent to a proposed sale, lease or exchange of the
Company's property and assets by the shareholders, the Board of
Directors may abandon such proposed sale, lease or exchange without
further action by the shareholders, subject to the rights, if any, of
third parties under any contract relating thereto.
ALTERATION OF BYE-LAWS
(2)88. Alteration of Bye-laws. These Bye-laws may be revoked or amended only
by the Board, which may from time to time revoke or amend them in any
way by a resolution of the Board, but no such revocation or amendment
shall be operative unless and until it is approved by a Resolution of
the holders of a majority of the issued Shares entitled to vote.
--------------------
(1)Bye-law 87 inserted by amendment adopted at AGM held on 7 June 2005
(2)Bye-law 88 renumbered by amendment adopted at AGM held on 7 June 2005
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